Insurance in MOtion – Mills Oakley in successful public liability defence

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A decision of the District Court of Queensland on 29 June 2018 has reinforced the principle that a landlord’s duty of care (in this case to the tenant) is only to take reasonable care to ensure that at the start of a tenancy the premises are fit for the tenant to live in and/or in good repair. It does not mean they are to have experts inspect the property for problems (unless they are on notice of a specific need) or make the property safer if it is already reasonably safe.

The claim arose from a fall suffered by Ms Hong, the tenant of residential premises owned by Peter Hutton and Claire Brophy. The front door of the house led onto a patio and to concrete steps which descended to a grassed area which had to be traversed to reach the driveway. Mr Hutton, like most people, had no qualifications in building or construction, and no familiarity with the area of ergonomics or the Building Code of Australia or any associated Australian Standards. He personally laid 2 stepping stones in the grassed area. Mr Hutton and Ms Brophy lived in the premises for about 5 years without experiencing any difficulty with the stepping stones.

In January 2009 they started renting the premises out, and in January 2010 Ms Hong moved into the premises. On 5 April 2010, 3 months after she had moved in, Ms Hong slipped and fell as she tried to negotiate the front stairs and then the stepping stones in heavy rain.

The stepping stones were level with the surface of the grass, and testing indicated that the stones did have sufficient slip resistance in wet and dry conditions. Ms Hong called expert evidence to the effect that the first stone was placed an awkward distance for her to step onto being too far from the bottom of the stairs and not at the same level as the bottom step, and that the second stone was placed at an awkward angle, therefore increasing the risk of slipping. She argued therefore that the landlord should have installed a proper and adequate concrete path, and/or a number of concrete pavers which would have had the effect of avoiding, or minimising, the risk of any fall whilst negotiating the stepping stones, particularly in the wet.

His Honour accepted that there were a number of possible ways to make changes to (and possibly improve or make safer) the pathway, but held, following the decisions in Sheehy v Hobbs (2012) QSC 333 and Jones v Bartlett (2000) 205 CLR 166, that that was not the applicable test, and that all that was required of the landlords was to take reasonable steps to ascertain and satisfy themselves that at the start of the tenancy the premises were fit for the tenant to live in and/or in good repair in wet conditions.

His Honour considered and accepted evidence that there had been no prior incident involving the stepping stones despite the stepping stones being used on a regular basis for several years, and that neither Mr Hutton nor Ms Brophy had any reason to consider the stepping stones as unsafe, or had any actual or constructive notice of a risk of injury to the plaintiff. He also accepted that Ms Hong herself had made no complaint about any prior difficulty with the stepping stones or about the stepping stones being unsafe. He found that immediately prior to the commencement of Ms Hong’s tenancy Ms Brophy and a handyman had cleaned up the premises, including cleaning the stepping stones with a high-pressure hose, and carried out an inspection of the premises. He accordingly found that the landlords had taken reasonable care to ascertain and satisfy themselves that at the start of the tenancy the premises were fit for the tenant to live in and/or in good repair, and that there was no reason, or necessity, for the landlords to take any further measures towards the premises. He dismissed the plaintiff’s claim and gave judgement for the landlords.

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