NEGLIGENCE – lessor’s duty of care to incoming tenant – residential premises – unsafe steps – content of duty of care – whether duty to put and keep the premises in a state of safe repair – whether duty to take reasonable care to avoid foreseeable risk of injury – dangerous defect – good building practice at time of construction – safety standards at time of tenancy agreement – obvious danger. (D)
Appellants: None on record Respondent: Lyons & Lyons
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
DC 4135/2002
LOWER COURT JUDICIAL OFFICER:
Patten DCJ
CA 40915/2004 DC 4135/2002
MASON P BEAZLEY JA BROWNIE AJA
Wednesday 23 November 2005
SAKOUA & Anor v WILLIAMS
BACKGROUND
The respondent/plaintiff brought proceedings against the appellants, the owners of a residential property that she rented, after she fell down the three front steps of the property. The respondent claimed that the appellants were negligent in failing to provide safe access to the house. In particular, she alleged that the absence of a handrail and landing on the stairs and the presence of a tree stump in the vicinity of the stairs made them unsafe. She also claimed that the stairs were uneven and shrubs encroached upon the stairs and impeded safe access to the house.
The trial judge found the appellants to have been negligent and the respondent to have been contributorily negligent. His Honour assessed contributory negligence at fifteen per cent. In the Court of Appeal, the appellants challenged the trial judge’s finding of negligence.
HELD:
Per Mason P (Brownie AJA agreeing) allowing the appeal:
While Jones v Bartlett(2000) 205 CLR 166 established that the lessor of residential premises owes a duty of care to an incoming tenant, that decision does not support a duty to repair beyond addressing defects of which the lessor is aware or ought to be aware, where a defect is more than a condition capable of causing injury.
In order to establish negligence, the respondent needed to prove unreasonable want of care with respect to defects at the inception of…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Sakoua v Williams [2005] NSWCA 405
Case
[2005] NSWCA 405
Decision Date
CaseChat Overview and Summary
Sakoua v Williams concerned a claim brought by the plaintiff, Ms Sakoua, against the defendants, Mr and Ms Williams, who were the lessors of residential premises. Ms Sakoua alleged that she suffered injury due to a dangerous defect in the steps leading to the premises, which she claimed the lessors had a duty to repair. The matter was heard in the Court of Appeal of New South Wales.
The central legal issue before the court was the extent of a lessor's duty of care to an incoming tenant in relation to the condition of the premises. Specifically, the court had to determine whether the duty extended to ensuring the premises were in a state of safe repair, or whether it was confined to taking reasonable care to avoid a foreseeable risk of injury arising from a dangerous defect. The court also considered whether the age of the building and the prevailing building practices and safety standards at the time of construction and the tenancy agreement were relevant to the assessment of the lessor's duty and any breach thereof, as well as the concept of an obvious danger.
The Court of Appeal found that the duty of care owed by a landlord to a tenant in respect of the condition of the premises is not an absolute one to keep them in repair. Rather, it is a duty to take reasonable care to avoid a foreseeable risk of injury. The court held that the steps, while perhaps not conforming to modern standards, did not constitute a dangerous defect at the time of the tenancy agreement, particularly given the building's age and the prevailing standards then. The danger, if any, was considered obvious, and the lessors were not found to have breached their duty of care.
Consequently, the appeal was upheld, and the verdict was entered for the defendants.