Australia: Case Note: Estate Of The Late JJ Virgona By Its Executors V De Lautour [2007] NSWCA 282

Last Updated: 24 October 2007

In Brief

  • The Court of Court of Appeal found that a landlord had no liability to a tenant who fell through the roof of residential premises.


  • The plaintiff was injured when she fell through a ceiling on the second floor of a house in which she was a tenant.
  • The house was large and more than 100 years old. It was shared by several tenants. The plaintiff moved in about two weeks prior to the accident after answering an advertisement for shared accommodation.
  • Access to the roof could be gained through two doors in the upstairs television room.
  • The plaintiff entered the roof area as she wanted to store a metal pipe there. She entered the roof area via one of the doors in the television room. There was evidence that there was no door knob on the door, however it was relatively easy to open the latch.
  • When the plaintiff entered the roof area she could not stand upright. Timber ceiling joists ran lengthways from the door and wall of the television room to the roof eaves with timber roof battens at right angles to the joists. The battens filled gaps between sheets of asbestos cement which formed the ceiling.
  • The plaintiff observed various items including planks of wood and boxes in the roof. She placed her foot on what she thought was a beam but was in fact a batten. The timber batten broke and the plaintiff fell through the roof, sustaining injury.
  • The plaintiff gave evidence that she thought the door in the television room gave access to a storage area because she had seen such areas commonly used for storage under the eaves in other houses.
  • She did not think there were floor boards in the roof area but thought that the timber battens would have supported her weight.
  • When asked why she simply did not reach into the area and place the metal pipe down, she did not give a cogent answer.
  • The plaintiff was asked in cross examination whether she did anything to satisfy herself that the batten was strong enough to take her weight and she replied in the negative.
  • The plaintiff also accepted that she stood on the batten because she thought the flooring material might not support her.

Decision of Trial Judge

  • Boulton ADCJ attended the premises and viewed the roof area.
  • His Honour found that the existence of full height doors to the roof led to the inference that the area behind was for storage.
  • His Honour found that the landlord had breached the duty of care owed to the plaintiff in that confined space, poor lighting and the existence of clutter made the roof space "hazardous to the average tenant".
  • The trial judge held that flooring could have been installed. The landlord could also have locked the door leading to the roof but failed to do so.

Court of Appeal Decision

  • The landlord appealed.
  • Ipp JA delivered the unanimous judgment, upholding the appeal. Ipp JA affirmed that Jones v Bartlett (2000) 205 CLR 166 is the leading authority on the duty of care owed by a landlord and observed that this decision has been followed in a number of recent NSW Court of Appeal decisions. Jones v Bartlett is authority for the proposition that a landlord's duty does not require the commissioning of experts to inspect premises to look for latent defects and nor is it a duty to make premises as safe as reasonable care can make them. A landlord's duty is determined by reference to the foreseeable risk of harm and what a reasonable person would do in response to that risk.
  • Ipp JA also found that the trial judge had failed to apply the test in Wyong Shire Council v Shirt (1980) 146 CLR 40 which required the court to consider whether the landlord's response to a risk of foreseeable harm was reasonable in the circumstances.
  • The risk of traversing a roof area with the floor comprised of ceiling material was well known and part of ordinary domestic life. The roof area was no more or less inherently dangerous than any such area of all the many other dangers on similar domestic premises. There was no doubt it could have been made safer but that did not mean that it was dangerous or defective.
  • The notion that landlords must install flooring in the roof spaces of premises let because those spaces were used by tenants for storage was contrary to what was general knowledge concerning the construction of roof areas in houses in Australia.
  • Furthermore, the trial judge’s finding of a breach of duty in the failure to lock the door leading to the roof was flawed as there was no investigation on whether this would meet safety requirements. Further, the tenants may have objected to the areas being locked.
  • His Honour cited with approval the remarks of Gleeson CJ in Jones v Bartlett as follows:
  • " There is no such thing as absolute safety. All residential premises contain hazards to their occupants and to visitors. Most dwelling houses could be safer, if safety were the only consideration. The fact that a house could be made safer does not mean that it is dangerous or defective. Safety standards imposed by legislation or regulation recognise a need to balance safety with other factors, including cost, convenience, aesthetics and practicality."
  • This was consistent with the approach taken in Ahluwalia v Robinson [2003] NSWCA 175, Sakoua v Williams (2005) 64 NSWLR 588 and NSW Department of Housing v Hume [2007] NSWCA 69. In those cases, it was correctly held that a landlord's duty did not extend beyond a requirement to address defects of which they were aware or ought to have been aware and that each defined defect in this context meant something more than a condition capable of causing injury.


  • This decision confirms the existing law that a landlord's duty to a tenant is to ensure that the premises are reasonably fit for the purposes for which they are let, namely habitation as a domestic residence: Jones v Bartlett.
  • A landlord's duty is to undertake repairs in relation to defects of which he or she was aware, or ought to have been aware, as held in Jones v Bartlett and, more recently, in NSW Department of Housing v Hume.
  • Furthermore, as recently stated by the Court of Appeal in NSW Department of Housing v Hume, the test is not whether premises are as safe as they can be. The test is whether the landlord has acted reasonably.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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