Fall from Balcony – Plaintiff Fails on Cause and Negligence

The very unfortunate case of Mrs Hutch[1] who suffered paraplegia as a result of a fall from a balcony, was recently reported in the media.  The decision to dismiss the claim seems to have rested heavily on the findings of intoxication, but it is instructive to look more closely at the judge’s findings in order to appreciate all of the factors in play.

The plaintiff was certainly found to have been very intoxicated when she toppled over a balustrade at the second floor town house she was renting from the defendant.  She failed in her claim for damages after the judge found she had ‘leaned too far and tumbled over’ the balustrade because of her severe intoxication.

The plaintiff argued that after sharing a celebratory bottle of sparkling wine with her son on Christmas morning, she had occasion to search for a handbag upstairs.  While doing so, she leant over the balustrade and fell. She suffered severe head and spinal injuries resulting in paraplegia.

The plaintiff sued the defendant, claiming he had breached the duty of care owed to her as tenant of the premises as the balustrade was too low and constituted a danger. The defendant denied he was in breach, instead arguing the accident was caused by the plaintiff’s intoxication.

It was acknowledged that a landlord owes a duty of care to the lessee to take reasonable care to avoid foreseeable risks of harm, but here there was found to be no breach and the landlord was not liable.

In contrast, the plaintiff’s blood alcohol level was found to have been six times over the legal limit of 0.05. The judge found her alcohol consumption must have been much greater than she said it was.  This raised doubts about the plaintiff’s credibility, which although not crucial to the decision, were relevant to the finding as to how the fall had occurred.

The significance of the findings of intoxication was twofold.  First, it was found to be the cause of the fall, as distinct from any defect associated with the balustrade.  Second, if the plaintiff had succeeded in her claim, for example, on the basis that the balustrade was too low, the judge found that the plaintiff’s conduct had contributed to the fall to the extent of 90% and evidently limited his finding of contribution to that figure only because a 100% contribution finding is not available under the Civil Liability Act.

What the finding of intoxication does not do, however, is provide a defence to the claim of negligence based on an alleged defect of the balustrade.  This is worth noting as it then becomes apparent that the disposition of the claim, would have been possible without the finding of intoxication, simply on the basis of the judge’s finding that the balustrade was not too low and the defendant was not in breach of duty.

The plaintiff’s intoxication was obviously not to be ignored, but was not legally significant to the dismissal of the claim.  Contributory conduct and a defendant’s breach of duty, although related, each require separate consideration and separate application to the facts of a claim.

Ultimately, the disposition of the case on the basis that there was no breach of duty by the defendant was relatively straightforward.  On the other hand, had there been a finding that the balustrade was too low, the resulting legal argument over the cause of the fall would have been challenging for both sides.

For more information on this update or any other insurance matter please contact Vidal Hockless on (08) 9321 3755.

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.


[1] Hutch v Ryan [2015] WADC 16