In a recent decision of the Supreme Court Court of Appeal[1] a decision of the District Court of Queensland was upheld holding the owners of property liable for the ultimate death of a tradesman they had employed to undertake work at the property.

 

The case centered around a claim by the widow of the tradesman for loss of dependency as a result of the death of her husband from injuries sustained when he fell down a drain pipe on residential land at Indooroopilly.  The widow was awarded $445,000 damages in the first instance and this award was upheld on appeal.

The original decision of the District Court was based upon a finding that the owners of the property were negligent in failing to warn the tradesman about the existence of the drainpipe on the property.

 

Briefly the facts of the case were that the deceased tradesman had been employed by the owners of the property to undertake general gardening and lawn mowing services on their behalf. The incident the subject of the claim occurred while the deceased tradesman was trimming shrubbery in an area located behind a pool and adjacent to the rear boundary of the property. The tradesman whilst undertaking this task stepped onto an area where there was a drainage pipe over two metres deep which was covered by a metal lid which contained a metal grate. As he did so, the grate gave way and he fell two metres into the drainage pipe. From the evidence it appears that the steel grate had rusted over time. From the evidence it also appears that the area in question was overgrown with foliage and dead leaves.

 

As a result of the injuries suffered by the tradesman, he ultimately died. However before he died he had given instructions to his solicitors about the incident. He had advised his solicitors that he had not been told by the owners of the property about the existence of the drainage pipe or the metal grate.

 

The owners of the property purchased the property in 2007. When they purchased the property they were made aware that there was a drainage easement running along the back of the property adjacent to the pool.  A majority of the evidence went towards the owners’ knowledge of the existence of the drainage pipe. They denied that they were aware of the existence of the drainage pipe and the metal grille.

 

The original trial judge made a finding that the owners of the property ought to have known of the existence of the drainage pipe.

 

The decision seems to be based upon an assumption that the owners of the property 'should have known' of the existence of the drainage pipe. This finding was based upon unexplained evidence about some PVC piping and planting of palm trees near the subject area.

 

There was no direct evidence that the owners of the property were aware of the existence of the drainage pipe or the metal grate. 

 

Based upon evidence concerning the existence of the PVC piping in the general area of the metal grate, the trial judge concluded (again despite a denial by the owners of the property) that these items were placed there by the owners of the property. He went on to say that that conclusion supported an inference (my emphasis) that the owners of the property were aware of the presence of the metal grate prior to the fall of the deceased.

 

The appellate judge then went on to say:

 

“Those instructions required the Deceased to specifically undertake work in the vicinity of the metal cover and associated pit. There was an obligation on the Appellants (the owners) to inspect that area to ascertain whether there was any hazard there which a reasonable person, knowing the Deceased would or could be working in that area, would take steps toprotect the Deceased against. The Appellants had not done so”.

 

The Appellate judge stated further:

 

“It was open to the trial judge to conclude that once the Appellants knew of the existence of the drain they would, as reasonable people, have inspected it, within a reasonable time of their occupancy of the property. It was, as the Respondent contends, properly a matter for the trial judge to consider the Appellants' denials as to the knowledge of the drainage pipe against that background.”

 

Essentially therefore the decision was based entirely upon an inference (albeit based on evidence from which further inferences were drawn) that the owners of the property ought (my emphasis) to have known of the existence of the metal grille and drain.

 

What then are the consequences for the property management industry?

 

We would suggest several.

 

Firstly, when taking over management of a property we would suggest that the owner be specifically asked, in writing preferably, to specify whether there are any known hazards, defects or other issues affecting the property. This would not be limited to the residence itself but to the land as a whole.

 

Whether or not that request is made, prior to entering into a management agreement a thorough inspection of the property should be undertaken. Again this should not only include the residence but the land as well. Any issue regarding the property should be reported to the owner (in writing). It is then up to the owner to undertake any remedial action. If you have reported it then you have fulfilled your duty of care, but again it is stressed it should be in writing,

 

If you decide to take on the management and the owner has not accepted that remedial work needs to be undertaken, then you have an obligation to notify and tenant who is going to occupy the property of any matter that you consider to be potentially hazard (again in writing). We would suggest that that be done before any tenancy agreement is signed.

 

Inspections. You are the eyes and ears of the owner of the property. You are their agent. The onus to inspect the property falls on your shoulders. Many property managers believe that an inspection merely involves checking to see whether the tenant is maintaining the property properly. So wrong. An inspection also involves checking to see if there are any hazards or defects associated with the property. Your failure to properly identify any of these matters on a routine inspection may result in your owner being held liable for damages (and as a consequence, as you are the owner’s agent) your agency as well.

 

The unfortunate fact is that liability for damage to others is being extended. The case referred to extends that liability to 'inferences' about a person’s knowledge of a property. As the landlord's agent, that ultimate duty of care can extend to you as the property manager.

 

That duty of care relates not only to the tenant, but any tradesman that you have undertaking work at that property.

 

Apart from taking the steps we have referred to above, always ensure that any management that you agree to take on has a policy of public liability in place – and that means ensuring that you receive a certificate of currency each year.

 

 

[1] Johnson& Anor v Hancock [2014] QCA 130 (3 June 2014)