Tenant threatening to sue for falling in the yard!

[vincenzo]

Find a new PM, someone that is shocked at what is going on.

After the new PM, get some new tenants aswell.

And of course, the new PM can make sure the house and garden is brought back up to scratch, or the old tenants don't get thier bond.

I hope you can get that electricity money back that the PM decided on
I don't think there's anything wrong with the landlord paying for stuff like gardening maintenance or electricity, as long as it's priced into the rent! The PM is meant to be managing your property for you, in exactly the way you want it - Don't forget, you are thier boss, they are your contractor.

 

[JDM]

Just thought i would add the statutory limitaiton for them to bring an action in negligence relating to a personal injury is 3 years from when the cause of action occured, not 6 as stated. 6 years applies to torts not relating to person injury.

Qld & NSW legislation - Believe the same applies for the other states as well.
- Limitations of Actions Act 1974 (Qld) s11(1)
- Limitation Act 1969 (NSW) s18A(2)

 

[jrc]

just remember you and your agent ahve not made any agreement with the injured person so the arrangement will be disregarded completely by a court

 

[cadence]

hi RedPanda

As owner of the premises, you are required by law to ensure the premises are reasonably safe. You owe this duty to all people who legally enter onto the property. This is a very wishy washy standard and is open to different interpretation.

In NSW, before a person can sue for personal injury, she has to prove she suffered an injury which is 15% of a most extreme case (the most extreme case being brain dead and quadriplegic). A fractured shoulder is probably 25-30%. A fall which results in no ongoing injury is unlikely to satisfy this threshold.

Assuming you have landlord insurance, you should be covered for any public liability/personal injury claims.

If the lady sues you, you lodge a claim with your insurer and pay the excess and your insurer should take over conduct of the proceedings.

Generally, your landlord insurance should cover you for public liability claims of up to $10million (which is more than sufficient for this case by the sounds of things).

There is always a question as to whether the lady really meant to sue you or just wanted to threaten you. If she did sustain a relatively serious injury and incurred medical expenses, I think it's not a bad idea for you to resolve this out of court for 6 months of electricity bills. Judges in lower courts can be pro-Plaintiff especially when the Defendant is a big insurance company.

The only thing I would raise is when your PM negotatiated with her to waive the electricity bills so she doesnt sue you, was it just a verbal informal agreement? If so, what if she comes back in a year time to threaten you again? She has about 3 years to commence proceedings.

I would personally ask the PM to execute a document 'Deed of Release' which formally releases you from any future claim arising out of this incident in return for your waiver of the electricity bills. That kind of document if properly drafted will hold up in court.

Obviously, if you dont believe there was an injury or she was serious about suing you, I wouldn't bother with all of this.

None of this constitues legal advice in any way. These are my personal comments only and you should get independent legal advice if you wish to explore this further.

Good luck. I hope it all goes away for you!

Cheers
Jigglypuff

 

[jaycee]

hi RedPanda
In NSW, before a person can sue for personal injury, she has to prove she suffered an injury which is 15% of a most extreme case (the most extreme case being brain dead and quadriplegic). A fractured shoulder is probably 25-30%. A fall which results in no ongoing injury is unlikely to satisfy this threshold.

This is what I've been wondering, what were the injuries ?

 

[Dazz]

you are required by law to......duty to all people who legally....sue for personal injury....public liability/personal injury claims... lady sues....lodge a claim...sue....threaten you....resolve this out of court....Judges in lower courts....pro-Plaintiff.....Defendant....negotatiated with her to waive.....so she doesnt sue you....3 years to commence proceedings....execute a document 'Deed of Release'....formally releases....any future claim....document if properly drafted will hold up in court.


None of this constitues legal advice in any way.

Exactly jigglypuff. I could of sworn (legally) by the language you were using you were talking about directions on how to make tasty ham sandwiches, or the mating rituals of African rhinos.

At no point, as you say, in any way, during reading your post, did it ever occur to me you were giving legal advice.

Phew - you're off the hook mate. No liability incurred. Well done. BTW - what's a constitues ??

 

[tubs]

I like the first bit of advice. Tell your insurer.

Not sure why you'd tell your insurer and then go ahead and try and fix it yourself.

Kinda contradictory if you ask me.

Why not tell the insurer and...
...let them sort the mess out.

Oh, and ditch the PM while you're at it.
Straight away.
You don't want to be telling the lawyers how they acted very stupidly on your behalf, but you still wanted them looking after your property.

 

[cadence]

Hi RedPanda

I think I agree with a lot of the comments here that you should get a new PM if possible.

I think he folded so quickly because he was worried that his agent might get roped into the law suit. This seems very selfish of him (even though we all like to protect ourselves), but he has obligations to you under the management agreement and that was quite out of line the way he made the deal without your consent.

Regardless of what happens, I think you have a good case of getting the PM to reimburse you for the electricity bills you end up paying for.

Good luck!

Cheers
Jigglypuff

 

[Perp]

you can only be sued if it was proven that you were aware of the problem beforehand and did nothing about it.

Not so much. Proving liability does not require that the property owner know about the specific risk.

Thanks, TF, you had the same thought as me. I don't know where the misconception that lizzie repeats originates from. Perhaps a sense of fair play? Which, as Peterw highlights, would apply to a justice system, but not a legal system (and we definitely have the latter).

If the landlord has contracted something and given a responsibility to the agent to maintain something, e.g. mowing of lawns every month. And the yardsman fails to turn up for a few days because of his personal reasons and a mishap happens. Does the responsibility fall

A. On the landlord, as it is his property. Tenant can sue the landlord and landlord can sue agent for his incompetence.
B. On the Agent, as that's what agent has been hired for and contracted for.

I think the answer is A. But are there cases or situations where B might be true?

My understanding is that the answer would be A. I can't imagine how it culd be B, because the Agent has no duty towards the tenant.

 

[cadence]

If the landlord contracts the mower and did not know the mower never turned up (eg the agreement was the mower just shows up and does the lawn and the tenat notifies the landlord if the mower fails to show), then the landlord can hardly be held liable.

If tenant told landlord the mower did not show on Saturday and the mower told landlord he would do the work on Monday, if someone falls on Saturday night, then its arguable landlord was not liable because he has done enough and what is reasonable in the situation.

In many situations, leaving it for a week should be fine, but if say there was heavy rain in the area and the landlord knows the grass is a type that grows very quickly, there could be arguments that the landlord should have done more (eg by getting someone else to do it) if one was to weigh up the potential risk of injury.

There are so many factors at play here it's never a black and white situation. I think best thing you can do is try to minimise your own exposure from the start. If you plan to get an agent on board, get them to arrange things for you. You can tell them where to go and who to call, but have them make the contact and agreement to do the work. They are required to take instructions from you but they also have professional obligations to ensure they engage competent contractors.

The landlord or the agent may also be able to pass liability onto the contractor in some situations. There is a line of thought which says if you engage a competent contractor to do the work and the work was not done properly causing injury, then the contractor should be held liable.

 

[kathryn d]

Another few questions:
How old was the woman who fell.
What are her injuries, and how does that affect your tenants, by giving them a break on their electricity.
Is walking for her difficult anyways, especially on any surface other than a floor or pavment.
Is she prone to accidents.
Are these tenants having financial problems.(this is why ours tried to sue)
How long have they been your tenants?
Have they been asking to break lease, or concerned you may raise the rent?

The first question the lawyer for our tenants was: who is your insurance company. Never Again !!!
We were much more naive then.

 

[vincenzo]

Lets pretend that there was a hole in the backyard, when the tenants moved in.

What about stairs, or any other obstacle on the property?

Giving in to a ridiculous claim like this, will only invite more bs claims.
Before long, every time grandma visits, the tenants are gonna end up with either free gas, phone, grocery or petrol!

 

[kathryn d]

Lets pretend that there was a hole in the backyard, when the tenants moved in.

What about stairs, or any other obstacle on the property?

Giving in to a ridiculous claim like this, will only invite more bs claims.
Before long, every time grandma visits, the tenants are gonna end up with either free gas, phone, grocery or petrol!

I agree there was most likely a hole or depression in the lawn.
Most all lawns have these.
Are there children living on the property. Maybe they left a small toy in the grass?

You start offering to pay tenants..or worse, your PM starts offering to pay, where does it stop?

 

[Perp]

If the landlord contracts the mower and did not know the mower never turned up (eg the agreement was the mower just shows up and does the lawn and the tenat notifies the landlord if the mower fails to show), then the landlord can hardly be held liable.

Wow, that old chestnut showing up again so soon after TF and I tried to suppress it!

Not so much. Proving liability does not require that the property owner know about the specific risk.

My understanding is that whether the landlord knew of the risk, and whether or not they acted reasonably, are not really relevant as to whether you've fulfilled your duty of care. You've either fulfilled your duty of care or you haven't; my understanding was that an intention to fulfil your duty of care really doesn't count for much.

Are you a lawyer, or can you provide a reference for your assertion that just booking the mower man is sufficient to satisfy duty of care?

If you'd actually mowed the lawn and filled the hole but the tenant still tripped, then you could possibly argue that you'd done everything you could to fulfil your duty of care. But I would have thought the fact that you had arranged for somebody to come and fix it later would be irrelevant.

Lets pretend that there was a hole in the backyard, when the tenants moved in.

What about stairs, or any other obstacle on the property?

All these things are potential sources of liability, and that's why we have public liability insurance. The PM, in this instance, was absolutely 100% wrong in agreeing to provide the free electricity, for all the reasons highlighted.

Oh, and ditch the PM while you're at it.
Straight away.
You don't want to be telling the lawyers how they acted very stupidly on your behalf, but you still wanted them looking after your property.

Too right!