Appeal court upholds $1.5m damages award

By Resolve Editor Kate Tilley

An appeal court has upheld a decision a woman injured at an open house is entitled to more than $1.5 million in damages.

Kellie Furner took action against husband-and-wife property owners Alan James John Jackson and Linda Kondouras, and CK1 Realty Pty Ltd, after she slipped on a driveway at the couple’s home during an open house on 18 January 2020 and was seriously injured.

Ms Furner, the wife of David Furner, a former rugby league coach and player, argued the property owners had painted the sloping driveway at the front of the property, which made it dangerously slippery.

She suffered injuries to her neck, shoulders, right elbow, right wrist, right hip, right knee and shock. She was later diagnosed with psychiatric illnesses because of the fall.

Dream job lost

The initial trial in the NSW Supreme Court heard Ms Furner had a full-time job as community relationships coordinator with the Newcastle Knights rugby league team, where her husband was coaching, from October 2019 until September 2020, when she resigned due to the injuries she had sustained.

She said it was her “dream job”, as it allowed her to work in the community, assisting disadvantaged people, and she would have continued until at least the age of 70.

Associate Justice Joanne Harrison, in the initial trial said, despite Ms Furner’s “reluctance or stout refusal to answer certain questions”, that was insufficient to “militate across all aspects of her medical case and impact her credibility”. Ms Furner had already had two surgeries at the time and was trying to mitigate her pain.

She said Ms Kondouras’s evidence contained inconsistencies, the greatest of which was that her husband had never repainted the driveway at the Garden Suburb home, near Lake Macquarie, only ever gurneyed or brushed it.

Ms Kondouras could not recall that her husband had repainted the driveway a week before the accident and could give no reliable evidence about the product he used.

Evidence contradictory

The judge found Ms Kondouras’s evidence to be “unconvincing and contradictory”. Mr Jackson did not give evidence because his psychologist said he was “cognitively impaired” and unable to do so.

Denis Cauduro, a safety management, ergonomics and building consultant, provided an expert liability report dated 15 February 2021 on Ms Furner’s behalf.

He was not cross-examined. His report said the incident could have occurred because of an inadequate level of slip resistance being available in wet conditions on the driveway surface. The owners had failed to conduct a risk assessment of the wet floor area before allowing people to walk on it.

Mr Cauduro’s opinion was that it should have been foreseeable that eventually a person walking on the very steep driveway, when it had been contaminated with water or other potential lubricants, would experience a slip, loss of balance, fall and injury, unless preventative measures were effectively implemented.

He also noted that the painted concrete surface and the driveway’s steep measurements meant the driveway failed the Australian Standards when wet.

Agent also slipped

The owners did not provide safe access and egress to the property and should have known the steep driveway was a hazard when wet.

Brittany Johnson, who ran the open house for CK1 Realty, was not called to give evidence to contradict the Furners’ assertion she had told them she had slipped on the wet driveway and told Ms Furner it was “very slippery”.

The court heard Ms Furner had surgery for a prolapsed disc, suffered continuous and extreme pain, and was being treated for depression.

AJ Harrison awarded Ms Furner $1,509,512 in damages.

On appeal, Justice Anthony Payne, with whom Justice Anna Mitchelmore and Acting Judge John Griffiths agreed, rejected all the appellants’ submissions.

Justice Payne agreed Ms Kondouras’s evidence was unreliable, particularly as her evidence about the type of paint used contradicted her assertion the driveway had never been painted.

Clear evidence

There was clear evidence the driveway was slippery and no error in AJ Harrison’s finding a non-slip paint had not been used. 

Ms Kondouras’s denial the driveway was ever painted meant her evidence the paint used was “anti-slip”, as recommended by “professionals”, was “in truth no evidence at all”.

Justice Payne said the owners were occupiers and obliged to take reasonable care to avoid foreseeable risks of injury. A cursory examination on the day would have revealed that the driveway was very slippery.

“There was no ground of appeal alleging that a reasonable person in [Ms Furner’s] position would not have walked up the driveway, nor was the primary judge asked to make such a finding,” he said.

The owners and the real estate company had argued there was no evidence the agent was aware of the driveway’s potential slipperiness. However, there was evidence of text messages between Mr Johnson and the agent to show he had advised them about painting the driveway and that it was slippery when wet.

No anti-slip paint used

Justice Payne said the primary judge had noted the gravamen of Ms Kondouras ’s first statement, that “anti-slip” paint was used, was “corrected” in her second statement and the suggestion “anti-slip paint” was used was withdrawn.

“The assertion that a charcoal-coloured paint had been used to paint the driveway at some unidentified time in the past and that the paint used [then] had been recommended by unidentified “professionals” was of little, if any, assistance in a case where [the property owners] admitted the driveway had been painted one week before the incident,” Justice Payne said.

“Mr Cauduro gave clear evidence that the paint used led to a highly slippery surface.

“Mr Cauduro also opined that if the surface had met the standards of slip resistance that he identified, it is unlikely [Ms Furner] would have slipped and fallen on the driveway in the way … that she did.”

 In the absence of any cross-examination of Mr Cauduro, AJ Harrison was correct to find a “non-slip” paint had not been applied to the driveway in the week before Ms Furner fell.

Had the appellants wished to suggest Mr Cauduro’s conclusions were unreliable, they should have cross-examined him at trial, Justice Payne said.

The appeal was dismissed with costs ordered against the appellants.

Jackson v Furner [2024] NSWCA 66 (27 March 2024) 
Furner v Jackson [2023] NSWSC 914  (3 August 2023)