Queensland: Landlord not liable for tenant's fall

The court's decision in Sheehy v Hobbs [2012] QSC 333 will come as a relief to residential landlords, affirming the principle that a landlord cannot be held liable for a defect in a property without notice (actual or constructive) of the defect. 

The plaintiff was left a partial paraplegic following a fall down a flight of stairs in her unit. In her claim for damages, the tenant alleged that the stairs were steep, had no handrails, were insufficiently lit and had insufficient levels of grip, and that the landlords had breached their duties pursuant to s 103 of the Residential Tenancies Act 1994 (Qld), her tenancy agreement and at common law. 

The landlords maintained that the stairs met the requirements of the Building Code of Australia when constructed, at the time of the commencement of the tenancy, and the date of the accident. They had no notice, either actual or constructive, of any defect with the stairs, and this was sufficient to discharge the duties owed by them.

The Supreme Court found that the stairs were probably unsafe, and did not meet the minimum requirements laid down by the Building Code of Australia. However, the decision was made in favour of the landlords, with the court noting that the duty owed by a landlord involves no more than the taking of reasonable steps to discover and deal with the risk of injury. In this case, the defect was not easily observable, and would not have been discoverable unless the landlords had engaged an engineer. As such, there was no way that the landlords could have known that the level of risk was out of the ordinary for stairs in a residential unit complex.

The court also referenced the decision of the High Court in Jones v Bartlett [2000] HCA 56, which set out three principles that precluded a finding in the tenant’s favour:

• A landlord of residential premises has no duty 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 that the premises are defective in the relevant sense and that the landlord knew or ought to have known of that defect

• There is no obligation to replace items which, although not defective, involve a foreseeable risk of injury simply because safer items are available.

The court observed that in the absence of any evidence of actual or constructive notice of a “defect”, there could be no breach of duty, whether contractual, statutory or at common law. There was no evidence that the landlords had ever received a complaint about the stairs, and they had carried out regular inspects on the premises throughout the course of the tenancy. Thus, Justice McMeekin's decision has again recognised the commercial limitations of a landlord's duty of care, and reaffirmed that without a landlord's actual or constructive notice of a risk, a landlord's duty cannot be set to any higher standard. 

Make it easy to track Australian legislation relevant to your area of legal expertise by becoming a subscriber to LawTracker. Contact us for full pricing information or to trial the service for free.