Hauser v Commissioner for Social Housing

HAUSER v COMMISSIONER FOR SOCIAL HOUSING
 [2013] ACTSC 104 (13 June 2013)

NEGLIGENCE – personal injury – claim by tenant against landlord for injury resulting from assault by neighbouring tenant – defendant failing adequately to secure plaintiff’s apartment – causation not established – no negligence

CONTRACT – breach of contract – claim by tenant against landlord for personal injury – claimed breach of tenancy agreement provision requiring secure premises – breach not made out – causation not made out

Housing Assistance Act 2007 (ACT)
Residential Tenancies Act 1997 (ACT)

Civil Law (Wrongs) Act 2002 (ACT) ss 42­–45, 110, 168

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
Eliezer v Residential Tribunal (2001) 53 NSWR 657
Lyons v Commissioner for Housing [2004] ACTSC 126
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254
Proprietors of Strata Plan 17226 v Drakulic (2002) 55 NSWLR 659
Smith v Leurs (1945) 70 CLR 256

No. SC 452 of 2010

Judge:             Master Harper             
Supreme Court of the ACT

Date:              13 June 2013

IN THE SUPREME COURT OF THE     )
  )          No. SC 452 of 2010
AUSTRALIAN CAPITAL TERRITORY           )          

BETWEEN:  PAUL VINCENT HAUSER

Plaintiff         

AND:  COMMISSIONER FOR
  SOCIAL HOUSING

Defendant

ORDER

Judge:  Master Harper
Date:  13 June 2013
Place:  Canberra

THE COURT ORDERS THAT:

1. judgment be entered for the defendant.

1. the defendant’s costs be paid out of the plaintiff’s estate. 

1. The plaintiff commenced this action in 2010, claiming damages for personal injury which he suffered in the course of a criminal assault on 4 February 2008.

1. The action was heard on 6 July 2012.  On 8 November 2012 the plaintiff died.  The death certificate provided by his solicitors to the Court does not give a cause of death, but there is no claim that the death was caused by the assault.  Accordingly, for the purpose of assessing damages, it must be assumed that the plaintiff would have died on that date regardless of the assault and resulting injuries.

1. The assault happened at the plaintiff’s apartment at Owen Flats, Lyneham.  The Owen Flats are part of a public housing complex administered by the defendant, which was the lessor to the plaintiff as tenant.  The defendant administers the Housing Assistance Public Rental Housing Assistance Program, a program for the provision of public rental housing in the Australian Capital Territory.  The program has legal effect under the Housing Assistance Act 2007. 

1. The plaintiff was born in July 1961, and was 51 when he died.  He moved into the apartment in April 2004, when he signed a tenancy agreement. 

1. Before he moved in, the plaintiff had for a period been homeless, sometimes spending a few nights “couch surfing” with acquaintances, and at other times spending nights in a sleeping bag in the open.  He had at an earlier time been a public housing tenant, and more recently had lived at Ainslie Village, a group housing facility associated with the Catholic church.  He had been evicted from his room at Ainslie Village.

1. The plaintiff…