Residential tenancies – Jones v Bartlett applied

Sheehy v Hobbs [2012] QSC 333

On 14/03/2007 the plaintiff was rendered a partial paraplegic when she fell down some internal steps in the residential unit she rented. McMeekin J considered the expert evidence of Mr Kahler and considered the stairs could have been made safer in a number of ways and that in some aspects; it did not meet the minimum building code. Furthermore, if these steps were taken it would have substantially reduced the risk. His Honour then considered the statutory duty imposed and the common law duty as defined by the High Court in Jones v Bartlett (2000) 205 CLR 166 and found against the plaintiff.

His Honour concluded there was not obvious risk despite the steps which could have been taken to make the steps safer, because they would not have been immediately obvious to a lay person and for a number of reasons there was no requirement for a landlord to engage an expert to determine latent defects. Hence, in the absence of notice (actual or constructive) of a “defect” to the landlord, His Honour determined that there could be no breach of duty, whether contractual, statutory or at common law. In so doing, His Honour summarised the decision in Jones v Bartlett as follows:

[100] As mentioned the plurality in Jones v Bartlett did not agree on the precise formulation of the duty owed, but the plurality judgments at least stand for these propositions:

(a) 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 (Gleeson CJ at pp184- 185 [57]; Gaudron J pp192-193 [90]-[92]; Gummow and Hayne JJ at p214-216 [171]-[173] and p221 [193]; Callinan J at p252 [289]); (b) it is necessary to show that the premises are defective in the relevant sense and that the landlords knew or ought to have known of that defect (Gleeson CJ at pp177-178 [22]-[26]; to an extent Gaudron J at p192 [88]; Gummow and Hayne JJ at p217 [178] and p220 [186]; Kirby J at pp140-141 [252]); and

(c) there is no obligation to replace items which, although not defective, involve a foreseeable risk of injury simply because safer items are available (per Gleeson C J at p184 [56]; per Gaudron J at p192 [90]- [91] and [93]; per Gummow and Hayne JJ at p205 [137] and at p216 [173]); per Kirby J at p239 [249]; per Callinan J at p252 [289]).

Brisbane Barrister – David Cormack

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