No negligence in tragic accident

The District Court has recently dismissed a claim arising from serious injuries sustained in a fall from a roof, finding that the occupier had no duty of care to warn of an obvious risk of harm.

Keven Gors attended at a house with his brother to remove a hot water system unit from the roof. The intention was to transfer the hot water system to a house in which he was living. Mr Gors and the defendants were neighbouring farmers.

The main roof of the house, on which the unit was attached, was tiled; however, the patio roof was constructed of laserlite panels. Mr Gors and his brother climbed onto the roof and Mr Gors detached the unit. Together they lifted and manoeuvred the unit, until it was approximately one metre from the gutter, where it met the patio roof. They both stood up and, without looking behind him, Mr Gors took one or two steps back, falling through the patio roof to the patio below.

Mr Gors alleged it was foreseeable that, in carrying out works on the roof, he may walk on or place his weight on the patio roof and the risk was not insignificant, such that a reasonable occupier would have warned him of the risk. Mr Gors also contended that the laserlite panels were a danger for the purposes of the Occupiers’ Liability Act 1985. Further, Mr Gors argued that, if the risk was obvious, the defendants needed to establish that he consented to that risk.

The occupiers’ case was essentially that Mr Gors’ fall was an unanticipated accident and a warning would not have altered the outcome. Mr Gors had visited the house on a number of prior occasions, the task did not require him to step on the patio roof, the system of work was outside the control of the occupiers and, as the occupiers were not present at the time of the accident, the conduct of Mr Gors and the fall was not foreseeable.

At trial, it was conceded that the scope of the duty of care to Mr Gors was limited to warning him of the risk and his case turned on that issue. Counsel for Mr Gors also conceded that his claim would fail, if it were found there was no duty to warn.

His Honour Judge Scott held that the translucent laserlite panel roof was an obvious risk and noted that, even if a reasonable person did not know the composition of the roof, that person would not conclude that it was safe to step or walk on.

As to the duty to warn, it was held that the risk of harm was not a foreseeable risk of which the defendants were required to warn Mr Gors. From the occupiers’ perspective, it was not reasonably foreseeable that Mr Gors would step onto the patio roof at any time during the removal of the unit.

As to causation, his Honour Judge Scott found that the incident was a tragic accident and he could not be satisfied that, on the balance of probabilities, a warning that the patio roof would not bear his weight would have prevented him from stepping back without looking and falling. Given the short proximity between moving the unit and Mr Gors falling, there was simply no evidence that a warning would have had an impact.

This judgment reiterates that an objective test applies in determining whether a risk is obvious – section 5F, Civil Liability Act 2002 (WA). That is, the plaintiff’s state of mind is not determinative, but rather, what a reasonable person in his position would regard as obvious. In this case, notwithstanding the severity of the claimant’s injuries, his Honour nonetheless adopted a clinical objective assessment of the risks involved.

This case is being appealed.

Keven Gors by his plenary administrator of Janet Christine Gors v Tomlinson [2019] WADC 88


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