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Benchmark - Real Estate Cases & Commentary
Tenancy matters
    •  Injury
        -  To tenant
            >  Slip and fall resulting from defects in shower
            >  Fall from unlit patio



Slip and fall resulting from defects in shower 

It is extremely important for managing agents and landlords to maintain proper records, especially when it comes to matters relating to tenant complaints and repairs. Agents should also scrutinise the terms of the Managing Agency Agreement carefully. In particular, agents should scrutinise any amendments to standard terms and conditions requested by landlords because those amendments will probably seek changes in favour of the landlord to the detriment of the agent.

The tenant of a residential unit sued the landlord for damages in respect of a slip and fall accident which occurred on the rental premises. The tenant claimed that she slipped on wet bathroom floor tiles when stepping out of the shower, injuring her left leg and back. The shower enclosure was not properly sealed, causing large quantities of water to leak onto the floor each time the shower was used.

The tenant maintained that she had made between 20 and 70 complaints to the managing agent about the defects in the shower. The managing agent denied receiving any complaints, either verbally or in writing. The tenant could not produce any written record of complaints about the shower, although she had written to the agent about other defects in the property. The agent was in the practice of logging complaints and the responses and was able to produce a printout suggesting that the tenant had not complained about a leaking shower. The Residential Premises Condition Report completed by the tenant seven days after moving into the unit made no reference to a leak in the shower.

The landlord claimed that the managing agent was liable for the damage because the landlord was unaware of any complaints and had left all matters relating to the management of the unit to the agent. The clause in the Managing Agency Agreement which would normally provide an indemnity in favour of the agent had been deleted.

The tenant’s claim was rejected. The Court was not convinced that the tenant had ever informed the landlord or the managing agent of the leaking shower. However, if the tenant’s version of events had been accepted, the Court would have held the agent liable in damages for the tenant’s injuries.


Hilditch v Dhasmana [2009] NSWDC 27


 
Fall from unlit patio 

It is important for agents to maintain proper records of repairs to rented premises. In this case, both the landlords and the agent were sued for a slip and fall injury by a tenant. Both the landlords and the agent were successful in defending the claim because the Court accepted that the agent had arranged for repairs to be done to the landlord’s premises and that the tenant had not informed the agent that the lights on an unfenced patio needed to be fixed.

The tenant was smoking outside on a raised unfenced patio. He fell off the patio, and suffered injuries to his foot and leg. He sued the landlords and their managing agent for damages. He claimed that when he fell he was in complete darkness, because the patio light had ceased to function, thus creating a hazard and a danger. He also claimed that the light had not been repaired by the managing agents when he asked them to do so.

The Court rejected the tenant’s claim. The Court did not accept that the tenant had informed the landlords that the lights did not work because the agents had organised for an electrician to make other electrical repairs to the premises. The evidence of the electrician was that he would have fixed the patio light if the tenant had asked him to do so. The Court also found that, if there had been a defect in the patio light, the tenant could have arranged for urgent repairs by the electrician in accordance with the Residential Tenancy Agreement.

O’Rourke v Johnston [2009] NSWDC 317