A recent case of Foti v Biordi [2021] NSWDC 496 in the NSW District court considered whether an owner and occupier of property was negligent in failing to prevent a man from stepping into a hole adjacent to his rented premises. 

The court held that the description of the events by the plaintiff was ‘wholly implausible’ and that any injury to the plaintiff was his own fault and not a negligent act or omission by the property owner. This was primarily because the plaintiff’s version of events of the night had changed on at least four occasions and the inconsistencies undermined his credibility. The court was satisfied that the plaintiff’s injury was actually caused by rolling his ankle upon getting out of his car after parking at the premise – which is what he told hospital staff. Nevertheless, the court said that even if that were not true and the plaintiff’s version of events was correct, the risk to the plaintiff of falling was so low as to be ‘fanciful.’ A reasonable person in the position of the plaintiff would use lighting available to him from his car’s headlights or another readily available source of light in order to enter a premises safely. 

This case serves as a reassurance to property owners that whilst they should take reasonable care to prevent a foreseeable risk of harm on their property, they will not be responsible for preventing risks of such low probability as would be unreasonable in the circumstances. 

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