ASSAF v KOSTREVSKI; SALEH v KOSTREVSKI [1998] NSWCA 274

ASSAF v KOSTREVSKI; SALEH v KOSTREVSKI SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MASON P, PRIESTLEY JA and SHEPPARD AJA 15 July, 30 September 1998 [1998] NSWCA 274

Negligence — duty of care — personal injury — leased premises — injury to persons visiting tenant — whether duty of care owed by landlord to ensure safety of premises — causation — whether actions of injured persons were a reasonably foreseeable response to risk created by landlord

Mrs Ihssan Assaf and Mrs Rafika Saleh (the appellants) each suffered electric shock and other injuries at premises leased by Mrs Gail Saleh ('the tenant"). The first respondents ("the owners") were the owners of the house and the second respondent ("the agent") was the estate agent responsible for leasing the premises. The premises were unfurnished and dilapidated. The only toilet in the premises was located at the back of the house within the laundry.

As soon as Mrs Rafika Saleh and the tenant moved into the premises it became apparent to them that the ceiling light in the laundry was defective. One or both of them went to see the agent's representative, Mr Apostolovski who inspected the premises and suggested that they use an extension light. Either the tenant or Mrs Rafika Saleh then rigged up a light consisting of a bulb in a socket which was in turn connected to an extension lead. Mrs Assaf suffered electric shock while attempting to connect two parts of the extension light. Mrs Rafika Saleh rushed to her aid and was also injured.

Judge Newton held that the appellants were not entitled to recover against the owners on the basis that they owed no duty of care to the appellants, applying Cavalier v Pope [1906] AC 428. His Honour emphasised that the premises were let dilapidated and specifically on the basis that the tenant would take the premises as she found them. The appellant's claim against the agent was also rejected on the basis that the agent had made it perfectly clear to the tenant and to Mrs Rafika Saleh that the owners would not spend any moneys on the premises. Although Mr Apostolovski had suggested the use of a long lead, he had not held himself out to be an electrician or to have any such expertise.