Junkovic v Neindorf

Case [2004] SASC 325

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

JUNKOVIC v NEINDORF

Judgment of The Full Court

(The Honourable Chief Justice Doyle, The Honourable Justice Nyland and The Honourable Justice Gray)

15 October 2004

TORTS - NEGLIGENCE - ESSENTIALS OF  ACTION FOR NEGLIGENCE - DUTY OF CARE - SPECIAL RELATIONSHIPS AND DUTIES - OCCUPIERS

Occupiers liability - standard of care owed by owner of domestic premises to public entering for the purposes of a 'garage sale' - duty of care owed by respondent to all entrants scope of duty - standard of care - duty of care breached - failure to take proper precautions - warning of risk - injury reasonably forseeable - contributory negligence - appeal allowed.

Wrongs Act 1936 (SA) Part 1B; Civil Liability Act 2004 (SA), referred to.
Ghantous v Hawkesbury City Council (2001) 206 CLR 512; Webb v South Australia (1982) 56 ALR 912; Australian Safeway Stores v Zalunza (1987) 162 CLR 479; Kocis v S E Dickens Pty Ltd [1998] 3 VR 408; Hackshaw v Shaw (1984) 155 CLR 614; Nagle v Rottnest Island Authority (1992) 177 CLR 423; Wyong Shire Council v Shirt (1980) 146 CLR 40; Romeo v Conservation Council of Northern Territory (1998) 192 CLR 431; Park v Anzil (1998) 192 CLR 431; Cutts v O'Neill (1998) 72 SASR 56; Brady v Girvan Bros Pty Ltd (1998) NSWLR 241, considered.

JUNKOVIC v NEINDORF
[2004] SASC 325

Full Court:   Doyle CJ, Nyland and Gray JJ

  1. DOYLE CJ           Gray J has set out in his reasons the facts on the basis of which the appeal is to be decided.  He has summarised the reasons of the Magistrate and those of the Judge who reversed the Magistrate’s decision.  He has set out the relevant provisions of the Civil Liability Act 1936 (SA) (formerly the Wrongs Act).  There is no need for me to repeat these matters.  I turn immediately to the issues for decision.

    The issue for decision

  2. The issue is whether Ms Neindorf is liable to Ms Junkovic for injury (a fractured bone in the foot) sustained when Ms Junkovic walked along a concrete driveway that led from the road frontage of Ms Neindorf’s house to a carport adjacent to the house.  The driveway, carport and house were on land occupied by Ms Neindorf. It was an ordinary suburban house property. Ms Junkovic put her foot on an expansion joint between two slabs or sections of the drive, at a point at which one section was about 10 mm to 12 mm higher than the other. Ms Junkovic had not noticed the unevenness.  It caused her to stumble and in doing so she suffered injury. Ms Junkovic had come to the house because Ms Neindorf had advertised a garage sale on the day in question.

  3. The issue can be analysed in terms of whether Ms Neindorf owed Ms Junkovic a duty of care (or, more precisely, in terms of the scope of the duty)…

Continue reading Junkovic v Neindorf

Sign in free to access the full text

Details
AGLC
Junkovic v Neindorf [2004] SASC 325
Case
[2004] SASC 325
Decision Date

CaseChat Overview and Summary

In the case of Junkovic v Neindorf, the plaintiff, Ms Junkovic, brought an action against the defendant, Ms Neindorf, alleging negligence in relation to a garage sale conducted on Ms Neindorf's property. Ms Junkovic claimed that she had injured her foot while walking on uneven concrete paving on Ms Neindorf's property during the course of the sale. The case was heard in the Supreme Court of South Australia, where the primary judge dismissed Ms Junkovic's action. Ms Junkovic appealed this decision to the Full Court of the Supreme Court, which found in her favour and remitted the matter to the Magistrates Court for trial. Ms Neindorf appealed to the High Court.

The primary legal issue before the court was whether Ms Neindorf owed a duty of care to Ms Junkovic, and if so, whether she had breached that duty by failing to provide a safe walking surface at her property. A secondary issue was whether Ms Junkovic had herself been negligent in failing to take reasonable care for her own safety. Additionally, Ms Neindorf challenged certain findings of fact made by the trial judge.

The Full Court of the Supreme Court found that Ms Neindorf owed a duty of care to Ms Junkovic as a visitor to her property, and that this duty encompassed taking reasonable care to avoid causing foreseeable harm. However, the court held that the duty of care did not extend to taking precautions to prevent injury attributable to the unevenness in the paving. The court found that Ms Neindorf had breached her duty of care by failing to warn visitors of the potential risk posed by the uneven paving, and by not taking steps to barricade the damaged area. The court also found that Ms Junkovic had not been contributory negligent in the circumstances. The High Court upheld the Full Court's findings on these issues.

The High Court's decision in Junkovic v Neindorf clarified the scope of the duty of care owed by an occupier of private premises to visitors, and confirmed that such a duty does not extend to taking precautions to prevent injury attributable to inherent dangers on the property. The court emphasised the importance of taking reasonable care to avoid causing foreseeable harm, and the need for occupiers of premises to identify and neutralise hazards where possible. The decision highlights the need for property owners to take reasonable steps to warn visitors of potential risks and to take measures to prevent injury where practicable.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

At issue in this appeal is the standard of care owed by an owner of domestic premises to members of the public entering the premises for the purpose of a garage sale. Whether Ms Junkovic failed to take reasonable care for her own safety was also in issue. In addition, by way of a notice of alternative contention, Ms Neindorf invited the court to consider the correctness of certain findings of fact.Facts On 3 February 2000 Ms Neindorf placed an advertisement in The Trading Post advertising a garage sale to be conducted at her suburban domestic premises on the following weekend, 5-6 February 2000. The sale was to commence at 8.30am. The advertisement provided:Moving sale, Saturday and Sunday 5th and 6th February 8.30am to 6pm, household effects etc, [address of premises] The term ‘garage sale’ is simply a reference to the sale of items from a person’s home. Other states in Australia use other terminology to describe this activity. Of relevance is the fact that garage sales have become very popular in suburban Adelaide. The daily press, in particular the weekend press and other public broadsheets regularly advertise garage sales. It is not possible to drive through suburban Adelaide on a weekend without being confronted by placards on street corners and outside homes advertising garage sales. It has become a popular way for people to dispose of unwanted goods and perhaps engage in more serious merchandising. At about 8.40am on 5 February 2000 Ms Junkovic, a 57 year old woman, attended Ms Neindorf’s property for the purpose of the sale. The weather was clear and sunny. While walking along the left side of the driveway within the property, Ms Junkovic’s attention was drawn to garden goods displayed on the right side of the driveway, probably at or under a carport. She was not looking were she was walking and did not notice the uneven surface. She stepped with her right foot over an expansion of the joint between two concrete slabs where one side was higher than the other. The difference in height caused unevenness. The height differential between the two concrete slabs was approximately 10 or 12 millimetres. Ms Junkovic rolled her foot as she placed it on the expansion joint. She stumbled and touched the ground with her hand but did not fall. Her shoe did not come off. She felt a crack and immediate pain in her foot. Ms Junkovic drove herself to a nearby hospital where she received treatment. A diagnosis was made of a fracture to the base of the fifth metatarsal of the right foot. Her foot was placed in plaster. She experienced pain in her foot. She underwent physiotherapy treatment and was prescribed orthotics. She required assistance with personal hygiene, household chores and the preparation of meals from her family for a number of months. Her condition eventually improved and at the time of trial she had regained almost all of her prior independence.Magistrates Court Proceedings In her statement of claim, Ms Junkovic claimed that Ms Neindorf was negligent in that she failed to:-provide a walking surface which was free of obstruction in an area which she knew or ought to have known the public would access;-maintain the walking surface in a manner which provided safe and uninhibited access;-carry out repairs of broken and uneven paving when she knew or ought to have known that the damage posed a risk of injury;-warn the public of the potential risk;-take steps to barricade the damaged area of paving so as to prevent injury.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

DOYLE CJ (dissent)

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by:

Gray J treats the case as governed by considerations that differ from those applicable to the occupier of a supermarket (or commercial premises to which members of the public frequently go) and to a highway authority. His conclusion is influenced by the fact that Ms Neindorf invited people to the house (for her garage sale); knew or should have known of the danger; knew that visitors might be distracted by the goods on sale; could easily have lessened or avoided the risk of injury (by warnings, by using some kind of barrier), and could have displayed her wares elsewhere, keeping people away from the hazard.Consideration of the issue I consider that the duty of care undoubtedly owed by Ms Neindorf to Ms Junkovic did not extend to taking precautions to prevent injury attributable to the unevenness in the paving. I agree with the Judge below. I am influenced by the following considerations. A purpose of the tort of negligence is to promote the taking of reasonable precautions to prevent injury to others, not to provide protection in all circumstances: Hayne J in Brodie at [315]. A duty of care should express what amounts to the taking of reasonable care in all the circumstances for one’s neighbour. The content of a duty of care must reflect, to some extent, community standards in terms of what is reasonably expected from those on whom the duty of care is imposed, and by those in whose favour it exists. To say this is not to suggest that a duty of care is imposed whenever that would be fair or reasonable: cf Sullivan at [53]. And, as I said earlier, foreseeability of the risk of injury is not always enough to lead to the conclusion that a duty of care is owed. The formulation in Brodie of the scope of the duty of care owed by a statutory authority to a pedestrian cannot simply be transposed to a case involving an occupier of private land. In Brodie and in Ghantous the fact that the defendant was a statutory authority with statutory powers to construct, maintain and repair roads and footpaths was significant in the reasoning of the Court. So is the fact that Mrs Ghantous fell while walking on the footpath adjacent to a public road. The reasons of the Justices of the High Court make it plain that the decision in that case was influenced by these matters in particular, along with other circumstances of the case. The decision in Brodie that the liability of the statutory authority in question was to be determined according to the ordinary principles of the law of negligence does not lead to a conclusion that the formulation of the duty of care in respect of a footpath is to be transposed to a case involving the duty of an occupier of private premises in respect of a pathway on private premises. Different considerations apply in each case, and a different outcome in each case would not reflect an unsatisfactory principle of law. The occupier of private premises can exercise a greater degree of control over those premises than can a statutory authority responsible for public roads and footpaths. The occupier of private premises can exclude others at will. An occupier of private premises is likely to be able more easily to identify hazards on the property and to neutralise them. There are other differences.