Luke Conroy v Young

[2001] QCA 329

[2001] QCA 329

COURT OF APPEAL

DAVIES JA
THOMAS JA
BYRNE J

Appeal No 5586 of 2001

LUKE CONROY (an infant by his next
friend Pauline Beadle)               Plaintiff/Respondent

and

WAYNE D YOUNG  Defendant/Applicant

BRISBANE

..DATE 13/08/2001

JUDGMENT

DAVIES JA:  This is an application for leave to appeal from a judgment in the District Court given on 25 May this year for $46,133.12 in favour of the respondent against the applicant.  The judgment was one for damages for personal injuries caused by the negligence of the applicant.

The applicant was the owner of premises which he let pursuant to a residential tenancy to the father of the respondent.  The respondent was at the time of the accident which gave rise to this action and judgment three and a half years of age.

On the night in question he was playing in the kitchen with his 11 month old sister whilst their mother was preparing dinner.  She had a number of pots on the stove including one large one at the front in which she was boiling water.  She noticed that the respondent had managed to open the oven door, but was not unduly concerned because the oven was not on.  However apparently shortly after this, whilst still kneeling, the respondent leant on the door causing the stove to tip forward and the pot of boiling water to overturn onto him.

The general question which the applicant seeks to argue in this Court is whether his negligence caused the stove to tip forward in the way in which it did. 

The cause of this was apparently the insertion underneath the stove of a piece of wood for the purpose of bringing the level of the top of the stove up to that of the adjoining benches.  The wood was placed on the floor under the stove and some distance back from the front of the stove so that, according to the evidence which the learned trial Judge accepted, it took "just a bit of a push" to topple the stove. 

On the other hand the evidence was that the applicant did not place the wood under the stove, and did not know it was there.  Nor did he have any actual knowledge of the instability of the stove, nor was the piece of wood under it, or the fact that the stove was supported by a piece of wood, or that it was unstable observable on visual inspection.  That is, by a casual inspection of a person standing near the stove.  It would, apparently, have required the person to get down to see the wood recessed under the stove, or to have applied some weight to the front of the stove causing it to move.

No instability of the stove had previously been observed by the respondent's parents in the period of approximately six months that they had been in occupation of the house.  However their evidence was that they rarely used the stove, most of their cooking being done in a microwave oven. 

There does not seem to be any doubt that the piece of wood under the stove rendered it unstable and potentially dangerous.  Moreover, there does not seem to be any doubt that it could have been cured, and it was cured shortly after this accident, by affixing the stove to the wall and, in order to bring it up to the level for the adjoining benches, placing it on a level platform which covered the whole of the base of the stove.

The specific question which Mr Dickson for the applicant seeks to agitate in this Court is whether the exercise of reasonable care on inspection would have discovered the problem.

Here the defendant in his evidence conceded, so it appears from a transcript which was referred to us by Mr Williams QC for the respondent, that on an inspection he would have noticed that the base was recessed in the way it was, even though he did in fact not see it on an inspection which he made with the previous tenant, perhaps for a more limited purpose.

Perhaps he did not realise it was dangerous.  And so the question really comes down to whether a reasonable person would have observed that there was a risk of personal injury resulting from that situation.

That is a question on which, no doubt, minds might differ, but it was a matter on which the learned trial Judge had substantial evidence, and upon which he came to a conclusion of fact which it does not seem to me was unreasonable.

Those being the circumstances of this case, and it being simply a case of his Honour's correctness on that question of fact, I do not think this is an appropriate case on which the Court should grant leave to appeal.  And I would refuse the application.

THOMAS JA:  I agree.

BYRNE J:  I agree.

DAVIES JA:  The application is refused.

MR WILLIAMS:  With costs, your Honour.

DAVIES JA:  You can't say anything about that, Mr Dickson

MR DICKSON:  No.

DAVIES JA:  With costs.

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