The Legislation
The Australian Competition & Consumer Commission (“ACCC”) identified a major hazard with loop cord systems as young children face a risk of strangulation.
As a result the ACCC issued Mandatory Standards known as The Trade Practices (Consumer Product Safety Standard – Corded Internal Window Coverings) Regulations 2010 (“The Trade Practices Mandatory Safety Standards”) which regulate the design, construction and labeling of corded window furnishings.
From 1 July 2011 all suppliers, including lessors, must comply with The Trade Practices Mandatory Safety Standards in relation to any corded window covering such as Vertical, Venetian, Holland and Roman Blinds and Curtains (including pencil pleat “ready mades” and pencil pleat tape) and any fitting containing cords, such as Curtain Rods and Tracks.
Landlord Obligations
You should be aware that a breach of The Trade Practices Mandatory Safety Standards carries penalties of up to $220, 000 for individuals and $1.1Million for companies, as well as the risk of compensation claims.Also, as an Owner of the property you have a duty of care at common law which may expose you to litigation should a foreseeable injury occur as result of you failing to take simple steps to remove or reduce the risk of harm.
Landlords are responsible for ensuring that the property and the products they provide work effectively and safely and that products come with instructions and safety information where necessary. This includes window coverings with cords.
The new mandatory standards set by the ACCC apply to “suppliers”. A “supplier” includes anyone in the business of leasing the goods. So as a Lessor, you are legally responsible for ensuring that the corded window furnishings you “supply” meet the mandatory safety standards.
The new mandatory standards set by the ACCC make it clear that window furnishings with looped cords of 220mm or greater that hang at or lower than 1600mm from the floor pose a risk of strangulation to an infant or young child. It follows that if the ACCC foresee the risk and regulate by prescribing new mandatory standards that a reasonable man should also foresee those risks.
Even if the Tenants have no children, it is reasonably foreseeable that they might have children visit the home from time to time.
Additionally, the obligations on the Owner set out in the Residential Tenancies Rooming Accommodation Act are reflected in the Standard General Tenancy Agreements.
So an Owner will be in breach of the RTRA Act and in breach of contract by failing to repair window coverings or providing window coverings that do not comply with health and safety regulations provided that the window coverings are part of the premises,( known as fixtures), or an inclusion.
Insurance policies vary, but most have an exclusion clause that means that the insurance company does not have to pay out where the Owner breaks the law or is aware of the problem and chooses not to act to reduce the risks of harm.
Leaving aside any question of legal liability, what Owner would want to risk the life of a child and live with the knowledge that a tragedy could have been so simply avoided?