Judgment date: 22 April 2010
Vasilikopoulos v New South Wales Land and Housing Corporation  NSWCA 91
New South Wales Court of Appeal1
A landlord does not owe a duty of care merely because previously suitable premises have become unsuitable by reason of the deteriorating physical condition of an occupant.
On 9 December 2007, Betty Vasilikopoulos (plaintiff), stepped out of the bathtub in her unit and fell to the floor causing her to fracture her left fibula above the left ankle joint. The unit was occupied under a tenancy agreement made on 10 September 1987 between the defendant, the New South Wales Land and Housing Corporation as the landlord, and the plaintiff's husband. There was no suggestion the premises were not suitable for habitation at the time they were let.
On 12 September 2006 the plaintiff had a right knee replacement and on 12 June 2007 she had a left knee replacement. As a result of each surgery the plaintiff had difficulties accessing and egressing the shower in her unit, the shower being located above the bathtub. On 18 September 2006 the plaintiff's daughter notified the defendant that a grab handrail was required in the bathroom. The defendant treated the matter as a "fault" and gave the matter a "Priority 1" for remedial action. In late September 2007 the plaintiff fell onto her knees whilst getting out of the bathtub because the height of the bathtub was too high to comfortably negotiate safe egress. The plaintiff's general practitioner wrote to the defendant on 28 September 2007 requesting the shower "be fixed at the earliest to prevent her having another fall and injuring her knees." On 5 October 2007 another letter was written to the defendant requesting "immediate action especially in the bathroom and toilet area before a catastrophic accident occurred undoing whatever benefit was obtained by her operations".
Upon receipt of the correspondence dated 28 September 2007 the defendant arranged for a tradesman to attend the unit and inspect the bathroom in relation to making modifications to improve the plaintiff's safe use of the bathroom. On 12 November 2007 an occupational therapist employed by the Sydney South-West Area Health Service wrote to the defendant following a visit to the plaintiff's residence, in the presence of a representative of the defendant, setting out the modifications required to the bathroom to improve the plaintiff's safety. The modifications were subsequently undertaken commencing on 10 January 2008 and were completed on 7 February 2008 at a total cost of $8,965.79.
District Court of New South Wales
The plaintiff sued the defendant in negligence alleging that in its capacity as an owner/landlord of the unit it breached its duty of care to provide premises which were safe for use as a home. Specifically, the plaintiff alleged that the defendant did nothing to modify the shower facilities in the bathroom to ensure they were suitable for her needs.
On 5 June 2009 Hungerford ADCJ handed down a decision in which he found the defendant did not have a duty of care to modify the shower facilities in the bathroom and even if it had a duty of care, it did not breach that duty. Hungerford ADCJ also found that if the defendant were liable he would assess the plaintiff's own contributory negligence at 10%.
At first instance the plaintiff argued the defendant had a duty of care to the plaintiff as the occupier of the premises. Specifically, she argued that although the bathtub was of a conventional type it became a defect following her operations due to its unsuitability for her. She also argued that the risk of injury associated with her use of the bathtub after her knee replacement surgery was foreseeable, and that the defendant was aware of it and failed to remedy the defect.
Hungerford ADCJ did not accept the defendant was an occupier of the unit. He found the defendant was the landlord, even perhaps the owner, of the unit but it did not occupy the premises. He further pointed out that the plaintiff was not a tenant but rather it was her husband who was a party to the landlord/tenant relationship with the defendant. The plaintiff was merely an occupant of the unit.
Hungerford ADCJ carried out a short review of the development of the law in Australia in respect of the nature and scope of the duty of care of a landlord to a tenant, or a tenant's household. The Judge started with the rejection of the rule in Cavalier v Pope as good law in Australia by the High Court in Northern Sandblasting v Harris2 . Hungerford ADCJ cited from the judgment of Gaudron J in the matter, who stated: 3
Hungerford ADCJ then noted the judgement of Gummow and Hayne JJ in Jones v Bartlett4 in which they said:
In this present case, the plaintiff did not argue that the bathroom itself was unfit for its intended purpose or unsafe for use, rather that it became unsuitable once she had undergone the two knee replacements. Hungerford ADCJ held that the premises had been let in a condition fit for it's primary use. His Honour did not accept that the bathtub became unsuitable and/or defective once the defendant knew the plaintiff had undergone the bilateral knee replacement surgeries.
Hungerford ADCJ therefore held that the defendant did not owe a relevant duty of care to the plaintiff. He further held that even if the defendant did owe the plaintiff a duty of care to modify the bathroom it did not breach its duty of care. In this regard, he held that the defendant took steps to arrange modification work to be undertaken and that the work was performed within a reasonable period of time. Furthermore, in the time between being advised of the need for the modification works and the works commencing the plaintiff had means available to her to ensure her safe access and egress from the bathtub.
Following the usual practice, Hungerford ADCJ went on to assess damages. He stated that if he were wrong on the issue of liability he would have assessed the plaintiff's damages in the sum of $56,861.90.
New South Wales Court of Appeal Decision
The plaintiff appealed the decision of the District Court on a number of grounds. The first was that his Honour erred in finding the defendant did not owe a duty of care to the plaintiff and secondly that the defendant had not breached that duty of care. The plaintiff also appealed Hungerford ADCJ's assessment of quantum.
The Court of Appeal highlighted that the factual matrix of this matter was different to the case of a person suing under a contract of tenancy or a visitor to premises slipping and falling because of a defect in common property. Young JA, who delivered the unanimous judgment of the court, warned that care must be taken when applying principles from cases that appear factually related.
The Court of Appeal noted the plaintiff had not specifically pleaded that the Department of Housing owed her an obligation because it knew that she was a tenant with particular vulnerability.
On appeal the plaintiff submitted that when the defendant became aware of the plaintiff's need for bathroom modifications it was sympathetic and indicated it would take steps to effect modifications. The plaintiff argued these actions imposed upon the defendant a duty to do what it promised and its failure to do so was negligent. In the Court of Appeal the plaintiff relied upon the decision in New South Wales Department of Housing v Hume5 where McColl JA held that a landlord is only required to take such care as is reasonable in the circumstances. Young JA stated that the difference between the Hume matter and the current matter was that in this matter there was no problem with the condition of the unit when the plaintiff's husband commenced the tenancy in 1987, it being at that time fit for its intended purpose.
The plaintiff also argued that s 5 of the Housing Act 2001 includes objects such as ensuring that public housing and community housing reflects the housing standards of the general community and is designed to cater for the ongoing needs of consumers. The Court of Appeal pointed out this section was not pleaded. The plaintiff indicated it was not alleged there was any liability in relation to breach of the Housing Act. Rather, it was one of the circumstancesto be taken in to account to determine if the defendant owed a duty and, if so, the nature and content of it.
The defendant maintained that it did not owe a relevant duty of care. It further submitted that as a government instrumentality it is involved in the administration of a considerable amount of public housing. The fact that it did not take action about a complaint for a period of six months did not necessarily establish a breach of any duty, even if there were a duty owed.
The Court of Appeal declined to overturn the trial judge's findings that the defendant did not owe the plaintiff a duty of care. Young JA stated:6
The Court of Appeal found it unnecessary to consider the plaintiff's appeal in relation to quantum given its findings in relation to liability. Young JA did however note that the damages appeared to be within the permissible range on the evidence available to the trial judge.
The High Court decision of Jones v Bartlett7 confirmed that a lessor of residential premises owes a duty of care to an incoming tenant to repair defects of which the landlord was aware or ought to have been aware at the commencement of the tenancy. The principles are further refined and clarified in this decision. The decision is authority for the proposition that the changing needs of occupants in otherwise safe residential letting do not impose a duty of care on the landlord to modify the safe premises.
It must be remembered that the outcome may have been different if the plaintiff was the tenant with whom the defendant contracted and there was a contractual promise to repair, or an undertaking to modify the bathroom at the commencement of the tenancy so as to form part of the contract. In other words the common law duty of care, if a duty is found to exist, may be varied by the terms of the lease. The matter may have also been decided differently if the plaintiff suffered a disability before she went in to occupation and the defendant knew this and let the premises when it was unsuitable due to the plaintiff's disability.
1 Young JA, Handley AJA and Sackville AJA
2 (1997) 188 CLR 313
3 (1997) 188 CLR 313 at 358
4 (2000) 205 CLR 166 at 215
5  NSWCA 69
6  NSWCA 91 at 
7 (2000) HCA 56
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