Moray & Agnew recently successfully defended a claim against the occupier of a home when his friend and guest injured her fingers opening a window in the bedroom in which she was staying. The Magistrate held that the incident was not foreseeable nor that an occupier in the defendant’s position, acting reasonably, had an obligation to undertake an inspection of the room to identify safety risks. The plaintiff failed to demonstrate the defendant was negligent with reference to the requirements in s43 of the Civil Law (Wrongs) Act 2002 (ACT).

Background

On 28 July 2020, the plaintiff requested to stay in the defendant’s room urgently and on short-notice due to health concerns after black mould was located at her house. She knew the defendant intended to travel interstate the following day. The defendant, who was the plaintiff’s friend, was initially reluctant but ultimately agreed to allow the plaintiff to stay in his room while he was away.

The plaintiff attended the defendant’s house that evening to meet the boarders in the defendant’s house and for a brief orientation.

The defendant left for his trip the next morning, and the plaintiff attended his house at around lunch time to drop off some of her belongings. When doing so, she unlatched a double hung sash window in the defendant’s bedroom to air the room when the top sash suddenly fell, and the plaintiff’s hand became trapped between the upper and lower sashes of the window until emergency services were able to release it.

A liability expert retained by the plaintiff was of the opinion that the upper sash of the window fell due to damage to the mechanism that balanced the weight of the window sashes. Magistrate Temby found that the window had lost one of two spiral rods some time prior to the incident, with the second rod likely coming free when the plaintiff attempted to open it and causing an imbalance in the window.

The plaintiff alleged that the defendant knew, or ought to have known, of the defective window as he had observed a spiral rod lying on the ground outside the window some years prior to the incident. The risk of harm to the plaintiff was not insignificant, and it was alleged the defendant had an obligation to warn her of the danger or remove it.

In the alternative, the plaintiff alleged that the defendant ought to have carried out a safety inspection of his bedroom, inclusive of checking all mechanisms, before permitting the plaintiff to use it. Had he done so, it was contended he would have discovered the damaged window and ought to have warned the plaintiff not to use it.

Further in the alternative, in absence of having undertaken an inspection, the plaintiff asserted that the defendant should have directed her not to open the window.

The defendant gave evidence that, during the orientation, he had directed the plaintiff not to open this particular window, not because he knew it was faulty (which he said he didn’t), but because the flyscreen was broken and he did not want bugs and spiders entering the house.

Findings

Magistrate Temby was not satisfied that the defendant was aware of the defect in the balancing mechanism in his bedroom window, nor that any facts existed that should have alerted him to the defect. This was despite having observed a metal rod near the window some years prior. His Honour accepted the defendant’s evidence that he had not been curious about this rod and had made no investigations as to where it came from, nor did the defendant know it came from the window.

Having reviewed several decisions as to the duties owed by a landlord, the Magistrate also found that the defendant was not obliged to undertake an inspection of the bedroom. This was particularly so given the defendant was living in the bedroom at the time he agreed to let the plaintiff stay in it, there was no evidence that the bedroom was inherently dangerous, nor was there anything to suggest that it was a place where hazards would commonly be found so as to give rise to a need to undertake a safety inspection.

It was also relevant also to this finding that the arrangements for the plaintiff to stay in the defendant’s bedroom were made urgently and at short notice.

Where the obligation to conduct an inspection did exist, his Honour considered that any such inspection would not require anything more than a visual inspection of the room to identify any obvious hazards, such as an extension cord on the ground that might present a tripping hazard or any electrical cords or overloading of power boards that might present a risk of fire.

Implications

While every case will turn on its facts, this decision confirms the long held view by the courts that there is no duty on occupiers of residential properties to take steps to identify latent defects or to take any precautions unless they are on notice that the premises may be unsafe. It was held not to matter whether or  not the plaintiff was found to be a paying guest on this occasion (although this was disputed), but the nature of the premises and the window were not such that the defendant could have been alerted to the incident that transpired.

A prudent occupier should undertake a visual inspection and remove any obvious hazards in circumstances where they invite guests to their house, but is otherwise not obliged in general terms to conduct a safety inspection of their premises.

Lauren Smith, special counsel, and Victoria Jamieson, lawyer, acted for the defendant in Howard v Holdaway.

Further information / assistance regarding the issues raised in this article is available from the authors, Lauren Smith, special counsel, Victoria Jamieson, lawyer, or your usual contact at Moray & Agnew.