Is landlord liable if tenant falls off an edge?

Onto the lawn. Just refers to where he fell. Not how. Irrelevant in a court unless its a spiked pole

Public liability insurance may be the key issue. Not how or why or where.

 

According to Kerri Anne in her autobiography (and she was actually there), he fell off the verandah.

“Afterwards we went downstairs to the verandah ...... Then I turned and saw him lying on the grass below the small hedge hemming the verandah”.... (P.331)

As I said, a hedge did not help him.
Marg

 

Put sharp spikes. If they fall off a 500mm drop the insurer will just chalk it up to natural selection in process.

 

The aim of any landlord should be to make their property as attractive as possible to the widest possible range of tenants.

Strictly speaking a fence or railing is probably not legally required by the building code. That does not prevent a claim being made.

But if the cost is not unreasonable, and if it makes the property desirable to a wider range of tenants, then a railing may be money well spent.
Marg

 

Better to make the fall higher. Death before disability. Dead people tend not to sue.

 

There are two totally different concepts being interchanged in this thread: statutory compliance and negligence.

What we need to be talking about, given the question, is negligence, because the risk here is a claim in negligence.

What you're required to do under laws and regulations such as building codes and council regulations etc is to do with statutory compliance. Complying with these things is how you avoid getting a fine, or being subject to enforcement action by a Council or building authority, for not complying with the relevant regulations.

Negligence, however, is a totally different kettle of fish, and dealt with under the common law. Unfortunately, nobody can tell you precisely what you're required to do to avoid ever being subject to a claim in negligence. Being decided under the common law gives the negligence action the flexibility to be decided on a case-by-case basis. (There are statutes dealing with how negligence cases will be tried, etc., but there's no statute outlining 'how to build your house or precisely what to do to avoid ever being found liable in negligence'.)

The test as to whether you've breached your duty of care comes down to two questions the court will ask, drawn from the case of Wyong v Shirt:

• would a reasonable person have foreseen the particular risk of injury?
• would a reasonable person have done something to reduce that risk?

So here the relevant questions a court will ask are: would a reasonable person think there's a risk of somebody to whom the landlord owes a duty - ie a tenant or their guest - falling off this platform and hurting themselves?

It seems from the discussion that there is a reasonable risk of that happening. The risk doesn't have to be significant or likely, just 'not far-fetched or fanciful'. We have to think of kids and old people - because our duty as landlords extends to guests of our tenants, and it's reasonable to assume that at some point, even if the tenants are a young fit couple, they'll have old people or kids visiting.

So then the question is, what is reasonable for the landlord to do in response to this identified risk?

Statutory compliance would be a factor in considering whether you've complied with your duty of care but isn't determinative.

• If you've complied with the council / building code requirements but it still looks unsafe, then a reasonable person still has to do something to make it safe; it wouldn't be satisfactory to a court to say 'well I did what was required'. 'Mere compliance with a Standard, or even with common practice, does not solely or even primarily determine whether negligence exists or not' - Woods CJ in Lanza v Codemo
• If you haven't complied and it's unsafe, well, you're definitely not in a good place with the court.

Other factors would be the cost required to make it safe, the perceived likelihood of an injury, etc.

If you can show that it was a freak accident in which the person hurt themselves, and that it wasn't reasonable for you to have anticipated that anybody would hurt themselves, then you may be justified in not having taken any steps at all.

If it would cost $50,000 to reduce the risk, and the property was only worth $200,000, then it likely would be considered unreasonable to expend that much making it safe. Though you'd still have to do whatever could be done cost-effectively to keep people safe, such as preventing people from accessing that area.

If it seems like there's a reasonable chance somebody could hurt themselves, and a few hundred or even a few thousand dollars of railing or landscaping could have ameliorated or prevented it, it is likely to be deemed unreasonable not to have addressed it.

Just a friendly tip: courts don't generally view landlords who fail to address safety issues very kindly.

And just for good measure, a few minutes' searching found a near-identical scenario, where the NSW Department of Housing lost: NSW Department of Housing v Hume

Disclaimer: I am not (yet) a lawyer and this is not legal advice etc etc

 

You could stipulate in your tenancy agreement that tenants are in breach if they are not constantly wrapped in bubble wrap.

 

My reading of the judgement at the link above (Dept of Housing v Hume) is that there had been previous complaints about the stairs so a reasonable person might surmise that there was some danger.

In contrast, other similar cases are mentioned in the judgement, where railings etc were not present, but the action of the defendant was still found to be reasonable so the attempt to sue failed.

 

Do courts now apply a 'reasonable person' test? Wyong and shirt would have certainly been a 'reasonable man' test.

 

Shirt was a bloke... but at that time - 1980 - it was already a 'reasonable person' test.

Or have I missed a joke, dammit?

 

The fact that the landlord is asking about this means there is a perceived risk.

 

I'm sure he was. What makes you say so? Perhaps you're referring to my written version of 'v' versus the spoken 'and'?

Perhaps 'versus; V' is no longer spoken as 'and'?

When I studied law in the early/mid 90's it was always a man and not a person test.

Your citation only refers to a reasonable man, not a reasonable person. It's clear that we had a rather sexist legal system in the 80's and 90's. I wonder when it actually changed?

 

No, it's 'and'.

I say Shirt was a man because I've read a description of the case that refers to him as such.

I think perhaps you had sexist lecturers. Wyong v Shirt uses 'reasonable person' (see para 12 of the judgment) - it only refers to 'reasonable man' when quoting older judgments.