Residential Occupier not Liable


Residential Occupier not Liable

On 10 December 2015, the High Court refused the plaintiff special leave to appeal the decision of New South Wales Court of Appeal in Christine Fabre v Bonny Lai Chun Lui  [2015] HCASL 230. The judgment obtained by Hunt & Hunt for the occupier at first instance and upheld in the New South Wales Court of Appeal stands. Read our article on the decision of the Court of Appeal.

The High Court elected not to disturb the findings of the Court of Appeal, commenting that there was “no need to doubt the conclusion of the Court of Appeal” whose findings related to interpretation of breach of duty and section 5B of the Civil Liability Act 2002 (NSW).

The appeal related to the extent of the duty owed by domestic occupiers to ensure that repairs would be properly carried out. Depending upon the nature of the repairs, it is clear that there is no need for a domestic occupier to exhaustively investigate the expertise of tradespeople hired.

For example, as was the case here, where a kitchen range hood is simply fitted and plugged in, it was sufficient for the occupier to rely upon a tradesperson who advertised locally, attended with the new range hood and fitted it. Even though that fitting was negligent, that related to the responsibility of the tradesperson, not the occupier.

Of factual relevance in Fabre v Lui, the defective fitting was not easily identified, the rangehood stayed in place for three years and there was no evidence of a defect that could be detected on reasonable inspection during that time.

That the High Court has refused to disturb the findings of the Court of Appeal provides much-needed certainty to domestic occupiers and their insurers.