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Lawsuit sees agency pay $1.5m for open home negligence

By Orana Durney-Benson
31 May 2024 | 11 minute read
driveway being painted reb mga4wo

A Newcastle real estate agency was slammed with a seven-figure payout after failing to warn visitors about a “dangerously slippery” driveway.

On Cupania Crescent in Garden Suburb, NSW, sits an impressive three-storey “Italian mansion” with commanding views over the surrounding bushland. The house sits at the top of a steeply sloping driveway that leads up to the front steps.

In January 2020, this driveway became a subject of major contention when Kellie Furner, a visitor at the open house, slipped and fell.

The Cupania Crescent property had been listed by Cveta Kolarovski of CV1 Realty, who had been licensed by the Agency.

Furner, a community relationships coordinator with the Newcastle Knights and the wife of former rugby league player David Furner, visited the property on 18 January 2020 during an open home. An early morning shower had left the newly painted driveway “dangerously slippery”.

As an August 2023 Supreme Court hearing later found, Furner slipped and fell heavily on the wet driveway, landing painfully on her right side and suffering injuries to her neck, shoulders, right hip and knee. When her husband helped her to her feet, she slipped again.

As Furner inspected the home, assistant agent Brittany Johnson, who was acting on behalf of Kolarovski came up to check whether Furner was okay.

“I went to check the driveway out, and I slipped on it as well, it is very slippery,” Johnson said, according to Furner’s testimony.

In the days that followed, Furner’s condition continued to deteriorate. She was admitted to Lake Macquarie Private Hospital in “excruciating pain”, where an MRI found she had a bulging disk in her neck. Over the Australia Day long weekend, Furner was transferred to John Hunter Private Hospital where she “had a seizure upon her arrival”.

She gave evidence that she was “in the most pain she has ever experienced in her life”.

Years later, Furner stated she still experiences severe pain on a daily basis. As reported by the plaintiff’s counsel, Furner “had gone under the knife not once but twice and is still looking for ways to deal with her pain”.

At the August 2023 trial, home owner Linda Kondouras denied that the driveway had been painted, stating that her husband, Alan Jackson, had “never repainted the driveway, only ever gurneyed or brushed it”.

Later, Kondouras changed her evidence to state she had “a recollection of [her] husband repainting the driveway with a charcoal paint, recommended to him by professionals”.

Text messages from Jackson to the agent, Cveta Kolarovski, saw the owner state on 25 January that the “driveway is drying” and later, on 13 March, that “there is now a bad rust mark across it after trying products to remove slippery paint when wet”.

During the trial, Kolarovski denied knowledge of the driveway recently being painted.

The judge ultimately ruled that both the home owners and agency were guilty of negligence for failing to exercise reasonable care and breaching their duties of care owed to Furner.

The particulars of negligence regarding the agency included:

  • Failing to warn, or adequately warn, the plaintiff of the risk of slipping on the driveway.
  • Failing to conduct any adequate risk assessment of the slipperiness of the driveway surface particularly when wet.
  • Failing to place non-slip mats or similar non-slip control measures over the driveway prior to the sales inspection.

The court ruled that by reason of the defendants’ negligence Furner suffered injury, disability, loss and damage, and ordered them to pay her $1,509,512 in damages.

In March 2024, the defendants appealed the ruling, but the appeal was dismissed.

Writing for the Real Estate Institute of Queensland (REIQ), Emily Holzberger, associate at Carter Newell Lawyers, noted: “The decision, maintained on appeal, demonstrated that sales agents have a duty of care to take precautions against the risk of harm occurring at open home inspections.”

“Sales agents should ensure that they undertake adequate risk assessments prior to conducting an open home and take proactive steps to prevent any risk of harm from occurring. In this instance, the sales agents could have directed people away from the driveway and asked that they utilise the stairs to the front door,” Holzberger said.

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