By Maria Civisic, Associate and Nieva Connell, Partner

The extent of a landlord’s duty of care was recently put to the test in a lengthy jury trial in the County Court of Victoria in which Mills Oakley acted for the landlord. Over 14 days, a jury was asked to consider the degree of care which must be exercised by a landlord to a tenant, in circumstances where the Plaintiff (the tenant) was injured after tripping on her own extension cord that she had placed on the floor of her rental premises. The Plaintiff claimed it was necessary to use the extension cord to connect a portable heater to the electricity supply, as the rental premises were not warm enough for her comfort. The landlord had provided the portable heater to the Plaintiff during a period when a gas heater was not operational at the premises. (The gas heater had since been repaired.)

The jury was asked to consider two questions in relation to the landlord:

1. had he breached the tenancy agreement obligation to maintain the premises in ‘good repair’?
2. was he negligent towards the Plaintiff, which was a cause of her alleged injury, loss and damage for failure to take appropriate steps to eliminate or reduce the danger of the ‘tripping hazard’ formed by the extension cord?

The jury unanimously found in favour of the landlord (and the real estate agent, who was also sued).

Background

A claim for damages was brought by the Plaintiff against the landlord and managing agent of rental premises, in respect of injuries she alleged to have sustained after she tripped on her own extension cord which she was using to operate a portable heater in the home office. The landlord had provided the portable heater to the Plaintiff several months prior to the incident, at a time when a gas heater in the lounge of the home was not operational. The gas heater in the lounge had subsequently been repaired, however, the landlord permitted the Plaintiff to retain the portable heater. The Plaintiff argued that in addition to the gas heater in the lounge being repaired, the landlord had a duty to reconnect a disconnected wall furnace heater in the living area of the rental premises. That area had a reverse cycle split air conditioning system, but no gas heating. The Plaintiff argued that the split system provided inadequate heating to the whole of the home, which necessitated the use of the portable heater. The Plaintiff further argued that there were insufficient power points in the home office to operate the portable heater (there were 6 power points), which necessitated the use of an extension cord to connect the heater to a power point in a nearby room.

The Plaintiff alleged negligence and multiple breaches of the Residential Tenancy Agreement by the landlord, consisting of a failure to provide a property that was reasonable fit for use with ‘adequate thermal comfort’ for the Plaintiff, and a failure to maintain the property in such a way as to avoid the ‘foreseeable risk’ of injury. Evidence was led as to, among other things, the heating sources within the home, and the adequacy of the number of power points which could be used to power the portable heater in question. The Plaintiff attempted to lead expert evidence from Dr Andrew Short as to many issues, most of which were ruled by the Judge to be outside Dr Short’s expertise. Ultimately, only a few short paragraphs of Dr Short’s two expert reports were determined to be within his expertise.

Insight into a landlord’s duties to a tenant

In determining the extent of a landlord’s duty to a tenant various issues were ventilated throughout the trial, but this case serves a useful reminder of the following:

1. Whilst a landlord owes a duty to take reasonable care to avoid a foreseeable risk of injury to a tenant informed by Part IIA, Wrongs Act 1958 (Vic), when considering the scope of the duty owed, landlords are generally entitled to assume that entrants to the premises – here, the tenant with exclusive possession – will take reasonable care for their own safety.
2. On the question of whether the landlord breached the Tenancy Agreement by failing to make sure that premises were ‘maintained in good repair’, as was said by Davy AsJ in Shields v Deliopoulos [2016] VSC 500 [38], “…’good repair’ means ‘tenantable repair’, or ‘reasonably fit and suitable for occupation’.” In other words, the premises “need not be put into perfect repair … it need only to be put into such a state of repair as renders it reasonably fit for the occupation of a reasonably-minded tenant” (Proudfoot v Hart (1890) 25 QBD 42 [52-53], approved by Judge O’Neill in Potter v Yeung [2019] VCC 10 [186]).

What does this mean for future landlord vs tenant cases?

The following are important takeaways from this verdict:

1. The duty owed by a landlord to a tenant is not one that requires the landlord to take steps to safeguard entirely against injury. All that is required is for reasonable care to be exercised.
2. A landlord can reasonably assume that tenants will take reasonable care for their own safety.
3. There is no duty on a landlord to instil a standard of perfection to a home, rather the duty is to provide a home in “good repair” which is fit and suitable for occupation by the reasonably-minded tenant.