MORE THAN SHE BARGAINED FOR
Melissa Alfredini
The High Court has found that home owners who hold garage sales at their homes do not have the same obligations to visitors as do occupiers of commercial premises.
The defendant held a garage sale at her home in suburban Adelaide. She set up trestle tables in the carport on which the items for sale were displayed. A concrete driveway ran from the carport to the adjacent road. The left side of the driveway was raised by approximately 12 mm from the rest of the concrete surface.
The plaintiff was a visitor to the sale. She tripped on the raised concrete and broke her ankle. The plaintiff admitted her attention at the time had been focussed on the items that had been displayed for sale, and not on where she was walking.
In line with recent authority, the Court found that the danger posed by the uneven concrete surface was minor, obvious and encountered "unexceptionally on suburban footpaths". In the Court’s opinion, the unevenness of the concrete surface was so ordinary and so visible that it was reasonable not to require any action on the part of the home owner.
In any event, the Court drew a distinction between selling goods at a garage sale on domestic premises and a commercial retailer selling goods. In the latter case, the occupier has a clear duty to its patrons to ensure that its premises are kept in a safe condition. Although owners who conduct garage sales are seeking to gain financially, the Court considered they are, nonetheless, essentially conducting a private enterprise on domestic premises.
The Court noted that the occupier of a domestic property might have knowledge of a hazard, but that was not the same as appreciating that the hazard posed a danger to visitors. Indeed, the Court noted that there could be any number of hazards in a domestic dwelling which might not seem hazardous to the occupant but which were, nonetheless, dangerous (for example, an oven or a broken step). The Court considered it was not reasonable to expect home owners to rectify every potential danger or hazard prior to inviting visitors onto their property: Neindorf v Junkovic. |
