A win for the landlord – no liability for injury caused by defective premises

Renting out an investment property and concerned about your liability for personal injury? This recent decision may provide you with some comfort.

Background

In Sheehy v Hobbs, Ms Sheehy was rendered a partial paraplegic as a result of falling down a set of internal stairs at a residential unit she was renting. The premises were subject to a standard REIQ tenancy agreement. The Court found that, in all probability, the fall occurred as a result of the stairs not fully meeting the requirements of the Building Code of Australia (BCA) and relevant Australian standards.

Several defects were identified, including that:

• the steps treads were slightly too narrow
• the nosing on each step tread was rounded and provided a poor visual cue to a user of the stairs
• the overhead lighting was too dim.

Further, the Court found that the stairs could have been made safer by installing a handrail, non-skid nosing and better lighting, all at small expense to the landlord. Having regard to the above, Ms Sheehy was probably optimistic of a favourable outcome.

Issue for determination

Was the landlord obliged to make alterations to the stairway to reduce the risk of injury to the users of the stairs? Relevantly, there was no evidence that any previous tenant had identified any problems with the stairs.

The Court’s decision

Ms Sheehy’s case against the landlord failed.

His Honour Justice McMeekin found that the landlord did not have knowledge of the defects nor could the landlord have reasonably been expected to identify the defects. In practical terms, identification would have required the landlord to have knowledge of the BCA requirements and to measure each step tread and compare it with the requirements. Alternatively, the landlord would have needed to retain an expert to carry out such testing, possibly at substantial cost. In either case, this would have involved taking steps beyond those that the law requires.

His Honour’s decision is not ground-breaking. However, it provides a good summary of the principles that the courts apply to these frequent claims:

1. There is no duty on a landlord of residential premises to ensure that those premises are as safe for residential use as reasonable care and skill on the part of anyone could make them.
2. The duty owed by a landlord is no more than the taking of reasonable steps to discover and deal with risks of injury.
3. For liability to attach to a landlord, it is necessary to show that the premises are defective and that the landlord knew or ought to have known of that defect.
4. There is no obligation to replace items that, although not defective, involve a foreseeable risk of injury simply because safer items are available.
5. Generally, a landlord will not need to retain an expert to report on potential defects in a residential property, without specific knowledge of such defects. His Honour noted that to engage experts to examine every feature of a dwelling that might cause injury would very likely involve substantial and, to many landlords, prohibitive, expense. His Honour observed however (as has the High Court previously), that governments may impose higher standards including specific obligations with respect to electrical wiring and gas connections. As many landlords would know, there is a requirement to regularly check smoke detectors.

Landlords might also take some comfort in his Honour’s observation that there have been very few cases where the courts have found liability on the part of the landlord (particularly in cases involving falls on stairs). In cases where claimants have succeeded, the landlord invariably had actual or constructive notice of the risk that resulted in injury. Landlords would be unwise to ignore specific defects brought to their attention during the course of a tenancy.

Given the potential quantum of damages in this claim, we may well see an appeal of this decision.

If you would like further information on any of these issues, please contact Brady Cockburn from our insurance team on +61 7 3231 2444.