Locking down liability - a discussion of a landlord's duty of care24 May 2018 | Residential Premises
The plaintiff suffered severe burns following an explosion and fire at premises owned by the first defendants and leased to their adult children, the second defendants. The court found the scope of the first defendants' duty as landlords did not extend to a danger introduced by the second defendant tenants and dismissed the claim.
- Were the first defendants occupiers and/or landlords at the relevant time?
- What, if any, statutory or common law duty of care did the first defendants owe the plaintiff?
- If there was an applicable duty of care, what precautions should the first defendants reasonably have taken against the foreseeable risk of injury?
- Did any breach of duty (if found) cause the injury to the plaintiff?
Mr Baker (the plaintiff) was injured following an explosion and fire at premises owned by Mr and Mrs Lock (the first defendants). The premises were occupied by the first defendants' adult children Robert and Jo-Anne (together, the second defendants), however there was no written lease. The first defendants did not live locally nor visit the premises regularly, but retained some financial responsibility for the payment of bills.
The accident and injuries occurred when the second defendant lit a cigarette lighter next to an open drum of paint thinners inside a shed located on the premises. The flammable paint thinner vapour ignited causing an explosion and fire. The plaintiff sustained burns to 33.5% of his body and permanent scarring bilaterally to his hands, arms, legs and feet. The plaintiff was a lawful entrant at the time of the accident, having been engaged by the second defendant to conduct repairs to his motorcycle.
The Decision at Trial
The court inferred from the nature of the arrangement between the family members that the second defendants had exclusive possession of the premises pursuant to an informal lease (rather than simply a license to occupy). Accordingly, the first defendants were landlords at all relevant times and not occupiers for the purpose of section 2 of the Occupiers’ Liability Act 1985 (WA) (OLA). Pursuant to section 9 of the OLA, the first defendants' duty of care extended to dangers arising from any failure to maintain and repair the premises. The court found no evidence that the first defendants failed to carry out these responsibilities and no evidence that the explosion and fire were caused by any failure to maintain or repair the premises.
The court also held that the first defendants owed a common law duty of care to repair dangerous defects of which they reasonably should have known, but noted that a distinction must be drawn between dangers arising from the premises and dangers on the premises. The court found no evidence that the first defendants had any knowledge of flammable materials on the premises or ignition sources in the presence of those materials and no evidence that the shed was defective in any relevant sense. Accordingly, neither the statutory nor the common law duty of care extended to the danger the second defendant created.
Despite the conclusion on duty of care, the court went further to find that even if there was an applicable duty of care, the steps that the first defendants could have reasonably taken to discharge that duty (such as erecting a warning sign) would not have prevented the accident. Accordingly, there was no causal link between any omission by the first defendants and the injuries suffered by the plaintiff. The claim was dismissed.
Implications for you
While this case does not break any new ground regarding breach of statutory or common law duties for landlords, it does reinforce the notion that ultimately the scope of these duties is determined by the nature of the relationship between the parties, which involves a factual examination of their respective rights and responsibilities. In particular, landlords who have given up exclusive possession to the tenant(s) will not be expected to remedy all dangers that arise on the premises, rather only those that arise from an inherent defect in the premises or a failure to maintain or repair the premises that they should reasonably be aware of.
When granting a lease or license to occupy a premises, it is critically important to draft a written agreement that delineates the respective rights and responsibilities of the parties and to be aware of any additional statutory obligations such as those imposed by the OLA. When a claim arises out of an alleged breach, it is also important to not just enquire into the existence of a duty of care, but to identify the precise nature and content of that duty, in order to correctly assess any exposure to liability.