Arthur Koumoukelis and Chrysanthi Kalamvokis

An Operator’s obligation not to interfere with the reasonable peace, comfort and privacy of a resident

Arthur Koumoukelis and Chrysanthi Kalamvokis

May 11, 2020

Aged Care Retirement Villages

A recent NSW Tribunal case* looked at a resident’s claim for compensation for interference with the resident’s ‘reasonable peace, comfort and privacy’ because of redevelopment works undertaken in the Village.

The decision handed down on 4 May 2020, is important as the operator was successful in resisting the claim and in giving its decision, the Tribunal considered and provided guidance on the legal effect and proof required to explain what is meant by the words ‘interfere… with the reasonable peace, comfort or privacy of a resident’ that are used in the Retirement Village Act 1999 (NSW) (RV Act).

The Tribunal considered what the obligations are so as ‘not to interfere or cause to permit interference with the reasonable peace, comfort and privacy of a resident’ and what actions can be taken to defend such a claim.

In this case, the operator had commenced work to expand its adjoining aged care facility. This involved heavy earth works and major construction in and around the Village.

As a result of the construction work, the resident claimed that the operator had breached their right to reasonable peace, comfort and privacy because of noise, traffic, dirt, loss of privacy and reduction of services.  The resident sought orders for a sizable sum in compensation for breach of contract under the Act because of the interference, comprised of a reduction of recurrent charges, loss of amenity and general damages.

In its defence, the operator explained what it had done to mitigate any disturbance and interference to the resident.

The significance of the Tribunal case centres on the presiding Member’s considerations of what constitutes interfering with a resident’s reasonable peace, comfort and privacy.

Importantly, Member Ringrose accepted the operator’s arguments that the concept should be read similar to the way the concept is read in commercial and residential leasing namely that it is a reference[at 81] “to a tenant’s right to use the premises leased to them without unreasonable interference.”.  That is, it is not a standard related to ‘any’ interference but must be measured against standards of reasonableness.

Through this analysis, Member Ringrose agreed with the operator’s reliance upon Supreme Court cases explaining the principle to be followed and establishing the operator had not breached its obligation.

Ultimately the Tribunal said that in deciding if an operator had interfered or caused or permitted interference with the reasonable peace comfort or privacy of a resident, the evidence must show the interference was significant and that loss was in fact suffered.

Based on the facts of this case, the standard was not met and the application was dismissed.

Thomson Geer acted for the Operator.

Contact

Please do not hesitate to contact a member of our national Health, Aged Care and Retirement Villages team for further information.

*Bell v The Frank Whiddon Masonic Homes of NSW [2020] NSWCATCD [4 May 2020]