Vasilikopoulos v New South Wales Land and Housing Corporation [2010] NSWCA 91 | Case summary

Thursday 22 April 2010 VASILIKOPOULOS v NEW SOUTH WALES LAND AND HOUSING CORPORATION Judgment 1 YOUNG JA: This is an appeal from a decision of Acting District Court Judge Hungerford who found a verdict and gave judgment for the defendant in an action for personal injury suffered by the wife of a tenant of public housing of which the New South Wales Land and Housing Corporation was the landlord. 2 Although both in the District Court and in this Court the defendant was named as NSW Department of Housing its correct name is the New South Wales Land and Housing Corporation. No point was taken about the misnomer but the title for the record of the proceedings should be amended to show the respondent's proper corporate name. 3 The appellant's husband was at the time of the relevant accident, and has been since 1987, a tenant from week to week of that public housing. There does not appear to have been any problem with the accommodation until 2007. 4 The appellant, who is now 61 years of age, underwent two knee replacement operations in that year. She says that she noticed problems, severe problems, when using the shower in the premises particularly between September and December 2007. She says that the shower was in what she described as a "high conventional bath tub". From that I take it that the shower was over the bath and the bath had high walls which a person who used the shower had to deliberately step over. 5 Because of her condition the appellant found difficulty in doing this and had a series of falls, the most severe being on 9 December 2007, which caused her an injury which had plaster for many months and was an injury in respect of which she brought these proceedings so that she could receive compensation. 6 The appellant says that the defendant was made aware of her physical condition and that the shower was unsafe for her to use. Apart from examining the bathroom and taking measurements it did nothing before December 2007 when she had her serious fall. The work that she and her advisers had requested seems in fact to have been done somewhere in 2008. 7 The appellant sued the respondent for negligence. The action was not, nor could it have been based on any contract between the appellant and the respondent, nor apart from a matter that I will mention shortly, was it based on any matter arising out of the statute governing the respondent's conduct of public housing. 8 The pleading was set out in some respects incorrectly, but it is of no present moment, that the plaintiff was a tenant (she in fact was the wife of the tenant) and at the date of the accident was a disabled person, having undergone two total knee replacements. The defendant knew about those knee replacements, knew that the only shower in the premises was above a high conventional bath tub. She pleads that her medical condition meant that it was extremely difficult for her to get into the bath tub. She had had a fall in September. The defendant had been requested to provide her with a shower commensurate with her needs but the defendant did nothing and the plaintiff had another fall. 9 Thus, the pleading says, "in the circumstances the defendant was under a duty of care for the plaintiff and was in breach thereof and was negligent." 10 In the District Court, it would seem, the appellant based her case on occupier's liability. The primary judge had a little difficulty with considering the landlord as an occupier but little turns on this because the same sort of duty arises. 11 The judge however considered relevant authorities and held that the respondent did not owe the appellant the relevant duty of care and if he was wrong on that and there was such a duty, that duty had not been breached. 12 The present case is not one of a person suing under a contract of tenancy. Nor is it a case of a visitor slipping or falling because of some defect in common property as a block of home units. Nor was it put in the pleading that the housing authority owed some obligation because it knew that the tenant had a particular vulnerability though there was some flavour of that in some of the submissions. 13 It is significant that the accident happened inside the unit leased to the appellant's husband. Care must be taken when considering cases which appear factually related to remember that there is a difference between what happens on the common property and what happens to the tenant and what happens inside the tenanted unit. 14 The primary judge ruled that the landlord had let the premises in a condition fit for their primary use. The appellant's problem had come about because her own physical condition had deteriorated so that those facilities were not able to be used with the same degree of safety. The appellant put great store on the fact that, when its officers heard about the appellant's problem, they were sympathetic to it and they indicated they would attend to the problem. The appellant says effectively that if the landlord does take that responsibility on and then does nothing, then some sort of duty to do what it promised to do arises and it is negligent if it does not do it. 15 The instant riposte to that suggestion is that in a normal case of landlord and tenant, if there be such a case, the law looks to the tenant to look after her own safety and if she does suffer some sort of disability and a relatively minor alteration can make things more safe then one would normally expect the tenants to do that. 16 However, it is put in the instant case that this is public housing, that the tenants appear both to be pensioners and that the landlord of public housing is not in the same position as a "normal" landlord. 17 There is no authority put for that proposition and I must confess I find it difficult to accept it. The learned primary judge also did not accept it though I am not too sure the exact same proposition was put to him. 18 However, even though he had found a verdict for the defendant in accordance with usual practice, the primary judge went on to assess the damages on the basis that the respondent was liable. He held that non-economic loss was 23% in the most extreme case, meriting an award of $20,500, out of pocket expenses and a buffer for future out of pocket expenses were added. In addition $27,481.60 for past domestic assistance and $12,488 for future domestic assistance, making a total verdict of $53,179.89. However this was discounted by 10% for contributory negligence, meaning that had the primary judge found for the appellant he would have given judgment in her favour of $56,861.90. 19 The appellant appealed allegedly on all grounds including that the damages should have been assessed at a figure above $360,000. It is probably questionable as to whether this appeal does involve more than $100,000 but no point was taken and I will not waste time discussing that possibility. 20 At the hearing of the appeal Ms Norton SC and Mr Khandhar appeared for the appellant and Mr M L Williams SC appeared for the respondent. Ms Norton's submitted that the primary judge took too narrow a view for the landlord's liability. She put that the decision of this Court in New South Wales Department of Housing v Hume [2007] NSWCA 69 was a good guide as to what the current law was and that the test was whether the landlord had taken reasonable care to avoid foreseeable risk of injury. The landlord is required to take such steps as are reasonable in all the circumstances. 21 That, however, does not take it very far, because it is quite clear from the authorities cited by Justice McColl, who gave the leading judgment in Hume, that the prime focus of that test is on the state of the premises at the time of the letting. Here there is no problem at all in 1987 and the building was then apparently fit for the purpose of letting as a residence. 22 However, there are indications in Hume's case and elsewhere that there would be circumstances where defects occur later where the landlord would not have a duty to take reasonable steps to remove the defect or make the premises safe. Again, that defects seem to relate to the condition of the premises or the fittings in the premises for which the landlord is responsible, and the mere fact that what is safe for people without disabilities may become unsafe if particular physical disabilities are suffered by the tenant or his wife, does not seem to me to fall within the proposition. 23 The respondent says that there is no authority for the proposition that when premises become unsuitable by reason of the deteriorating physical condition of the occupants and the landlord knows about that, that the landlord has a duty to remedy the matter. That appears to be the key plank in the appellant's argument. 24 However, Ms Norton says that it is not necessarily the case that whenever that situation arises that the landlord would have a duty, but one must look at all the circumstances of this particular case. Here the respondent was made aware of the problems for the appellant. It received a request from her doctor and a Health Department occupational therapist advised that action should be taken. It acknowledged that that work should be done and gave it "priority one" whatever that means, and did some work in measuring up and making estimates in November 2007 but continued to delay so that the work was not done before the fall happened in December 2009. 25 Ms Norton also says that one must take into account s 5 of the Housing Act 2001 when setting out the objects of the Housing Act which governs the supply of public housing managed by the respondent. It includes objects such as (d) that the public housing reflects the housing standards of the general community and is designed to cater for the ongoing needs of consumers, and that ongoing needs includes the fact that people get older and frailer as the years progress. She acknowledges that there is no pleading about the Housing Act but says that is one of the circumstances that the court has to take into account when looking at the duty. 26 Ms Norton gave us an illustration of the case of the landlord to whom a defect or problem was pointed out and says to the tenant, "You have been a good tenant for the last ten years, I see you have a problem, I will fix it", and because of that the tenant herself does not fix the problem. Then there is an accident because the matter was not fixed. That may well be a case of breach of contract if one can say that the tenant's action is a form of consideration or there may be some sort of estoppel, but that is not this case. 27 It cannot be the situation that merely because a landlord considers that it has some sort of public obligation or moral obligation or that it feels sympathetic towards its tenants and thus agrees to fix something and takes longer than the tenants would like for that problem to be fixed that thereupon there is some legal burden or legal duty laid upon the landlord for which it will be liable in damages if there is a breach. 28 The respondent also puts that it is a Government instrumentality involved in the administration of a considerable amount of public housing. The mere fact that it does not take action over a complaint from tenants for a period of even six months does not necessarily establish breach of any duty even if there was a duty. 29 In its written submissions the respondent's lawyers point to the fact that in the instant case the evidence showed that the cost of the work that the tenants required because of their own personal needs rather than any defects in the premises was almost $9,000, and this in respect of accommodation returning the landlord only $125 per week. Those are relevant facts but it does not seem to me that they are more than peripheral for the present appeal. 30 In the present appeal it seems to me that there was no duty, that the learned primary judge was correct in saying that there was no duty on this particular landlord despite what it might have said, just because the premises, which were fixed when let, had become unsuitable by reason of the deteriorating physical condition of an occupant. 31 Thus in my view the primary judge's decision on liability should be upheld. 32 It is unnecessary to deal with the remaining matters. The seventh ground of appeal challenges the judge's assessment of contributory negligence but I can see no reason other than to say that the assessment was sound and within the judge's mandate. 33 As to damages, two grounds were pressed. One was that the judge should have found 30% for most extreme case rather than 23%. But again, the assessment was in the permissible range. 34 Finally the judge is said to have been less than generous with respect to future domestic assistance but again it seems to me that what he did was within the range. 35 Thus, apart from a direction to amend the title of the respondent in the court's record, in my view the appeal should be dismissed with costs. 36 HANDLEY AJA: I agree. 37 SACKVILLE AJA: I agree with the conclusions reached by the presiding Judge and with his Honour's reasons. I would add only the following. 38 It is of some importance, as Young JA has pointed out, that the case as pleaded did not rely upon any special duty that may have been owed by the respondent as a public housing authority to the appellant, whether as a tenant or the spouse of a tenant. The pleadings merely allege that there was a landlord/tenant relationship between the respondent and the appellant (or her husband) and that the duty of care upon which the appellant relies arose out of that relationship. 39 Ms Norton, on behalf of the appellant, accepted that the case would be no different if the landlord were a private individual or a corporation. In my view, the fact that there was a sympathetic response from the respondent to the request made by or on behalf of the appellant does not demonstrate that, if there was a duty of care owed by the respondent to the appellant, it breached that duty. 40 As Young JA has pointed out, Ms Norton relied upon the objects stated in s 5 of the Housing Act 2001. Ms Norton pointed to s 5(1)(a), which states that the objects of the legislation include ensuring that public housing and community housing reflects the housing standards of the general community and is designed to cater for the ongoing needs of consumers. It is also important to point out that the objects of the Act include those set out in s 5(1)(a), (b), (f) and (f1). Each of these subparagraphs requires the relevant authority to make decisions about allocation of resources and priorities. These objects must be taken into account in assessing whether the respondent has acted reasonably in any particular circumstances involving the allocation of resources. 41 Ms Norton presented the case as though the Department authorised work on the unit on or about 6 July 2007 but that it did nothing between that date and December 2007. That, I think, overstates the factual position. A document of 25 June 2007 from Sydney South West Health Service, directed to the respondent, suggested that certain work should be carried out on the premises. In fact, the work that was ultimately done was very much more extensive. The document of 6 July 2007 requested that work be carried out, but the request was expressed to be subject to confirmation that the work could be done and in any event did not specify the work required. It was necessary for specifications to be drawn up, costing to be completed, approval to be obtained, a contractor to be engaged, and other preparations undertaken. If there were any duty to exercise reasonable care to ameliorate the difficulties the appellant found herself facing, it seems to me that, on the evidence, no finding could be made that the respondent breached that duty. 42 In any event, as Young JA has pointed out, the anterior question is whether there was indeed a duty of care in the first place. 43 I agree with the orders proposed by Young JA. 44 YOUNG JA: We thank counsel for their assistance. We direct that the name of the respondent be corrected to New South Wales Land and Housing Corporation. Otherwise the appeal is dismissed with costs.

Vasilikopoulos v New South Wales Land and Housing Corporation

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Judgment (15 paragraphs)

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