GREENSLADE -v- HIEW [2020] WADC 120
This case concerned the liability of a landlord for injuries sustained by a tenant following a ceiling collapse in a rental premises. The tenant suffered a compression type injury emanating from a C6 nerve root injury that radiated from the spine to the left shoulder, arm, and hand.
The case turned on the duty of care owed by a landlord to a tenant for the maintenance of an occupied premises. The point of departure was the landlord does not enjoy immunity in the manner contemplated in Cavalier v Pope [1906] AC 428. The “Cavalier” approach is that a landlord who lets a house in a dangerous state is not liable to the tenant’s customers or guests for accidents happening during the term. The court held that, in the absence of fraud there is no law against letting a tumbledown house. The Court noted that the “Cavalier” case was no longer good law in Australia and had been rejected in the case of Northern Sandblasting v Harris (1997) 188 CLR 313.
The tenants further did not rely upon the Occupiers Liability Act 1985 (WA) (“Act”), but instead relied upon the common law principles established in Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166, which the court in the Cavalier case noted was the leading case on the subject.
In the Jones case, the plaintiff was the son of the tenants of a residential property owned by the defendant. He suffered injuries after walking through a glass door, believing it to be open. The glass door appeared to be in good repair and operating normally. Furthermore, the door was fitted in accordance with the with building standards and regulations applicable at the time of construction. But the regulations changed before tenancy started and the glass door was not in compliance with these new standards. Interestingly, the court held that that s 9(1) of the Act did not create a statutory duty of care for the landlord, but there was a common law duty. The court did not find that the landlord had breached his common law duty as the law does not require expert inspections of the house without the landlord being alerted to a problem.
The question therefor in this case was the nature of the landlord’s duty to the tenant. The court found that ‘the common law duty of care owed by a landlord to a tenant and other members of the tenant’s household is to take reasonable care to avoid foreseeable risks of harm to those persons having regard to all the circumstances of the case’. This duty is no more than a duty to take reasonable care and liability is not strict.
The next question was whether it is reasonable to require an owner of the premises to have them inspected by an expert before letting. The answer is that it depends on the facts of the case and the relevant circumstances will include both those of which the landlord knew and those of which the landlord ought reasonably to have known.
The duty requires a landlord not to let premises that suffer defects which the landlord knows or ought to know make the premises unsafe for the use for which it is let. This duty is discharged if the landlord takes reasonable steps to ascertain the existence of any such defects. If he discovers defects, he should take reasonable steps to remove them or to make the premises safe.
This duty does not require the institution of a system of regular inspection for defects during the tenancy. If there is no special contractual arrangement, notice of defect, or legislative requirement, the landlord does not usually have a special duty to inspect. There may be exceptions to this rule depending on the facts of the case. In this case the court found that there was nothing to alert the landlord to the problem with the ceiling and that she had therefore not breached her duty to the tenant. Consequently, she was not found liable in tort.
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