Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 25 May 2019.
Michael decides to rent his two-bedroom home to Elizabeth.
Michael does not inspect the property for any dangers nor does he retain a builder or handyman to inspect the property.
The property has a rear deck that is 1.5 m above the ground.
Unbeknown to Michael, the deck railing contains rot, which was not evident from a casual visual inspection, as there was paint covering it.
A few days after Elizabeth moves into the property, she leans against the railing and it gives-way. Elizabeth falls onto the concrete path below and severely injures her lower back.
Elizabeth sees a personal injury lawyer and proceedings are commenced against Michael.
Michael’s insurer denies the claim, arguing that the injury was a result of an “obvious risk”.
The court does not accept the insurer’s argument and rules that it was reasonable for Elizabeth to expect to be able to lean against the railing on the basis that this was the obvious purpose of the railing in the first place.
Fortunately, Elizabeth is able to return to full-time employment and her injury does not require surgery, although she is the left with a significant disability.
The court orders that Elizabeth is entitled to compensation for “non-economic loss”. The court rules that her continuing disability equates to 28% of a most extreme case and that she is entitled to $89,000 under this “head of damage”.
After the other heads of damage are taken into account, including medical expenses, domestic assistance and past loss of wages, the court orders that Elizabeth is entitled to a total of $235,000 plus the payment of her legal costs.
Michael’s insurer ultimately pays the damages to Elizabeth.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
