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Landlords Not Required to Ensure Premises “Absolutely Safe” NSW Department of Housing v Hume

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by Melanie Cox & Paul Angus | June 2007 Area of Expertise | General Insurance The New South Wales Court of Appeal recently held that whilst a landlord owed a duty to take reasonable care to avoid foreseeable risk of injury to an entrant, the landlord did not have to make the premises as safe as reasonable care could make them. The case squarely raises the question of just how far an occupier must go to take reasonable care to avoid a foreseeable risk of injury to an entrant.

FACTS The two-and-a-half-year-old plaintiff suffered injury on 14 August 1995 when his mother dropped him as a result of having “free fallen” from a porch on premises rented by an acquaintance and owned by the NSW Department of Housing (the “DOH”), allegedly due to the absence of either a balustrade or a handrail on either side of the porch steps. The plaintiff, who was born suffering Down’s syndrome, was being carried by his eight and a half months’ pregnant mother at the date of the accident as he could not walk. The plaintiff’s mother had suffered from a right knee dislocation problem for some years, but never knew when that might occur. As the plaintiff’s mother approached the stairs that descended to ground level from the porch of the premises, her knee dislocated and she “free fell” into the gap between the stairs and the porch, dropping the plaintiff in the process. The lessee of the premises gave evidence that she had complained to the DOH about the state of the steps, but whilst the DOH had a record of complaints made by the lessee over the years, there was no record of this particular complaint. The trial judge, however, accepted that the lessee made the complaint and there was no appeal from that finding. Although there was no applicable Australian Standard that specified that a guard rail should be erected, unchallenged expert evidence provided that “…the safety of the porch and stair…would have been significantly improved if railings had been provided along the open sides of the porch and down the side of the stair…”. Some days after the accident a railing was installed which extended up the stairs and across the landing.

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AT FIRST INSTANCE The critical issue was whether the DOH had breached its duty of care to the plaintiff by failing to install either a handrail to guard the porch or a handrail to the steps - neither of which was required under statute. The DOH’s case at trial was that there was nothing it could reasonably have done to prevent the accident because, having regard to the evidence given by the plaintiff’s mother, she would have been unable to prevent her fall by taking hold of a railing. The trial judge found that: •

The DOH had breached its duty of care to the plaintiff by failing to provide a handrail.

It was foreseeable that such an incident could occur if there were no handrails installed.

While the plaintiff’s mother’s disability had caused the fall, the DOH’s breach had caused the plaintiff’s injury, as if there had been a rail, the plaintiff’s mother would have taken hold of it and the plaintiff would not have been dropped.

While the subsequent installation of a railing was not evidence the appellant had been negligent in not installing a railing prior to the accident, it indicated the options available to the appellant to protect the occupants of the premises from the risk of injury.

The DOH sought leave to appeal from the trial judge’s findings as to breach and causation, on the basis that as the premises were leased, its duty of care was confined to one to take reasonable care that the premises contained no dangerous defects.

ON APPEAL On appeal, the DOH argued that: •

Its duty of care to the plaintiff was confined to one to take reasonable care that the premises contained no dangerous defects, being defects which “are more than dangerous; [and] … are dangerous in a way not expected by their normal use”.

Compliance with its duty of care did not require it to have a railing on the porch or stairs at the date of the accident. The porch was not defective in any sense and the plaintiff’s mother would have already dropped the plaintiff in an instinctive reaction to prevent herself falling by the time she might have been able to grasp any handrail.

The plaintiff’s mother’s pre-existing disability, not the condition of the stairs caused her fall. The finding of the trial judge that the absence of a handrail caused the accident because the plaintiff’s mother would not have dropped him had she not been concerned that she might fall was an exercise in speculation

Evidence about previous falls was imprecise as to both their cause or nature and was insufficient to ground a finding that it had been informed of the necessity to have a railing in the area of the fall.

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The majority of the Court of Appeal granted the DOH leave to appeal on the following grounds:

As to duty of care The Court referred to Justice Gaudron’s test in Jones v Bartlett2 that “the occupier of premises is only required to take such care as is reasonable in the circumstances” and “a landlord should not be subjected to a higher duty to make premises as safe for residential use as reasonable care and skill on the part of anyone can make them”. The standard of care required of a landlord, then, is “taking such care as is reasonable in the circumstances”, but a landlord does not have to make the “premises as safe as reasonable care could make them”. Thus, although the appellant owed a duty to the respondent to take reasonable care to avoid foreseeable risk of injury, it did not have to make the premises as safe as reasonable care could make them.

As to breach The trial judge erred in finding that the appellant breached its duty of care to the respondent insofar as: •

The porch and stairs were no more or less inherently dangerous than any such structures or the many other dangers in premises.

There is no doubt the porch and stairs could have been made safer but that did not mean they were dangerous or defective.

The majority of the Court of Appeal further held the evidence given at trial concerning prior incidents did not alert the DOH to any defect in the porch or stairs which attracted an obligation on its part to erect a handrail. The fact that a handrail was erected after the incident did not demonstrate the DOH was negligent.

IMPLICATIONS In its judgment, the majority of the Court of Appeal stated that all residential premises contain hazards to their occupants and to visitors and accordingly, there is no such thing as absolute safety. While most dwelling houses could be made safer, this fact does not mean a house is necessarily dangerous or defective. Safety standards imposed by legislation recognise a need to balance safety with other considerations, including cost, convenience, aesthetics and practicality. Essentially, then, safety standards and standards of care required by a landlord should reflect commonsense.

Endnotes 1

(2007) NSWCA 69

2

see Jones v Bartlett (2000) HCA 56

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For more information, please contact: Melanie Cox Lawyer T: 02 8257 5770 melanie.cox@turkslegal.com.au

Paul Angus Partner T: 02 8257 5780 paul.angus@turkslegal.com.au

Sydney | Level 29, Angel Place, 123 Pitt Street, Sydney, NSW 2000 | T: 02 8257 5700 | F: 02 9239 0922 Melbourne | Level 10 (North Tower) 459 Collins Street , Melbourne, VIC 3000 | T: 03 8600 5000 | F: 03 8600 5099

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Landlords Not Required to Ensure Premises “Absolutely Safe”  

The New South Wales Court of Appeal recently held that whilst a landlord owed a duty to take reasonable care to avoid foreseeable risk of in...

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