You need some work done to your home. You call a tradesman. He comes and gets started on the work. Everything seems to be going well. All of a sudden, the worst imaginable happens… the tradesman falls off the deck. He sustains serious injuries as a result of the fall of some five metres from the balcony. He sues you, the home owner.
This is what occurred in the case of Palmer v Finnigan. Bryan Palmer was at the home of Russell and Jessica Finnigan on the Gold Coast, to dye their carpet. At the completion of the work, he was passing a hose to the ground floor from a balcony on the first floor, when a balustrade collapsed as he leant against it for support.
Palmer sued the Finnigans in negligence. Among other things, he said the Finnigans failed to inspect the balcony railing and ensure it was safe. He lost.
Did the Finnigans have to search their home for hidden defects?
It is well established in Australia that occupiers have an obligation to take reasonable care to avoid the risk of foreseeable injury to a person on their premises.
The Court ultimately held that there was not any legal obligation on the Finnigans to investigate hidden defects. On that basis, there was no duty to effect repairs, or to obtain a safety expert’s opinion as to the structural integrity of the balcony railing when there was no warning that there was a possible defect in the balustrade.
In a NSW decision of Baker v Gilbert, the Court held that it is only when an occupier knows or ought to know of the existence of a defect that the obligation to make repair is enlivened.
It would seem therefore, that it is only in circumstances where there are indications that something might be amiss such that they constitute “ample warnings” that the obligation to repair arises.
It is worthy to note however that what is reasonable, of course, will vary with the circumstances of the entry onto the premises. The circumstances may well require, by way of reasonable response, an inspection of the property, and a removal or repair of the defect.