Graham v Welch

[2012] QCA 282

SUPREME COURT OF QUEENSLAND

CITATION:

Graham & Ors v Welch [2012] QCA 282

PARTIES:

TIM GRAHAM
(first applicant)
JANE GRAHAM
(second applicant)
NRMA INSURANCE AUSTRALIA LIMITED
ABN 11 000 016 722
(third applicant)
v
FLORENCE AGNES WELCH
(respondent)

FILE NO/S:

Appeal No 5119 of 2012
DC No 3948 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

19 October 2012

DELIVERED AT:

Brisbane

HEARING DATE:

15 October 2012

JUDGES:

Muir JA and Atkinson and Applegarth JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Leave to appeal be granted.

2.    The appeal be allowed.

3.    The order made on 16 May 2012 be set aside.

4.    Enter judgment for the defendants.

5.    The respondent pay the applicants’ costs of the proceeding in the District Court and of the appeal to be assessed on the standard basis.

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – OCCUPIERS – where respondent was injured after slipping on a gumnut on the stairs of her niece’s house – where evidence showed that first and second applicants regularly swept the stairs – whether the risk was not insignificant – whether a reasonable person in the position of the first and second applicants would have removed the gum tree from which the gumnut fell – whether a substantial injustice was occasioned – whether leave to appeal should be granted

Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010 (Qld), s 98
Civil Liability Act 2003 (Qld), s 9
Courts Reform Amendment Act 1997 (Qld), s 118(3)
District Court of Queensland Act 1967 (Qld), s 118
Magistrates Courts Act 1921 (Qld), s 2

ACI Operations Pty Ltd v Bawden [2002] QCA 286, considered
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7, cited
Hackshaw v Shaw (1984) 155 CLR 614; [1984] HCA 84, cited
Neindorf v Junkovic (2005) 222 ALR 631; [2005] HCA 75, considered
Pickering v McArthur [2005] QCA 294, considered
Smith v Ash [2011] 2 Qd R 175; [2010] QCA 112, considered
Woodward v The Proprietors of Lauretta Lodge[1997] QCA 183, followed
Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12, followed

COUNSEL:

G W Diehm SC for the applicant
S J Given for the respondent

SOLICITORS:

Moray & Agnew for the applicant
Sinnamon Lawyers for the respondent

1. MUIR JA: I agree with the reasons of Atkinson J and with the orders she proposes, but wish to make some additional observations.  Trees on suburban residential allotments contribute significantly to their amenity and that of the surrounding neighbourhood.  Their value is not merely aesthetic in nature, although that is obviously important in itself.  As well as providing shade and shelter, they can act as wind breaks, help retain soil,…