Slip and fall down carpeted stairs: Sheehy v Hobbs [2012] QSC 333
Nov 2012 |Today's Supreme Court decision of Sheehy v Hobbs, in which we acted and obtained judgement for the defendant, reaffirms the law in relation to the duties owed by landlords to tenants of residential premises.
The plaintiff, Catriona Sheehy, was rendered a partial paraplegic as a result of an alleged slip and fall down internal stairs within a townhouse which she leased from the defendants in conjunction with her son and daughter. She alleged the defendants were in breach of both the statutory duties owed under the Residential Tenancies Act and the common law by letting the premises with defective stairs. Relying upon expert evidence, the plaintiff alleged the stairs were, amongst other things, steep, lacking an appropriate handrail, lacked appropriate edge delineation and were insufficiently lit.
His Honour Justice McMeekin found the stairs in question could have been made safer and contained other features which led to an increased risk of a slip and fall on the stairs. In finding in favour of the defendant however, his Honour referred to the seminal decision of Jones v Bartlett in some detail, and provided a useful synopsis of the principles to arise from that decision. His Honour noted that despite there being no agreement on the precise formulation of the duty owed in Jones, the following propositions could be taken from the numerous judgments:
- 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 them;
- it is necessary to show the premises are defective in the relevant sense and that the landlords knew or ought to have known of that defect; and
- there is no obligation to replace items which, although not defective, involve a foreseeable risk of injury simply because safer items are available.
His Honour found the defendants were not aware of any defect in the subject stairs as no prior complaints had been made by the plaintiff or the other members of the household to either the defendants or the property managers engaged by the defendants. Although finding the stairs could have been made safer, his Honour noted that a reasonable person in the position of the defendants would not reasonably be expected to have known of this fact, given any defect which may have existed was not an obvious one to a lay person. His Honour commented that for the defendants to become aware of any deficiencies in the stairs, they would have had to engage an expert with extensive knowledge of the relevant standards, which his Honour did not consider reasonable having regard to, most notably, usual practice for residential tenancies and cost.
His Honour commented that in light of the findings made, for the claim to succeed one of the following would be required:
- the adoption of a duty requiring a landlord of residential premises to ensure the premises being let are as safe for residential use as reasonable care and skill on the part of anyone could make them; or
- the absence of any need to show that, if the premises are defective, the defect was within the actual or constructive knowledge of the defendant; or
- the landlord in a residential tenancy being under an obligation to replace items which, although not defective, involve a foreseeable risk of injury because safer items are available.
Based upon the propositions enunciated inJones, his Honour concluded that he was precluded from finding for the plaintiff on any of the above grounds.
There are a number of lessons affirmed in the decision. The most critical is that in such claims it is insufficient for a plaintiff to simply prove the premises could be made safer or even that a defect in the premises exists. Often, as occurred in this matter, the investigation into the state of the premises is performed retrospectively. As like all claims in negligence, the touchstone of liability is reasonableness, such evidence serves only to highlight the availability of additional measures to reduce risk. It is not relevant to the issue of whether a defendant is obliged to implement such measures. In order to succeed in such claims, a plaintiff needs to prove not only that additional measures are available, but that a reasonable landlord in the position of the defendant would implement those measures.
As highlighted in this decision, the law in Jones requires that for such a requirement to arise, it firstly needs to be found there was a defect (in the sense the premises could be made safer), secondly, the defendant needs to have actual or constructive knowledge of the defect and, finally, it needs to be found that a reasonable person in the position of the defendant would implement the measures available (after balancing the magnitude of the risk and the likelihood of it occurring with the cost and inconvenience of taking alleviating action).
In conclusion, while the plaintiff here suffered serious injuries and would have been awarded sizeable damages had she succeeded, her case was fundamentally problematic despite evidence to show the premises was unsafe. Justice McMeekin has today again recognised the commercial limitations of a landlord's duty of care, and made clear on the back of longstanding High Court authority that absent a landlord's actual or constructive notice of a risk, a landlord's duty cannot be set to any higher standard.
