Potter v Yeung & Anor

"Mr Dimopoulos said, and I accept, that had the stairs had some form of tread or slip-resistant material, that would likely have reduced the risk of slipping."

Case: Potter v Yeung & Anor

Date of Judgement: 24 January 2019

Court (Location): County Court of Victoria

Expert (for the Plaintiff): John Dimopoulos, forensic engineer, Dohrmann Consulting

Solicitors: Arnold Thomas & Becker (Plaintiff); Mills Oakley (First defendant) and Moray & Agnew (Second defendant)

Legal Matter: Claim for damages by tenant against landlord and managing real estate agent as a result of injury suffered when ascending stairs at rented residential premises.

Court Decision: Plaintiff was awarded $209,097.05

Extracts from Judge O'Neill's comments in relation to evidence provided by expert witness forensic engineer Mr John Dimopoulos.

Paragraph 40: Evidence was given by Mr John Dimopoulos, a mechanical engineer. He provided a report of 11 July 2018.[26] He did not inspect the premises, but was provided with a number of photographs, including exhibits A and B.

Paragraph 46: In 1983, the Uniform Building Regulations were amended so that the requirement to have handrails on stairways was removed. This continued until 2012 under the Building Code of Australia (“the Code”), which revoked the requirement there be a handrail on the stairway when the stairway was less than a metre in height. Mr Dimopoulos said the rear steps in this proceeding were under 1 metre.

Paragraph 50: In cross-examination, Mr Dimopoulos accepted that in considering the various building regulations, much depended upon the date of construction of the premises. There was nothing to require premises to be brought up to date with a current Code. Mr Dimopoulos was not challenged in cross-examination as to his opinion that it appeared from the photographs the stairs were slippery.

Paragraph 85: The evidence of Mr Dimopoulos, the engineer, was of some assistance. His examination of the various Building Regulations and Codes which applied over the years did not assist as no one could determine the age of the property and, therefore, which Regulations or Code applied. Once constructed, there was no obligation on Mr Yeung to ensure the stairs complied with the Codes as they came into force from time to time.[41]

Paragraph 86: Mr Dimopoulos did not inspect the property, but rather worked from the photographs provided. In any event, an inspection of the property would have revealed little, given the stairs were replaced with four (instead of three) stairs and a balustrade; however, even given the difficulty in assessing the condition of the steps from photographs, I do accept his evidence that given the apparent age of the steps, and the fact they did not contain any non-slip or tread material, that they were worn and slippery, in particular when wet.

Paragraph 87: The fact that the lower stair had become loose from the structure and was sitting on the ground was a clear indicator that the stairs had fallen into disrepair, requiring maintenance. Mr Dimopoulos said, and I accept, that had the stairs had some form of tread or slip-resistant material, that would likely have reduced the risk of slipping.[42] Had the stairs been inspected at the start of Ms Potter’s Lease by someone concerned to ensure they were safe for everyday (or night) use, I have little doubt such an inspection would have revealed the slippery and worn surface of the steps, the fact that the light was not working, and considered the provision of a handrail to assist.

Paragraph 131: Mr Madder submitted that the managing agent would rarely, if ever, be an occupier of the premises and therefore did not have the same degree of control over the premises or of maintenance and repairs to be carried out, as would the owner. He said Santosa’s duty was limited to certain management tasks in respect of the property. It did not include carrying out, for example, a safety audit (as was suggested by Mr Dimopoulos).

Full court report can be accessed via the Australasian Legal Institute - Potter v Yeung & Anor.

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