Renting out an investment property and concerned about your
liability for personal injury? This recent decision may provide you
with some comfort.
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
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
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:
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
The duty owed by a landlord is no more than the taking of
reasonable steps to discover and deal with risks of injury.
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.
There is no obligation to replace items that, although not
defective, involve a foreseeable risk of injury simply because
safer items are available.
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.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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