Recent Appellate Decision Means The Ceiling Doesn’t Fall In On Landlords By Melanie Cox | November 2007 Area of Expertise | General Insurance
Summary A decision against a landlord who had been found liable when a woman fell through the ceiling of the premises she tenanted was recently overturned on appeal. In reversing the decision the NSW Court of Appeal concluded that the condition of the roof area did not render the premises unfit for the residential purpose for which they were let and, as a result, the landlord was not in breach of the duty of care.
Who Does This Impact? Public liability insurers, residential property owners and real-estate agents.
What Action Should Be Taken? This appellate decision reinforces what appears to be an emerging trend in the recent case law restricting liability in relation to the condition of residential premises. The decision confirms that the mere fact that a house could be made safer does not render it hazardous or defective and that tenants will be held responsible for their own actions. The conclusion that an unlocked door does not constitute an invitation to a tenant is also particularly helpful in further clarifying the liability of landlords.
Estate of the Late J J Virgona by its Executors v De Lautour 1 The Facts On 28 December 1997, the respondent was injured when she fell through a ceiling on the second floor of a house of which she, together with others, was a tenant. The respondent herself had not entered into a written lease of the premises and the arrangements under which she became a tenant were of an informal nature. The respondent had gone into an area of roof space accessed by full height doors to store a metal pipe. When she entered the roof area, she observed a wooden beam, capable of supporting her weight, running straight ahead of her across the floor. There was insufficient space for her to stand, so she squatted, balanced her right leg on the beam and put her left foot on what she thought was another beam: “coming across at right angles”. This, however, turned out to be a non-weight bearing batten, which joined two sheets of asbestos cement ceiling material. The respondent’s foot went through the batten and she fell through the ceiling to the bedroom below sustaining injuries. The respondent brought proceedings for damages for negligence against the appellant, as landlord of the premises.
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Recent Appellate Decision Means The Ceiling Doesn’t Fall In On Landlords by Melanie Cox
At First Instance The trial judge found that the existence of full height doors led to the inference that the areas behind the doors were storage areas, not a roof area, though he did not find that the appearance of the floor surface, constituted by the asbestos sheets and the battens, constituted a trap of which the landlord should have been aware. The trial judge held that: •
The appellant had breached the duty of care owed to the respondent.
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Various factors made the roof space: “hazardous to the average tenant”.
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There were simple remedies available: flooring could have been installed, or the door to the roof area could have easily been locked against general use.
On Appeal Counsel for the appellant submitted that the trial judge erred in characterising the roof area where the respondent fell as “hazardous to the average tenant”. In the alternative, Counsel for the respondent submitted that the appearance of the battens and the general condition of the roof area constituted a trap that misled the respondent into standing on the batten. The appeal was upheld, the Court of Appeal finding that:
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No one told the respondent that the roof area where she fell was a storage area – she simply assumed this to be the case. Although another tenant gave the respondent permission to use the “storage areas” upstairs, he was not an agent of the appellant and, in any event, he did not purport to authorise the respondent to use the area in which she fell.
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The full height doors were there simply to allow access to the roof areas, in the same way as manhole covers or trapdoors are ordinarily used for this purpose. Thus while the door to the roof area made access easier, the respondent well knew, before going on to the joist, that she was entering a roof area.
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There was no basis for the allegation that the door to the roof area “invited” access. There was a latch on the door, but the fact that the latch could easily be opened was irrelevant and could not be said to constitute an invitation to open the door.
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Once it is accepted that the battens were not misleading, there was nothing unusual about the make-up of the roof area. Thus it could not be said that its condition rendered the premises unfit for the purposes for which they were let, namely, habitation as a domestic residence.
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The risk of traversing a roof area with a floor comprised of ceiling material is well known and part of ordinary domestic life.
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Although the trial judge suggested that flooring could have been installed, there was no analysis carried out in accordance with the test in Wyong Shire Council v Shirt 2and there was no evidence as to the cost of installing such flooring. Moreover, the notion that landlords must install flooring in the roof spaces of premises let because those spaces are used by tenants for storage is contrary to
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Recent Appellate Decision Means The Ceiling Doesn’t Fall In On Landlords by Melanie Cox
what is general knowledge concerning the construction of roof areas in houses in Australia. •
Although the trial judge suggested that the door “could have easily been locked against general use”, that would have been a most unusual practice, and there was no investigation as to whether locking the door would comply with safety requirements.
Implications In its judgment, the Court of Appeal observed that all residential premises contain potential hazards to their occupants and accordingly, there is no such thing as absolute safety. The Court reiterated the position set out in New South Wales Department of Housing v Hume by his next best friend Donna Hume & Anor 3 that the mere fact that a house could be made safer does not render it hazardous or defective. The decision consequently confirms the trend emerging in the recent case law restricting liability in relation to residential premises and indicates that in the absence of clear representations by the landlord a tenant will be held responsible for their own actions in entering a part of the premises that is clearly not part of the habitable space. The conclusion that an unlocked door does not constitute an invitation to a tenant is particularly helpful in clarifying the liability of landlords and their insurers.
Endnotes 1
[2007] NSWCA 282 (1980) 146 CLR 40 3 [2007] NSWCA 69 2
Recent Appellate Decision Means The Ceiling Doesn’t Fall In On Landlords by Melanie Cox
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Melanie Cox Lawyer T: 02 8257 5770 melanie.cox@turkslegal.com.au
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