Occupier’s liability –
Aged visitors and uneven access ways are a recipe for injury
Aged persons are often unsteady on their feet. As
visitors to a property, they are susceptible to falls if the
access ways are uneven or have unexpected dips.
Scott v Wanklyn  VSC 382, the Supreme Court of
Victoria (Keogh J) found in favour of 90 year old Mr Scott,
who suffered a subcapital fracture of the left femur (his
thighbone) when he lost his footing and fell at the door to
Mr Wanklyn’s shed.
How was the injury caused?
Mr Scott was a retired dairy farmer who lived at home
with his wife in Swan Hill, Victoria.
Mr Wanklyn had a shed on his property 8 kms away at
Tyntynder which he used as a workshop. He had a sign at the
front of his property advertising cabinetmaking services.
Mr Wanklyn had dug a trench about eight or nine inches
wide and about six inches deep along the edge of the
concrete slab floor of the shed where the sliding door was.
He did so to drop the sliding door into the trench to allow
him to unbolt and repair the rollers.
On Christmas Eve 2014, at around noon, Mr Scott was
driven to Mr Wanklyn’s property to collect a wooden chair,
which he had left with Mr Wanklyn for repair some time
previously because it was ‘all wonky’ and coming apart.
Mr Scott did not telephone beforehand to say he was
planning to visit. Mr Wanklyn was away buying petrol at the
As Mr Scott was walking across the gravel driveway area
towards the shed, he came to the sliding door at the front
of the shed, which was open. Intending to step into the
shed, he placed his left foot down before the slab believing
it to be solid ground. Although he was watching where he was
going, he found that he had stepped into the trench. He lost
his balance, fell backwards and suffered injury.
Breach of the duty of care – the law
The occupier’s duty of care is found in s 14B (3) & (4)
of the Wrongs Act 1958 (Vic) which codifies the
common law. The court formulated the duty as being:
to take such care as in all the circumstances was
reasonable to see that the plaintiff would not be
injured by reason of the state of the premises, or of
things done or omitted to be done in relation to the
state of the premises.
The court identified the risk of harm for the purposes of
s 48 of the Wrongs Act 1958 (Vic) as:
The risk of harm is … the risk that an entrant
onto the property would step into, or lose their footing
in a trench located across the doorway of the shed
immediately next to the slab which was the floor of the
shed, fall and suffer injury.
After citing High Court authority that there are no
risk-free dwelling houses, the court considered the
three issues posited by s 48(1) of the Wrongs Act
1958, to find if there was a breach of the duty of care
whether the postulated risk was foreseeable,
whether it was not insignificant, and whether in the
circumstances a reasonable person in the defendant’s
position would have taken the precautions postulated by
the injured plaintiff.
Breach of the duty of care – the analysis
The court undertook this analysis:
- The nature and use of the property was as a
residence, with a commercial aspect being the part-time
cabinetmaking business carried on in the shed. It was
foreseeable that customers might come to the property in
response to the sign, to check on progress and to
collect completed work. The frequency that customers
attended was not great, which weighed against Mr Scott
- The nature of the danger posed by the trench weighed
in favour of Mr Scott. While the height differential
between the gravel drive and the concrete floor (a small
step up) might be expected, a trench positioned directly
and immediately across the entry doors to the shed was
not. Although the frequency of visitors could be
expected to be relatively low, it was easily foreseeable
that any one visitor could suffer a musculoskeletal
injury if they were not warned of the existence of the
- The age of the plaintiff was taken into account. Mr
Scott was reasonably mobile, used a walking stick from
time to time, and his daughter had a reasonable concern
in relation to the risk of falling. This weighed in
favour of Mr Scott.
- It was easy for the defendant to take precautions
against the risk of harm by erecting a temporary barrier
restricting access through the shed door (such as by
closing it) or by warning of the existence of the trench
(by a sign). This weighed in favour of Mr Scott.
The court concluded that there was a breach of the duty
of care by leaving the trench unguarded and without warning
as to its existence.
The court rejected the submission of contributory
negligence for these reasons:
- the trench was not patently visible: it could have
been in shadow; it was not clearly defined in terms of
colour or with a sharp edge; it was unexpected; and it
could have had leaves or other organic material in it
which disguised its existence.
- Mr Scott was taking reasonable care in watching
where he was stepping.
The injury, loss and damage
The court awarded Mr Scott $230,000, made up as follows:
- General damages of $110,000 for: the serious surgery
and extended period of hospitalisation; restricted
mobility; use of analgesics twice daily for continuing
pain and discomfort; and the considerable reduction in
the enjoyment of his life by not being able to return to
playing bowls or maintaining his vegetable garden.
- Past and future medical expenses of $15,000.
- Gratuitous attendant care services, past and future,
of $105,000 for: the time spent by Mr Scott’s daughter
to care for her father, consisting of making meals and
changing beds – of 6 hours per day for the first 6
months and 1 ½ hours per day afterwards for 213 weeks
(at $30 per hour, less 15%).
An occupier’s duty of care to aged visitors means that
they must take precautions to ensure that paths and access
ways are safe – they must be even and have no unexpected
dips. If they do, a barrier should be installed and a sign
Scott’s case demonstrates that even 90 year olds can be
awarded large amounts for personal injury claims arising
from occupier’s liability.
And the decision provides another reason why public
liability insurance is so important for property owners and
occupiers. Without it, Mr Wanklyn may have been forced to
sell his property and may have been bankrupted.