A woman who was awarded more than $1.5 million in damages after slipping on a driveway at an open house inspection has had her compensation upheld in an appeal court. 

Kellie Furner took legal action after suffering injuries to her neck, shoulders, an elbow, wrist, hip and knee when she fell on the steep slope in January 2020. 

It had been raining before she arrived at the Newcastle property with her husband – former rugby league player and coach David Furner – and she lost her footing when she stepped on the wet concrete. 

She was later found to have a bulging disc in her neck, which caused severe pain that endured despite a series of treatments. This had a subsequent impact on her mental health. 

In August last year, NSW Supreme Court ruled in Ms Furner’s favour, awarding damages against the owners of the home and the estate agency that ran the open house. 

Now the NSW Court of Appeal has backed that decision, rejecting the three appellants’ argument that the original judge made key errors. 

The appeal court says Allen Jackson, Linda Kondouras and CK1 Realty each “had a duty to exercise reasonable care to take reasonable measures to avoid foreseeable risks of injury, and were obliged to, at least, put up a warning sign and/or block off the slippery driveway”. 

The original judgment found Mr Jackson had painted the driveway a week before the inspection, but non-slip paint was not used. 

In their appeal, the homeowners and estate agency argued the original judge erred “in failing to find that the paint used by the first appellant [Mr Jackson ] to repaint the driveway was non-slip when that was the unchallenged evidence of the second appellant [Ms Kondouras]”. 

They said the first judge was wrong to reject Ms Kondouras’ evidence as “unconvincing and contradictory”. 

However, the appeal court’s Justice Anthony Payne says the original judge “was correct to find that the evidence of the second appellant was unreliable. If anything, that finding significantly understated the problems with that evidence.” 

He notes Ms Kondouras gave an initial statement saying that every two years her husband “resurfaced the driveway with what was recommended by the original driveway experts. This application was an ‘anti-slip’ charcoal paint.” 

She later corrected this and stated: “My recollection was that it was not every two years but very often my husband would gurney the driveway frequently with a high-pressure hose, sometimes every few months.” 

She said she could recall him painting the driveway with charcoal paint at some point during their time at the house. 

Mr Jackson was deemed to be cognitively impaired and unable to give evidence. 

Justice Payne’s judgment says Denis Cauduro, a safety expert called by Ms Furner, “gave clear evidence that the paint used led to a highly slippery surface. Mr Cauduro was not cross-examined by the appellants ... In the absence of any cross-examination of Mr Cauduro, the primary judge was correct to find that a ‘non-slip’ paint had not been applied to the driveway by the first appellant when painting the driveway in the week before the respondent fell.” 

He says the first judge was correct in finding the accident was foreseeable and a “reasonable person in the position of each of the appellants ought to have known that the driveway was sloping and became very slippery when wet”. 

The appellants have now been ordered to pay Ms Furner’s costs. 

Click here to read the ruling.

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