Longton Compensation Lawyers | Formerly Known As TK Legal

Public liability compensation claims arising out of injuries sustained on residential property and rental accommodation are our expertise

Homeowners, landlords and rental property management agents owe a duty of care to take reasonable precautions in response to known or suspected risks which pose a risk of injury to occupiers or visitors of a residential premises. Therefore, if you have been injured at someone else's home or your or someone else's rental accommodation you may be entitled to compensation. 

When will a homeowner and/or occupier of a residential premises be liable for my injury?

An occupier is the person in possession of the residential premises who occupies the premises and has the power to admit or exclude people onto and off the residential premises. There can be more than one occupier [i.e. a family living in the family home would be all occupiers of that home].

Often, an occupier of a residential premises is also the owner of the residential premises. However, owning the premises is not the same thing as being in possession of that premises or occupying that premises.

If, however, it is established that had the residential occupier exercised reasonable skill and care and taken precautions that would have avoided you incident and injury, the residential occupier will, in most instances, be found negligent and liable for your injuries and consequent loss.

 - Example

A landlord is the owner of a residential premises, but it is the tenant who has possession of that premises and is, therefore, an occupier of that premises. The tenant, however, may also be responsible for any injuries suffered by person who come onto the premise [i.e. visitors]. The landlord, however, will have the primary responsibility to ensure the premises are safe.

An occupier owes a duty to take reasonable care and precautions in order to avoid foreseeable risks of injury to entrants [i.e. visitors] onto the property her or she occupies. The question of whether a residential occupier is liable or has breached the duty it owes depends on whether an ordinary person in the position of the residential occupier:

• would or should have known that there was any risk of injury to visitors to the residential property [i.e. a risk of injury to you];

• whether that person, in the position of the residential occupier would or should have known of steps or precautions that could be taken in response to that risk [i.e. what could be done in order to avoid or minimise the risk]; and

• the reasonableness of taking such steps or precautions to avoid the risk of injury.

There is no universal rule as to what amounts to breach of residential duty of care, each compensation claim depends on its own particular facts and circumstances. These include the nature of the residential premises, the type of risk or hazard that was present, and, in some instances reason for the entry onto a residential property.

 - Example

Slippery front steps without a handrail, at an entry to the residential property are likely to create a hazard and a risk of injury to most people, but not to the trades-person or handyman who had been requested to attend the residential property and repair the steps and install a handrail.

If, however, it is established that had the residential occupier exercised reasonable skill and care and taken precautions that would have avoided you incident and injury, the residential occupier will, in most instances, be found negligent and liable for your injuries and consequent loss.

When will a landlord and/or real estate property manager be held to be negligent?

A landlord has a general statutory obligation to provide and maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the residential premises.

In addition to its statutory obligation, just like the occupier of a residential premises, the landlord will, also, owe duty to exercise reasonable care and take any precautions in order to avoid foreseeable [i.e. known of suspected] risks of injury to occupiers of the residential premises that the they lease from the landlord as well as any entrants [i.e. visitors] onto the residential premises. 

Often, landlords attempt to "delegate" some or all of their responsibility and their duty of care to a real estate managing agent, by entering into a contract with them to manage the residential property they a leasing to the tenants. Depending on the terms of this delegation or contract, may "pass on" their responsibilities and any liability in negligence to the real estate property manager in which case the real estate property manager may become liable for the incident and any injury and associated losses rather than the landlord of the residential premises. 

If it is established that had the landlord and the real estate property manager exercised reasonable skill and care and taken precautions that would have avoided your incident and injury, the landlord and the real estate property manager will, in most instances, be found negligent and be liable for your injuries and consequent loss. If, however, it is established by the landlord successfully "delegated"  responsibility to the real estate managing agent than the real estate managing agent will be found liable  and the landlord will not be held liable. This means you will recover the same amount of compensation that you would have recovered both the landlord and the real estate property manager only from the real estate property manager.  The amount of compensation that you recover is not affected by the number of defendants you have to your claim [i.e. whether it is 1 defendant or 20, you will still be entitled to the same amount].

Examples of compensable incidents on residential premises or rental accommodation

Examples of preventable causes of incidents sustained on residential premises or rental accommodation include:

• improperly positioned or missing floor mats at entrances and exits to the residential or rented premises.

• slippery floors from leaks and spills, such leaking roofs or gutters etc.

• stairway or walk way obstructions from things left by which can act as tripping hazards.

• cracked and uneven floor surfaces or pavements.

• defective or improperly constructed premises, which can include steps or stairwells not containing handrails or stair “nosing’s” etc.

• inherently slippery floor surfaces due to wear and tear and lack of maintenance or installation of an inappropriate floor surface in the first place.

• deterioration of parts of the residential or rental premises due to lack of maintenance, such as balcony or balustrade collapses etc.

• improperly constructed premises.

• unidentified or not highlighted tripping or slipping hazards, such as height differentials.

• inadequate illumination [i.e. lighting].

What should I do after an incident and injury at a residential premises or rental accommodation?

It is important that you do following at the time or as soon as possible after your incident at residential premises or rental accommodation: 

• focus on your injury

Seek first aid, if necessary even a minor injury can become a lifelong condition without proper initial medical treatment.

Request for an ambulance to be called or attend an emergency department, if necessary. 

Contemporaneous evidence of the site of the incident location, circumstances and your incident and injuries will provide invaluable assistance to the preparation of your public liability compensation claim. You can never have too much evidence, and if ever in doubt it is better to take a photo or make a record of it.

• obtain photographs or video of the hazard before it is removed or repaired.

• get the names and contact details of any witnesses to your incident

If anyone witnessed your incident, you should speak to them and get their name and contact details.

An independent and “unbiased” version of events from a person or persons who witnessed your incident and how it occurred, but who have no interest in your compensation claim will be of great assistance to your claim and collaborating your evidence and version of events.

• report your incident

You must tell the homeowner or occupier of the residential premises or rental accommodation where your incident occurred and what caused your incident and your injury. It is best to report your incident in writing so that there is a paper trail.

In circumstances where the incident occurred on rental accommodation, the incident should be reported to the landlord or real estate property manager who is responsible for the property, as well as the occupier of that property.

Request that an "incident report" be completed and request a copy for your records.

The question of who is to blame for your incident is best avoided at this stage. Even if you blame yourself, or if the person you report the incident to blames you for the incident, this does not mean that you do not have a claim for compensation.

• Take photos and video of the area of your incident and of what caused your incident

The brain is evidence of the site at the incident location, circumstances and your incident and injuries will provide invaluable assistance to the preparation of your public liability claim. You never have too much evidence, and if ever in doubt it is better to take a photo or make a record of it.

 - Example

If you sustained an injury to your left knee, because your leg went through a rotten outdoor deck when you were visiting your friend's house for a barbecue you should take as many photographs or videos of the area of the deck involved in your incident, as well as any other areas showing the condition of the deck, as well as some photographs or videos from a distance so that one could get a general idea of the layout of the surroundings to your incident. You should also take a photograph or a video of your injuries.

• locate any prior complaints made to the homeowner or occupier or landlord or real estate property manager 

If you made prior complaints about the defect or hazard that caused your injury either to the homeowner or occupier or landlord or real estate property manager then locate these complaints and put them into a chronological order [i.e. a time line]. This will be invaluable evidence in demonstrating that requisite knowledge of the defect or hazard prior to your incident and failed act and take appropriate precautions in response to the defect or hazard.

If your injury occurred at your friend's rental house for example  make enquires with your friend as to whether he or she made any relevant prior complaints to the landlord or the real estate property manager, and, if they have, request a copy of their complaints [i.e. emails or letters or text messages].

• make your own record of the circumstances of your incident as well as of all your symptoms

It is important that you record the events of your incident as soon as possible after your incident [i.e. what happened]. It is, also, important that you keep an up to date list of all your symptoms, whether on paper, computer or your smartphone.

Treatment providers do not often record all of your symptoms and complaints and often concentrate on what is serious at the time of the consultation. The passage of time can make what seemed like a minor injury in the initial post incident period a long-term debilitating condition. If there is no record of such injury or associated symptoms in your treating clinical notes, it will be difficult to attribute this injury to the incident. In the alternative, you can record video footage of you discussing your symptoms.

• go to your general practitioner or hospital or other treatment providers

You may have already been to see your general practitioner or received hospital treatment, however, you need to listen to your body and attend on your general practitioner or hospital or psychologist or other treatment providers as many times as you think fit. This is important,  if for example, you only sought medical treatment once, the defendant or insurer to your claim will argue that you do not suffer from any ongoing problems or disabilities, because if you did you would have sought more frequent medical treatment.

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