Australia: The Liability Of Landlords Revisted:
Estate Of The Late Joseph James Virgona V. De Lautour [2007] NSWCA 282

Introduction

A recent decision of the New South Wales Court of Appeal, Estate of the late Joseph James Virgona v. Rachael May De Lautour (18 October 2007), has upheld the landmark High Court case of Jones v. Bartlett by deciding that a landlord did not breach its duty of care to a plaintiff tenant who fell through the roof of a rented property.

The Court of Appeal’s decision was a very practical and sensible application of legal principle, which overturned the earlier verdict in the plaintiff’s favour. Landlords and their insurers will be relieved with the outcome, which consolidates a recent trend in this area.

Facts

The plaintiff, Ms De Lautour, alleged that she sustained personal injuries whilst attempting to store her personal items in the roof area of the premises which she rented along with several other tenants. When inside the confined and dark roof space, the plaintiff placed her right foot on a thick wooden beam and her left foot on an adjoining piece of wood which she thought could support her weight. Unfortunately for the plaintiff, the adjoining piece of wood was a thin batten and could not bear her weight, causing her foot to go through the batten. Consequently she fell through the ceiling and into the bedroom below, suffering injury.

At first instance, the Trial judge held that the landlord had breached its duty to care owed to the plaintiff, on that basis that the roof had "confined space, poor lighting and the existence of some clutter", which made the roof area "hazardous to the average tenant". His Honour concluded that there were simple remedies available to reduce the hazard, such as installing proper flooring, or locking the door to the roof area to prevent it from general use.

The three judges of the New South Wales Court of Appeal (Hodgson, Ipp and Young JJ) overturned the trial judge’s decision, and upheld the landlord’s appeal.

The Court of Appeal rejected the plaintiff’s argument that the appearance of the batten on which the claimant stood was "misleading" and that the door to the roof space constituted a "trap" of which the landlord should have been aware. On the contrary, it was held that the plaintiff appreciated the risk that the roofing material including the batten may not have been able to support her weight, which was supported by the trial judge’s finding of contributory negligence.

Following Jones v. Bartlett, the Court of Appeal held that no argument could be made that the premises was not fit for ordinary habitation as a domestic residence, as there was nothing untoward or unusual about the roof area compared to other similar domestic premises. The risk of entering a roof area is well known and part of ordinary domestic life and in these circumstances, the landlord was not required to take measures to guarantee the "absolute safety" of the roof space, especially given that the landlord did not encourage the roof area to be used as storage space.

Conclusion

The case of Estate of the late Joseph James Virgona v. Rachael May De Lautour is a pleasing decision for landlords and their insurers, as it reaffirms the principle that while all premises can be made safer, that is not the legal test. Landlords are only required to act when premises are known to have a defect which is dangerous. Landlords are clearly not under a duty to eradiate all hazards, especially those which are well known and part of ordinary domestic life, such as using a roof space which is not in any way defective.

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.