Gentle v Wright - [2021] WADC 63

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   GENTLE -v- WRIGHT [2021] WADC 63
CORAM:   TROY DCJ
HEARD:   22 & 23 DECEMBER 2020, 22 MARCH & 30 APRIL 2021 AND WRITTEN SUBMISSIONS RECEIVED ON 14 & 27 MAY 2021
DELIVERED          :   25 JUNE 2021
FILE NO/S:   CIV 2844 of 2017
BETWEEN:   KATRINA GAY GENTLE
Plaintiff
AND
CRAIG STEPHENSON WRIGHT
Defendant

Catchwords:

Torts - Negligence - Duty of care - Occupiers' liability - Fall down steps - Turns on its own facts

Legislation:

Civil Liability Act 2002 (WA)
Occupiers' Liability Act 1985 (WA)

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff	:	Mr A A Nolan
Defendant	:	Mr N F Morrissey

Solicitors:

Plaintiff	:	Simon Walters
Defendant	:	DWL Legal

Case(s) referred to in decision(s):

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
Ahluwalia v Robinson [2003] NSWCA 175
Avopiling Pty Ltd v Bosevski [2018] NSWCA 146
Department of Housing and Works v Smith [No 2]; (2010) 41 WAR 217; [2010] WASCA 25
Evans and Braddock [2015] NSWSC 249
Jones v Bartlett (2000) 205 CLR 166
Marsh v Baxter [2015] WASCA 169
Neindorf v Junkovic (2005) 80 ALJR 341
Nikolich v Webb [2019] WADC 58
Nikolich v Webb [2020] WASCA 169
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Sakoua v Williams [2005] NSWCA 405
Strong v Woolworths Ltd t/as Big W [2012] HCA 5; (2012) 86 ALJR 267
Taylor v Fisher [2018] WASCA 126
Vairy v Wyong Shire Council (2005) 223 CLR 422
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

TROY DCJ:

Introduction

Shortly before dawn on 15 April 2016 the plaintiff, Ms Katrina Gentle, made her way down a concrete stairway at the front of residential premises in Ocean Reef that she rented from the defendant, Mr Craig Wright. Approximately two thirds of the way down, she slipped, she contends on a damaged brick paver on the edge of a landing, and fell to the footpath at the bottom. She suffered a fracture to her left femur and soft tissue injuries to her thoracic spine. Despite multiple surgeries she continues to experience ongoing pain and discomfort. Ms Gentle asserts that Mr Wright is liable for her injuries, because the cause of her fall was the broken brick. Her son, Jaxon Milner, testified that Ms Gentle fell as a result of a defective brick, despite exercising considerable caution. Ms Gentle's case is that Mr Wright should have repaired the defective step.
The front of the house with the flight of steps is as set out in exhibit 1[1] (page 69 of plaintiff's book of documents):

[1] Jaxon Milner took the photographs about a month after the accident; ts 125.

As can be seen from exhibit 2.1 (page 70 of plaintiff's book of documents) there are two individual bricks which show signs of corrosion or damage, namely the brick that is fifth from the left at the edge of the final landing before the bottom of the steps. This appears to be the brick that Ms Gentle considers to be the brick that caused her fall. Secondly the brick in the penultimate step from the bottom of the steps as a whole, ninth from the left.

Exhibit 2.3 (page 72 of plaintiff's book of documents) shows a close-up photograph of these two bricks as circled during the trial.

Exhibit 2.2 (page 71 of plaintiff's book of documents) shows the brick that is fifth from the left at the edge of the final landing from the perspective of a person walking down the steps.

Exhibit 2.6 (page 76 of plaintiff's book of documents) shows a close‑up photograph of that brick.

Exhibit 2.8 (page 78 of plaintiff's book of documents) shows a close‑up photograph of that brick which reveals the extent to which its outer edge is missing.

Ms Gentle no longer presses the claim that Mr Wright should have warned her about the hazard that the steps posed.[2] That was, it seems to me, an appropriate concession. It is difficult to see what effect a warning notice would have had, given Ms Gentle's evidence that she knew of the defect and cautiously progressed down the steps as a consequence.[3]
[2] Paragraph 7 of Ms Gentle's closing submissions.
[3] Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 [54] (Brennan CJ).
Ms Gentle gave evidence that on a number of occasions prior to 5 April 2016 she had complained to Mr Wright about this problem. Mr Wright and his partner Ms Rion Danker dispute this.
Mr Wright purchased this property in late 2013. As of 15 April 2016 Ms Gentle had been renting it for about nine months. Ms Danker was the informal property manager. Ms Gentle and her son, Jaxon, gave evidence, as did Mr Wright and Ms Danker. Each of the parties also called medical evidence.
The proper resolution of an action in negligence depends on the existence and scope of the relevant duty of care.[4] Mr Wright accepts that, as the landlord, he owed a duty of care to Ms Gentle, both at common law and under the Occupiers' Liability Act 1985 (WA) (the OLA).
[4] Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 [18] (Gummow J) (Dederer).

The plaintiff's case

By reference to the formal pleadings, as pressed at trial, Ms Gentle asserts that Mr Wright failed to act on an adequate procedure involving inspection and maintenance of the premises to ensure it was safe for her.[5] Put another way, Mr Wright failed to take reasonable precautions to ensure that she would not suffer injury or damage.[6]
[5] Paragraph 5(a) of the statement of claim.
[6] Paragraph 5(b) of the statement of claim.
Essentially, Ms Gentle sues for damages on the basis that the steps constituted a danger, posed a reasonably foreseeable risk of injury and required a response from Mr Wright.
Ms Gentle must establish that there was a defect in the steps. She must further establish that Mr Wright was aware of this problem or, alternatively, he should have been. She must also establish that she fell down these steps because of a gap in the brickwork of one of the steps. She must further establish that there was a foreseeable risk of harm that was not insignificant. She must establish that a person who was aware of this defect would have taken remedial action. She must show that Mr Wright's breach of duty (if any) was causative of her injuries.

The defendant's case

Mr Wright gave evidence that he was not made aware that Ms Gentle attributed her fall to any structural issue with the steps at the premises until he received the writ of summons in this action.[7] Ms Gentle made no such complaint to him, or Ms Danker. On a number of occasions Ms Gentle contacted him to raise general maintenance concerns, which he dealt with. But she never raised any difficulty in respect of the steps. Even when she communicated with him about other matters, seven months after her accident, and just after she had moved out of the premises, she made no reference to her fall. Nor did she express any concerns about the steps.
[7] ts 257.
Mr Wright asserts that in any event the available evidence is that the stairs were in a good state of repair as of 15 April 2016. He contends that a maintenance inspection was carried out prior to Ms Gentle's tenancy and the front steps were not identified as a hazard. They were not in need of repair. These were an unremarkable set of brick steps, largely indistinguishable from steps one might encounter anywhere in the world. Inevitably they had minor imperfections.
Mr Wright suggests that Ms Gentle fell because she was rushing down the steps in darkness, looking to catch up with her 13-year-old son who was already at her car. They were setting off on a camping trip.
Whilst not disputing that he owed Ms Gentle a duty of care, Mr Wright denied that the steps were a danger, submitted that he had not breached his duty of care and said that the accident was caused by Ms Gentle's own carelessness.
If Ms Gentle was aware of any imperfections in the steps, but chose to walk down them, thus voluntarily assuming the risk, as a result of s 5(2) of the OLA no breach of Mr Wright's statutory duty arises.
If, contrary to the primary submissions, Mr Wright is found to be liable to Ms Gentle, there should be a substantial reduction for contributory negligence.
Quantum of damages has not been agreed.

Mr Wright's duty to Ms Gentle

The provisions of the Civil Liability Act 2002 (WA) (the CLA) apply when determining whether Mr Wright has breached his duty of care to Ms Gentle.
It is not the law that it is unnecessary to determine the correct interaction between the common law, the OLA and the CLA because the outcome of the case would not be affected by whatever principles or combination of principles were applicable.[8]
[8] Department of Housing and Works v Smith [No 2]; (2010) 41 WAR 217; [2010] WASCA 25 [53] - [54] (Buss JA) (Smith). In Nikolich v Webb [2020] WASCA 169the claim was pursued in terms of negligence under the common law, breach of an implied contractual duty and breach of a statutory duty of care under the OLA. The trial judge determined the claim in negligence, that being the focus of the trial. On appeal (at [34]) there was no challenge to that approach.
In considering the issue of duty, breach and causation, it is important to identify the proper starting point for the relevant inquiry. The correct approach is to commence a consideration of negligence by having regard to the CLA first and then the common law, even if there is little or no distinction to be drawn between them.[9]
[9] Adeels Palace Pty Ltd v Moubarak (2009)239 CLR 420 [11] (Adeels) as applied in Nikolich v Webb [2019] WADC 58 [79] (Quail DCJ).
Ms Gentle bears the onus of proving a breach of duty and must, therefore, prove, on the balance of probabilities, those matters set out in s 5B(1) of the CLA.
Mr Wright accepts that he owed a duty of care to Ms Gentle, both at common law and, given the fact that Ms Gentle was, as a tenant, a visitor, under the OLA.
All duties of care are to be discharged by the exercise of reasonable care. They do not impose a more stringent or onerous burden.[10]
[10] Dederer [43] (Gummow J).
Mr Wright's general common law duty of care was to prevent, insofar as was reasonably practicable, the foreseeable risk of injury or harm to Ms Gentle. I am required to ask myself whether a reasonable person in Mr Wright's position would have foreseen that his alleged conduct (in letting the premises with the steps in the condition that they were and/or failing to respond to the concerns raised by Ms Gentle) involved a risk of injury to Ms Gentle. If the answer is 'yes', then I must determine what a reasonable person would do by way of response to that risk.
This is the two-step process drawn from the seminal judgment of Mason J in Wyong Shire Council v Shirt.[11]
[11] Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 47.
The assessment of breach depends on the correct identification of the relevant risk of injury. Breach must be assessed prospectively and not retrospectively.[12]
[12] Dederer at [18].

Mr Wright's common law duty of care

The CLA does not modify or supplant the common law principles which determine whether a duty of care exists.[13] The CLA applies when determining whether Mr Wright has breached his duty of care to Ms Gentle. Ms Gentle bears the onus of proving a breach of duty and must prove on the balance of probabilities those matters set out in s 5B(1) of the CLA.
[13] Smith [77].
Section 5B(1) provides:
A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless -
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
Insofar as the requirement that the 'risk of harm' be not 'insignificant', it has been recognised that this imposes a slightly more demanding standard than the common law test: Marsh v Baxter.[14]
[14] Marsh v Baxter [2015] WASCA 169; (2015) 49 WAR 1 [714] (Newnes & Murphy JA).
Section 5B(2) of the CLA provides:
In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) -
(a)the probability that the harm would occur if care were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity that creates the risk of harm.
Ms Gentle's case is that given the condition of the steps, a risk of stumbling and falling was both foreseeable and not insignificant. There was a risk of a significant injury, as indeed occurred. So, Mr Wright's breach of duty causative of injury was the failure to inspect and detect such obvious or visible risks. Ms Gentle submits that there was a real likelihood of injury arising from the condition of the stairs and the injury could be serious, depending on the circumstances and where on the stairs a person might trip and fall. The stairs were comprised of hard, brick pavers. They were the only means of access at the front of the premises.
Mr Wright counters that any modest defects in the steps were clearly visible so that Ms Gentle, in using them, ought to have appreciated that a degree of care was required. The risks of falling were as obvious to Ms Gentle as to Mr Wright.
So the essential questions are whether Mr Wright knew or ought to have known there was a danger in the construction of the steps. Secondly, whether, in these circumstances he failed to take reasonable precautions to rectify that danger.

Statement of Issues

Having regard to the pleadings, the evidence, the submissions of the parties at trial, and the provisions of the CLA as well as the OLA, I am required to resolve the following issues:
1.What was the nature of the risk?
2.Were any structural issues in the steps warranting repair detected before Ms Gentle's tenancy commenced?
3.What was the condition of the steps as of 15 April 2016?
4.Were the steps in a defective state that went beyond merely being capable of causing injury so as to constitute a hazard to a person taking reasonable care for their own safety?
5.Did Ms Gentle report issues with the steps to Mr Wright or Ms Danker before 15 April 2016?
6.Had there been any prior incidents of tripping or slipping on the steps?
7.Did Ms Gentle have any knowledge of the imperfections before her fall?
8.If Ms Gentle did not communicate any such defect to Mr Wright, was there any basis for Mr Wright nonetheless to be aware of the defect?
9.Was there a foreseeable risk of harm that was not insignificant?
10.On the morning of her fall was Ms Gentle hurrying down the stairs in the dark?
11.What is the significance of Ms Gentle's account of her fall to some of the medical staff who treated her?
12.What is the significance of the fact that Ms Gentle continued to live at the premises with her son for some months after the fall and did not report the alleged hazard to Mr Wright or Ms Danker?
13.Are there other matters adversely impacting upon Ms Gentle's credibility?
14.If Mr Wright had known about the alleged defect what would have been a reasonable response to the risk that it posed?
15.Was Mr Wright's breach of duty (if any) causative of Ms Gentle's injuries?
16.Did Ms Gentle chose to walk down the steps, with knowledge of the defect, thereby voluntarily assuming the risk?
17.If Mr Wright is found to be liable to Ms Gentle, should there be a reduction for contributory negligence?
18.Quantum for damages if there is a finding of liability.

Issue (1) - What was the nature of the risk?

In formulating the risk of harm I must identify the 'true source of potential injury' as well as the 'general causal mechanism of the injury sustained'.[15] Proper articulation of the relevant risk of harm should be the norm whenever the CLA's provisions fall to be applied.[16]
[15] As noted in Avopiling Pty Ltd v Bosevski [2018] NSWCA 146 [43] (Payne JA) (citations omitted).
[16] Nikolich v Webb [2020] WASCA 169 [68] (Murphy, Beech & Vaughan JJA).
The plaintiff contends for the risk of Ms Gentle slipping or tripping on a loose brick on a flight of stairs, that formed the only means of access to and from the house she was renting, thereby falling and suffering significant injury.

Issue (2) - Were any structural issues in the steps warranting repair detected before Ms Gentle's tenancy commenced?

In considering the degree of care which must be taken, and the means by which a tenant may be injured, it must be borne in mind that ordinarily the landlord will surrender occupation of the premises to the tenant. Thus, the content of any duty is likely to be less than that owed by an owner-occupier who retains the ability to direct what is done upon, with and to the premises. Broadly, the content of the landlord's duty to the tenant will be conterminous with a requirement that the premises be reasonably fit for the purposes for which they are let, namely habitation as a domestic residence.[17]
[17] Jones v Bartlett (2000) 205 CLR 166 [171] (Gummow & Hayne JJ) (Jones v Bartlett).
I am satisfied on the evidence that the premises were in no relevantly different condition at the time of the accident as compared to the date when they were let to Ms Gentle.
The common law of Australia does not impose on a landlord an affirmative duty to conduct or procure a detailed inspection of every possible source of danger in the premises.[18]
[18] Jones v Bartlett [252] (Kirby J).
Whether it is reasonable to require an owner of the premises to have them inspected by an expert before letting depends upon the circumstances of the case. There is no answer which is of universal application. Deciding what the answer should be in a particular case involves a factual judgment as opposed to the imposition of a requirement of the law.[19]
[19] Jones v Bartlett [58] (Gleeson CJ).
Mr Wright gave evidence that he purchased the premises in late 2013[20] and lived there from approximately January 2015 until April 2015. He accepted in cross-examination that the stairway, between the time that he purchased the property and 15 April 2016 had not been modified, renovated or repaired.
[20] ts 258.
Mr Wright and Ms Danker's evidence was that while some of the edges on the front steps of the premises had corroded edges, they had not experienced problems with the steps while living at the premises themselves for several months prior to the Ms Gentle's tenancy. They did not consider the imperfections in some of the leading edges of the steps to be prospectively hazardous as to require repair.
Ms Danker gave evidence that she was familiar with the state of the premises before it was leased to Ms Gentle. Ms Danker completed a property condition report prior to the tenancy commencing.[21]
[21] ts 283.
Mr Wright accepted that the steps shown in the various photographs comprising exhibits 1, 2, 23 and 24 represented their condition at the times when he purchased the property, moved into and lived at the property, leased the property to Ms Gentle as well as when he and Ms Danker moved back into the property in 2020. He accepted that no maintenance or repairs were undertaken to the steps in the period between late 2013 and 15 April 2016. Ms Danker gave evidence to the same effect.
Mr Wright accepted[22] that the photographs as exhibited showed corrosion to the steps that Ms Gentle said caused her fall. He accepted, when pressed, that 'corroded' means 'damaged'. When it was suggested that the damage to the bricks was readily observable in exhibit 24, a photograph dated 23 January 2014, Mr Wright suggested[23] that the bricks and stairway looked worse in that photograph than when he had moved into the property in January 2015. This, despite Mr Wright's evidence, that no maintenance or repairs had been done to the stairway since his purchase. I accept that the condition of the steps could not have spontaneously improved. The bricks in the photographs taken after the accident are more discoloured than the bricks as shown in January 2014. That could conceivably mask the extent of the corrosion to the bricks, so as to give an impression that there was more damage in January 2014 than post‑April 2016. In any event, I accept Ms Danker's evidence that the steps, including the damaged bricks, were in the same condition on 23 January 2014 as on 15 April 2016.[24]
[22] ts 267.
[23] ts 280.
[24] ts 293 - ts 294.

I accept Ms Danker's evidence that the photograph in exhibit 2.1 accurately depicted the front steps of the premises as they would have been during Ms Gentle's tenancy and in the period when she was living at the premises in early 2015. I also accept her evidence that in the period that she was living in the house she often walked up and down the steps and did not note any issue with the steps.[25] I found Ms Danker to be a confident and persuasive witness.
[25] ts 285.
I have no difficulty in concluding that the condition of the steps was, for all intents and purposes, the same in 15 April 2016 as when Mr Wright purchased the property in late 2013. They had not been maintained or improved during that period.
Exhibit 20 is an independent and detailed (nine pages) property inspection report dated 5 February 2015. Page 1 records that the steps were clean and undamaged. The report records:
… steps up to the front red brown bricks. Intact.
There is no reference at all to any defect in the bricks of the steps. I am quite satisfied that neither Mr Wright nor Ms Danker detected any structural issues warranting repair before the tenancy commenced, but which they then ignored.

Issue (3) - What was the condition of the steps as of 15 April 2016?

Ms Gentle alleges as a matter of fact that the cause of her fall was the gap in one of the bricks. In describing her fall, Ms Gentle said that the gap or 'little bit' that she referred to was the broken edge that clipped the front of her right foot. She was unable to actually recall which exact step it was, but it was definitely after the first landing and closer to the bottom of the stairs.[26] Ms Gentle thought that the loose brick was towards the bottom of the steps.[27]
[26] ts 15.
[27] ts 47.
I am satisfied that two of the bricks towards the bottom of the steps had a slight gap at the front as shown in the photographs at [2] ‑ [7] above.

Issue (4) - Were the steps in a defective state that went beyond merely being capable of causing injury so as to constitute a hazard to a person taking reasonable care for their own safety?

In my view the short answer is, no. A landlord's duty to repair does not go beyond a requirement to address defects of which he or she was aware, or ought to be aware. 'Defect' in this context means something more than a condition capable of causing injury.[28]
[28] Sakoua v Williams [2005] NSWCA 405 [8] (Mason P) (Sakoua).
A dangerous defect is one which the landlord knows or ought to know make the premises unsafe for the use to which they are to be put.
A landlord's duty will be discharged if the landlord takes reasonable steps to ascertain the existence of any such defects and, once the landlord knows of any, takes reasonable steps to remove them or to make the premises safe.
This does not amount to a proposition that the ordinary use of the premises for the purpose for which they are let must not cause injury; it is that the landlord has acted in a manner reasonably to remove the risks.[29]
[29] Jones v Bartlett [173].
One example of a dangerous defect are stairs that cannot bear the weight of a person.[30]
[30] Jones v Bartlett [176].
A dangerous defect will, or may, cause injury to persons using the premises in an ordinary way. They are defects in the sense that they are more than dangerous; they are dangerous in a way not expected by their normal use.[31]
[31] Jones v Bartlett [178].
The question to be decided is not whether the steps were reasonably safe for the purposes for which they were to be put. Nor does the 'obviousness' of the dangers identified provide a basis for liability. The fact (if established) that the stairs could have been safer is not to be equated with proof of unreasonable want of care with respect to defects at the inception of the letting.[32]
[32] Sakoua [22] - [24].
All stairs are inherently dangerous. No stairs are perfectly safe. It is wrong to suggest that a plaintiff who is injured by falling on stairs has prima facie some cause of action. That inherent danger is accentuated if traversed by users who fail to some degree to take reasonable care for their own safety.[33]
[33] Sakoua [26].
As Gleeson CJ observed in Neindorf v Junkovic:[34] 'Very few occupiers keep their land in perfect repair.' People are permitted to occupy, and some people can only afford to occupy, premises that are in a state of some disrepair. Legislation has never gone to the point of requiring people to remove all potential hazards from their land. It would not be possible to comply with such a requirement.
[34] Neindorf v Junkovic (2005) 80 ALJR 341 [4] - [8].
Not all people live, or can afford to live, in premises that are completely free of hazards. In fact, nobody lives in premises that are risk-free. Unpaved surfaces become slippery, or uneven. Occupiers of dwelling houses may have differing capacities to observe and appreciate risks, and to take care for their own safety. The fundamental problem remains the extent to which it is reasonable to require occupiers to protect entrants from a risk of injury associated with the condition of the premises.
On behalf of Ms Gentle, it is acknowledged that it is trite to say that stairs, in and of themselves, are inherently dangerous. But it was not the brick stairway itself that posed a danger to the plaintiff in the present case; rather, the presence of damaged brick/s that were present on the edge of individual stairs and landings that comprised the stairway.
Doubtless the steps could have been made safer. But their safety was not underwritten by the tenancy agreement. Ms Gentle does not rely upon a contract supportive of a higher duty (than that at common law or under the OLA) in relation to the safety of premises. Accordingly, applying Jones v Bartlett Mr Wright's duty as landlord did not require him to commission experts to inspect the premises to look for latent defects, nor to make the premises as safe as reasonable care can make them.[35]
[35] Sakoua at [9] citing Ahluwalia v Robinson [2003] NSWCA 175 [23].
I do not consider that on 15 April 2016 the steps were in a defective state that went beyond merely capable of causing injury.

Issue (5) - Did Ms Gentle report issues with the steps to Mr Wright or Ms Danker before 15 April 2016?

According to Ms Gentle, she initially dealt with Ms Danker who she understood to be effectively managing the property. Subsequently she dealt directly with Mr Wright who would often come to the property to fix things. If there was something that needed to be fixed, Ms Gentle would advise Ms Danker during the quarterly property inspections. If it was urgent, she would try to call or text.[36]
[36] ts 20.
Ms Gentle stated that she discussed the conditions of the steps with Ms Danker on more than one occasion. There was quite a bit of brickwork damage to the front of the property, and Ms Gentle was concerned that someone was going to fall off the balcony.[37] She mentioned the loose bricks at the first or the second inspection,[38] respectively within six weeks and four and a half months of moving in.[39]
[37] ts 20 and ts 22.
[38] ts 46.
[39] As clarified at ts 80.
At one inspection, Ms Gentle walked down the steps with Ms Danker as she was leaving. One of the two of them - Ms Gentle could not remember who - tripped on the loose bottom brick. I do not accept that if this incident had occurred Ms Gentle would be unable to remember whether it was her or Ms Danker who tripped. While the brick on that occasion was not the brick that caused Ms Gentle to trip on 15 April 2016, Ms Gentle then asked Ms Danker if it was possible to get all the bricks fixed when she next got a bricklayer out.[40] Nothing, however, was done. After this episode there was no written communication between them prior to the accident.[41] She recalled raising the subject with Ms Danker at an inspection before Christmas.[42]
[40] ts 20.
[41] ts 80.
[42] ts 81.
Ms Gentle could not recall ever discussing the stairs or the brickwork with Mr Wright[43] although she was in contact with him. For example, on 1 July 2015 Ms Gentle texted Mr Wright[44] about an issue, she thought, with the oven. She accepted that she did not mention any issue with the steps.[45] There is a 3 September 2015 tax invoice for these premises referring to 'bypasses faulty oven clock'.[46] Ms Gentle also reported a problem with the pool pump to Mr Wright. He came and fixed it.[47] Mr Wright also reimbursed Ms Gentle for the cost of a plumber who dealt with a leaking pipe.[48]
[43] ts 21 - ts 22.
[44] Exhibit 9.
[45] ts 44.
[46] Exhibit 21 and ts 255.
[47] ts 45 and ts 256.
[48] ts 45 and ts 257.
At the time of the accident, Ms Gentle said that she was walking cautiously. She was aware that there were a few damaged bricks, especially toward the bottom of the stairway. Her evidence was that she had become aware of the damaged bricks after she had moved into the premises in July 2015. She was also aware of loose bricks near a balustrade in the elevated front yard of the premises.[49]
[49] ts 19 and ts 20.
No evidence was called from any of the two or three other people who Ms Gentle said had tripped on the bricks prior to her accident.[50]
[50] ts 79.
I accept Ms Danker's evidence[51] that whilst Ms Gentle was resident at the premises she did not report any problem with the steps to Ms Danker. I also accept Ms Danker's evidence that neither she nor Ms Gentle tripped on the steps while she was with Ms Gentle.[52]
[51] ts 286.
[52] ts 297.
Ms Gentle testified that she became aware of the issue with the bricks on the steps because the presence of the 'loose ones' made us (I assume Ms Gentle and her son) more aware of looking for other trip hazards.[53] Ms Gentle said that there was quite a bit of brickwork damage to the front of the property, by which she meant bricks on the balustrade.[54] By contrast, Mr Wright testified that the balustrade area was not brick paved and has at all relevant times been concrete.[55] The property inspection report of February 2015 does not refer to any extensive brickwork damage to the front of the property.
[53] ts 19.
[54] ts 20.
[55] ts 260.
In my view there is no plausible reason for Ms Gentle's failure to communicate directly with Mr Wright about the steps or loose bricks if she had been concerned. It would appear to be a more urgent concern than some of the other matters that she did speak to him about, given her observation that she was scared mainly for 'other friends or kids to fall.'[56]
[56] ts 22.
For these reasons and in the context of my overall findings of Ms Gentle's credibility as a witness (see [157] below), Ms Gentle has not satisfied me that she ever complained to Ms Danker about the steps. Ms Gentle accepted in evidence that she did not ever complain to Mr Wright.
Ms Gentle's failure to report the suggested imperfection to Mr Wright, or Ms Danker deprived Mr Wright of the opportunity to take remedial action.
Ms Gentle's only explanation was: [57]
At the time I was still grateful to have a nice house and as a single parent with kids you don't want to be the annoying tenant so don't harp on because they will just kick you out and get a new tenant in …
[57] ts 80.
Ms Gentle had no difficulty in drawing her landlord's attention to other maintenance issues, which, to her knowledge, Mr Wright responded to. Absence of any complaint about the steps strongly suggests that prior to her accident, and indeed for many months after her accident, Ms Gentle did not recognise the front steps as being hazardous or in need of any repair.

Issue (6) - Had there been any prior incidents of tripping or slipping on the steps?

For the reasons set out above and in the context of my overall findings of Ms Gentle's credibility as a witness (see [157] below), Ms Gentle has not satisfied me that there been any prior incidents of tripping or slipping on the steps.

Issue (7) - Did Ms Gentle have any knowledge of the imperfections before her fall?

For the reasons set out above and in the context of my overall findings of Ms Gentle's credibility as a witness (see [157] below), contrary to her evidence I am not persuaded that Ms Gentle considered the steps to present any danger to her before the events of 15 April 2016.
Consequently, issue (16) - did Ms Gentle choose to walk down the steps, with knowledge of the defect, thereby voluntarily assuming the risk - does not arise.

Issue (8) - If Ms Gentle did not communicate any such defect to Mr Wright, was there was any basis for Mr Wright nonetheless to be aware of the defect?

Ms Gentle's alternate position is that if Mr Wright did not know about the defect, he nonetheless should have done.
As I have noted, a duty to repair required Mr Wright to address defects, that is something more than a condition capable of causing injury, of which he was aware or ought to be aware.
Ms Gentle argues that Mr Wright's lack of knowledge arises from inadequate procedures involving inspection and maintenance of the premises. Mr Wright was required to inspect the property from time to time in order to avoid any foreseeable risk of injury from defects which an appropriate inspection might make him aware. As I have noted the premises was the subject of a detailed property inspection report in February 2015.
Ms Gentle's case is that the defects were present and apparent. The foreseeable risk of injury here was a gap in a step in what Ms Gentle characterises as a steep flight of brick stairs with no handrail. The unsafe nature of the stairs was obvious. Detection required no specialist expertise. In particular, an ordinary inspection of the stairs would have revealed the gap in the brick(s). It was a hazard that ought to have been seen and assessed by Ms Danker in the course of the various inspections and then conveyed to Mr Wright. The damage to the bricks was readily observable to the naked eye.
Ms Gentle submits that whilst that duty would not extend to inspecting the property or making enquiries on a daily basis, if Mr Wright had routinely inspected the property, such an inspection would have made him aware of the obvious defects to the step which gave rise to the foreseeable risk of injury.
Mr Wright argues that a reasonable person in his position would reasonably expect that if any problem that had not been picked up during the February 2015 property inspection did emerge, it would be apparent to those living in the house. And that he would reasonably expect to be told about it, so as to enable him to repair.
Further, a reasonable person in his position would assume that if the failure of the step was such as to cause a significant risk of injury, prior to repair works being undertaken, Ms Gentle would take interim measures to reduce the risk of injury.
Essentially, Mr Wright argues that he had no insight which was not available to Ms Gentle and other users of the house. He was in no better position than Ms Gentle to observe the condition of the steps.
I am satisfied that a reasonable person in Mr Wright's position would have proceeded on the assumption that if the slightly broken step was a hazard, as alleged, that fact would quickly be reported to him in order that repairs might be undertaken.
The history of uneventful use, coupled with the February 2015 property inspection report, showed that there was nothing to put Mr Wright on notice of a defect or condition requiring attention to protect the safety of a new tenant.[58]

Issue (9) - Was there a foreseeable risk of harm that was not insignificant?

[58] Sakoua [33].

The decision of the High Court in Jones v Bartlett established that the lessor of residential premises owes a duty of care to an incoming tenant.[59] As Mason P noted in Sakoua v Williams their Honours in Jones v Bartlett did not, however, formulate the scope of that duty in identical terms.[60]
[59] Applied for example in Smith [53] - [56].
[60] Sakoua [3].
Three of the majority justices[61] confined the duty to take reasonable care to avoid foreseeable risk of injury, leaving the practical content of the duty to be governed by the circumstances of a particular case.[62]
[61] Jones v Bartlett [56] - [58] (Gleeson CJ), [168] - [169] (Gummow & Hayne JJ).
[62] Sakoua [4].
Kirby and Gaudron JJ, also in the majority, favoured a slightly narrower formulation of the duty, referring to a duty to put and keep the premises in a state of safe repair.[63] Put another way, to take reasonable care to avoid foreseeable risk of injury from defects of which the landlord was on notice, or of which (by appropriate inspection) the landlord would reasonably become aware.[64]
[63] Jones v Bartlett [88] - [93] (Gaudron J).
[64] Jones v Bartlett [252] (Kirby J).
Foreseeability of the risk of injury and the likelihood of that risk occurring are two different things. Consequently, reference to a risk of injury as 'foreseeable' is not to be equated with any statement as to the probability or improbability of its occurrence. By implication, however, a foreseeable risk is not one that is far‑fetched or fanciful.[65] As a result, the common law test for foreseeability has been described on a number of occasions as 'undemanding'.[66]
[65] Wyong Shire Council v Shirt (47) (Mason J).
[66] Taylor v Fisher [2018] WASCA 126 [34] (Martin CJ) (Taylor v Fisher).
Mason P held in Sakoua at [26] that foreseeability of risk of injury is not determinative of a breach of duty of care. The duty is one of reasonable care, not whether safety could have been improved by some modification. The duty is not confined to one owed to those who are careful for their own safety, but it is relevant to take into account that plaintiffs are themselves expected to act reasonably and take care for their own safety when determining what is reasonable.
In assessing foreseeability of harm, a defendant is generally entitled to assume that a person on the premises will take care for his or her own safety: Dederer at [45].
Ms Gentle has failed to satisfy me that Mr Wright did know about this defect, because Ms Gentle had reported it to Mr Wright's partner in her capacity as the property manager, but did nothing about it. Ms Gentle has failed to satisfy me that Mr Wright should have known about the existence of the damaged bricks. In my view there was no basis for Mr Wright to know about the alleged defect. I am satisfied that steps did not constitute a foreseeable risk.

Issue (10) - On the morning of her fall was Ms Gentle hurrying down the stairs in the dark?

In my view, she plainly was.

Ms Gentle's evidence of her fall

The only two witnesses are Ms Gentle and (to an extent) her son Jaxon, then aged 13 ½. They had planned to go camping at a festival that morning. On her evidence Ms Gentle left the house at around or just before 6.00 am. Ms Gentle stated that it was 'just' daylight at the time.[67] In cross-examination she seemed to accept that it was dark at the time she fell although she stated that, 'it was just coming light.'[68]
[67] ts 15.
[68] ts 71.
The St John Ambulance patient care record reveals that Ms Gentle's son called them at 5:54:48 am. I am satisfied that this was just after Ms Gentle's fall, so that Ms Gentle left the house earlier than approximately 6.00 am. It was an agreed fact that sunrise on 15 April 2016 was 6.38 am.[69] I find that it was dark at the time that Ms Gentle left her house.
[69] ts 309.
Ms Gentle was pretty sure that she walked straight down the middle of the stairs.[70] She was looking towards the car and her son.[71] As she followed her son down the stairs she felt with her right foot, 'a gap sort of feeling where there was something missing'. That threw her off balance onto her right side. As she tried to overcorrect she went down onto her left side onto the very bottom of the steps.[72] Ms Gentle was unable to identify the exact brick she stood on immediately prior to falling, but provided an approximation of where she was at the time of the fall.[73] Ms Gentle also identified the bricks in the stairwell that she identified as broken. Ms Gentle submits that the broken bricks were in a consistent location to the point where she estimates she fell.
[70] ts 15.
[71] ts 75.
[72] ts 10 and ts 15.
[73] Exhibit 1.

Ms Gentle testified that the brick which caused her fall definitely [had] something missing to throw her right foot over and was on the bottom part of the stairs.[74]
[74] See for example ts 47.
Ms Gentle said that she made her way down the stairs in a way that was overly cautious because she knew there was a few damaged bricks, especially at the bottom, which had previously tripped her up.[75]
[75] ts 19.
Ms Gentle submits that it is open to me to conclude that the brick which caused the fall was the damaged brick on the closest landing to the bottom. Ms Gentle, in evidence, was unable to specify the exact step.[76]
[76] ts 15 and ts 65.
Mr Wright replaced several pavers when he discovered what Ms Gentle had alleged.[77]

Jaxon's evidence of Ms Gentle's fall

[77] ts 275.

Ms Gentle's son Jaxon, now aged 18, gave evidence as part of her case. He described himself sprinting or 'moved fastly' down the stairs.[78] In cross-examination he said he ran down the stairs very fast.[79]
[78] ts 123.
[79] ts 130.
He agreed that it was dark at the time, but said it was light enough to see. By the time he got to the bottom of the stairs his mother was walking down the stairs very cautiously.[80] He described his mother tapping her feet around when she got to the middle platform.[81] I have no doubt that Ms Gentle is a devoted single parent and that her son is extremely close to her. This evidence had the hallmark of a witness who was retrospectively seeking to create a scenario which is consistent with the claim that he is aware his mother is making. If Jaxon had seen his mother tapping her feet around when she got to the middle platform (in sharp contrast to the manner with which he negotiated the steps) it seems surprising that he did not witness her fall, which would have occurred immediately afterwards.
[80] ts 123.
[81] ts 130.
His mother only got to the last platform before (as he understood it) she tripped over the brick. He heard her scream but did not actually see her fall.[82]
[82] ts 124.
Whilst it is true as urged by Ms Gentle that Jaxon was able to identify the damaged brick that he believed his mother fell on[83] and that this was consistent with Ms Gentle's evidence as to the location of her fall, it remains the case that Jaxon cannot specifically identify the precise location because he did not witness the fall. He just saw the aftermath.
[83] Exhibit 2.9.
There is no independent evidence to entirely support Ms Gentle's assertions as to the mechanism of her fall. Ms Gentle's credibility has very much been placed in issue.

The consequences of Ms Gentle's fall

Ms Gentle undoubtedly suffered serious injuries as a result of this fall. She was taken by ambulance to Joondalup Hospital where she underwent surgery on 16 April. She remained in hospital for 10 days until 26 April 2016.
Ms Gentle suffered a fracture to her left femur and soft tissue injuries to her thoracic spine. As a result she has experienced restrictions and limitations in movement to her left leg, left foot and mid/lower back. She underwent surgery to rectify the femoral fracture; surgery to correct the position of the intramedullary nail and screws affixed to her left femur as well as subsequent surgery to remove the surgical hardware.
Ms Gentle continues to suffer from ongoing pain and discomfort to her left hip, left leg, left knee to her lower back. She experiences an altered gait. As a result, her ability to engage in her pre-accident employment as a cleaner has been impaired. Likewise, her ability to enjoy certain recreational activities.
The consequences, although very severe, do not assist in establishing the mechanism of Ms Gentle's fall. Her injuries are equally consistent with falling because she was hurrying as opposed to tripping on a loose brick.

Issue (11) - The significance of Ms Gentle's account of her fall to some of the medical staff who treated her

Joondalup Health Campus emergency department triage/nursing assessment records[84] refer to Ms Gentle informing staff at 7.40 am:
45-year-old BBA[85] post-fall down steps this am. In a hurry to leave for camping.
[84] Page 65 of exhibit 15.
[85] I assume this stands for 'brought by ambulance'.
On the face of it this contemporaneous note is consistent with the proposition that this accident was caused by Ms Gentle rushing.
As Hallen J noted in Evans and Braddock:[86]
A court, in cases involving events which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200, per Jagot J, at [1247]. Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd (No 4) [2010] WASC 160, per Kenneth Martin J, at [157].
[86] Evans and Braddock [2015] NSWSC 249 [74].
In cross-examination[87] Ms Gentle said that she was definitely not in a hurry.[88] She denied telling hospital staff that she was in a hurry to leave for camping.[89]
[87] ts 82.
[88] ts 82.
[89] ts 83.
There is a further reference[90] to:
Allegedly fell off the stairs, four steps, at home at 5 am. Landed on left leg awkwardly. Could not see because of darkness.
[90] Page 66 of exhibit 15.
Asked about this, Ms Gentle said that:[91]
… it was still dark but it can't have been that dark. My son ran down them.
[91] ts 84.
On or about 6 May 2016 Ms Gentle was referred to the Joondalup Health Campus Occupational Therapy. The Initial Interview/Discharge Planning report dated 6 May 2016[92] records, as part of 'home environment':
Front, 20 steps, some landings, no rails, unavoidable.
[92] Page 237 of exhibit 15.
Ms Gentle did not refer to any defects in the steps nor did she describe them as steep. I accept counsel for Mr Wright's submission that it is significant that the occupational therapy report created shortly after her accident and after a visit to the premises does not record any structural issue with the front steps other than the lack of a handrail. In circumstances where the Occupational Therapist inspected the steps as the only means of accessing the property, the absence of any reference to structural issues with the steps suggests that Ms Gentle did not, at that time, think that a defect in the steps had caused her fall.
Even a year later, Ms Gentle still omitted any reference to structural defects when discussing her accident. On 13 June 2017 Ms Gentle consulted with Dr Ross Goodheart who recorded that Ms Gentle described, 'negotiating the stairs at the front of a home. Apparently she slipped and twisted her ankle on the first step.' Asked about that, Ms Gentle said that she did not mean slipped as in slipping on a wet floor. It was more of a 'lost balance feeling.' As for her reference to the first step she said, 'again, someone's misinterpreted me. Maybe I was on painkillers.' She definitely had no recollection of saying to Dr Goodheart that she slipped and twisted her ankle on the first step.[93]
[93] ts 63 - ts 64.
Ms Gentle accepted that she saw Dr Goodheart for medico-legal purposes as opposed to him being her treating doctor. Whilst acknowledging that she did not refer to any structural issue with the step to him when she described her accident, she said that at that stage, she didn't think that was important. She thought he was there more to help her with her leg pain.
On 17 May 2019 another doctor, Dr Evan Jenkins reported that Ms Gentle told him:
As she descended the stairs slowly behind her son, her right foot inadvertently went into this gap inverting or twisting her right ankle and causing her to fall forward.
Ms Gentle said that she did not mean by that that her son was literally in front of her on the steps; rather he had gone first and then she followed. She did describe that as she was leaving the house she had screamed at her son to slow down.[94]
[94] ts 74.
I am satisfied that the hospital notes accurately record what Ms Gentle told staff at Joondalup Health Campus on the day of her accident. It is highly unlikely that Ms Gentle was contemplating legal action at that stage, as opposed to looking to the hospital staff to alleviate the excruciating pain that she would doubtless have been in at the time. What she said to them is likely to be the truth. Her account at the time is suggestive that in her rush she was not paying attention and simply misjudged the step.

Issue (12) - Ms Gentle's communications with Mr Wright after the accident

Ms Gentle's lease concluded in December 2016. She was in touch with Mr Wright towards the end. On 30 December 2016 Ms Gentle texted Mr Wright in these terms: [95]
Sorry, Craig, on phone to bloody Telstra but yeah, all good for home open tomorrow. Had a team of cleaners there plus borrow creepy crawly to get pool sweet. Sorry I thought Monday for keys but whatever easiest. I can get someone to drop keys off just before home open tomorrow if you wanted the inspection then before poor people were walking on dirty floors as I'm just about to go to hospital again. Going to get knocked out as I pushed stupid leg too much. P.S. I've left my dishwasher in the foyer, another sorry for not having phone on me as much lately.
[95] Exhibit 8.
In attacking Ms Gentle's credibility, Mr Wright submits that it is significant that in a relatively detailed text message Ms Gentle made absolutely no reference to her accident or to the fact that the steps remained in a seriously dangerous condition. He invites the inference that at the time of writing this text message, Ms Gentle did not consider that her fall had been caused by a defect in the steps.
Ms Gentle said that she did not report any issue with the steps at that time to Mr Wright because they had moved out.[96] She accepted that the stairs had not been fixed and that to her mind they remained a safety issue.[97]
[96] ts 42.
[97] ts 43.
During cross-examination Ms Gentle, when asked about the precise location of the fall stated,[98]
Well, I haven't been back to count them. I know that it was down the bottom end.
[98] ts 47.
Given that Ms Gentle continued to live at this house for eight months after her accident, it is very surprising that in that period she was not able to look at the steps and identify precisely which step it was that she had tripped on. That is not indicative of a person who knew from the time of the accident that there was a defect in a particular step that had caused her to suffer this very serious fall. If that was her understanding as of the time of her accident, in my view she would undoubtedly have examined the steps subsequently, and would have identified precisely what the cause of her fall was.

Issue (13) - Are there other matters adversely impacting upon Ms Gentle's credibility?

Although Jaxon saw the aftermath of the fall, the only witness to the actual fall is Ms Gentle herself. As noted, her credibility as a witness is in issue. There is an issue about whether I am able to rely upon her evidence at trial. It is open to me to accept all of her evidence, or none of her evidence or some of her evidence.

Ms Gentle's account of the extent of her incapacity to her doctors

In attacking Ms Gentle's credibility, Mr Wright contends that she demonstrably exaggerated the extent of her incapacity to a number of the treating doctors. On 13 June 2017 Ms Gentle advised Dr Goodheart that at that time she was working approximately 40 hours weekly.[99] Ms Gentle said that she was never (doing so) for 'a long extended period of time'.[100]
[99] ts 53.
[100] ts 54.
On 15 March 2018 Ms Gentle's account to her general practitioner, Dr Edward Rohr at the Illawarra Medical Centre led to a report that:
Katrina has been deemed unfit for work since the trauma dated 15 April 2016. In December 2016 Katrina did attempt some work, but the symptoms became too great and due to poor mobility she was unable to fulfil her required duties.
Ms Gentle's tax return for the 2016 financial year[101] (her accident of course having occurred on 15 April 2016) recorded a total business income of $77,405. Her tax return for the 2017 financial year[102] recorded a total business income of $62,917. Contractor commission expenses, that is paying other people to do the work for Ms Gentle, only increased from $7,000 to $7,620. Ms Gentle largely attributed the retention of some 81% of her 2016 income to income protection insurance.[103] Ms Gentle said that she had never said she had not worked, it was just that she could not work like she used to.[104]
[101] Exhibit 5, page 54; ts 49.
[102] Exhibit 5, page 57; ts 50.
[103] ts 50.
[104] ts 51.
On 17 May 2019 Ms Gentle told Dr Jenkins that she was off work altogether for approximately six months. She continued her cleaning work, with considerable suffering, stating that 'she had no choice'. As of 17 May 2019 she was doing domestic cleaning fulltime.[105]
[105] ts 52.
On 17 September 2020 Ms Gentle advised occupational physician, Dr Hong Tan that she only returned to work as a commercial cleaner towards the end of 2016. Since then she had been undertaking a self‑employed role occasionally with her son assisting, averaging between 10 to 15 hours per week and up to 30 hours a week domestic cleaning.[106] Counsel contrasted this with her account of working approximately 40 hours weekly as provided to Dr Goodheart.
[106] ts 53.
Ms Gentle said that Dr Tan may have wrongly thought she was talking generally, as opposed to referring to a particular week. There might have been a couple of weeks where she was only working 10 hours.[107]
[107] ts 56.
I accept that Ms Gentle did not make any reference in her initial evidence to her unrelated health conditions. It was only after Ms Gentle and a number of medical witnesses had testified on 21 and 22 December 2020 that Ms Gentle revealed, when she was recalled, that she had fractured her shoulder on 18 April 2020.[108] This injury caused Ms Gentle to remain off work for in excess of three months.[109]
[108] ts 214.
[109] ts 233.
In the period between 22 December 2020 (the second hearing day) and 23 March 2021 (the third hearing day) various additional documents were discovered or produced including the relevant Ashton Avenue Medical Centre's file, the Real Insurance file, statements from Bankwest, and a file from Housework Heroes.[110]
[110] Exhibits 3.1 - 3.3.
These files revealed Ms Gentle's fractured left scapula in April 2020[111] and that Ms Gentle had made a claim and received payments as a result of incapacity caused by that injury.[112] Prior to this, Ms Gentle had not disclosed the existence of this injury notwithstanding the fact she was pursuing a claim for economic loss against Mr Wright for a period which included a time when she was in receipt of income protection payments from Real Insurance for an unrelated injury.
[111] Exhibit 3.1, page 14.
[112] Exhibit 3.1, pages 145 - 187.
Ms Gentle accepted that on 18 April 2020 she fell over and fractured her left scapula.[113] She accepted that for approximately three months after she sustained this injury she was unable to work because of it.[114] She stated that she would have told Dr Tan about her shoulder injury.[115] I accept Dr Tan's evidence[116] that Ms Gentle did not so advise him
[113] ts 214.
[114] ts 215.
[115] ts 216.
[116] ts 304.
In contrast to her earlier evidence, Ms Gentle subsequently accepted that she had continued to run her business in the period between April and October 2016 and received a profit from the same. She continued to actively coordinate her business, communicated with clients and derived an income, by way of example from work carried out by a person called Nicole as acknowledged in cross-examination.[117]
[117] ts 183 - ts 184.
On 15 June 2016 Ms Gentle made a declaration to Real Insurance in a Claim Form[118] in which she stated[119] that she had stopped all work completely from 15 April 2016. Ms Gentle accepted that she filled out the form[120] and that she received payments as a result of this claim.[121]
[118] Exhibit 18.
[119] Page 4 of exhibit 18.
[120] ts 191.
[121] ts 194 - ts 195.
When counsel put to Ms Gentle that her declaration that she had ceased all work was false, Ms Gentle responded: [122]
I must have read that wrong due to the painkillers that you say I'm on.
[122] ts 198.
Counsel put to Ms Gentle:
And can I suggest to you in completing the form in the way you did and telling them you'd ceased all form of work, you deceived Real Insurance and as a result of that you received a financial benefit?
Ms Gentle responded:[123]
No. And I was - I pay for that insurance …
[123] ts 198.
Ms Gentle accepted that her emphysema is a very serious condition[124] and that she did not tell any of the doctors who assessed her that she had emphysema,[125] stating:[126]
I've honestly forgotten I had it until you mentioned it.
[124] ts 205.
[125] ts 206.
[126] ts 207.
Ms Gentle accepted that in 2020 she had received income protection payments from Real Insurance while she was also in receipt of payments from Centrelink and had not declared the income protections payments to Centrelink.[127] Ms Gentle further accepted that she was aware of her obligation to advise Centrelink of income from other sources.[128] On 30 April 2021 I granted Ms Gentle a certificate under s 11 of the Evidence Act 1906 (WA).[129]
[127] ts 231 - ts 232.
[128] ts 232.
[129] ts 249.
Ms Gentle also accepted that she had received cash as income from her cleaning business which she had not declared to the Australian Taxation Office.[130]
[130] ts 238.
In closing submissions, counsel for Ms Gentle accepted that the evidence as to what Ms Gentle was able to earn, post-accident, is tempered by her evidence that her income taxation documents may not accurately reflect all of her earnings or expenses.
All of these matters impact significantly on Ms Gentle's credibility. In contrast to Mr Wright and Ms Danker, I did not find Ms Gentle to be a credible or reliable witness. It is simply not possible for me to make any factual findings based on Ms Gentle's evidence without corroboration.

Issue (14) - If Mr Wright had known about the alleged defect what would have been a reasonable response to the risk that it posed?

The response of most people to many hazards in and around their premises is to do nothing. The legislature has recognised, and has reminded courts, that, often, that may be a reasonable response. Whether, in any particular case, it is a reasonable response is a question of fact.[131]
[131] Neindorf v Junkovic at [14] cited in Smith at [107].
The standard of care determines what it is that the person under the duty must do to discharge a duty of care. At common law the question to be asked is what, if anything, a reasonable person in that person's position would have done by way of response to the foreseeable risk of that injury. If s 5B(1)(c) of the CLA operates at this stage of the inquiry the same question arises, that is, whether 'in the circumstances a reasonable person in [the appellant's] position' would have taken the precautions which the respondent alleged should have been taken. It is necessary to look forward to identify what a reasonable person would have done, not backward to identify what would have avoided the particular injury or damage.[132]
[132] Smith [34].
Mere failure to eliminate a reasonably foreseeable risk does not in itself establish negligence. It remains necessary to precisely identify what a reasonable person would have done (viewed prospectively), in response to the foreseeable risk.[133]
[133] Taylor v Fisher [105]. See also Hayne J in Vairy v Wyong Shire Council (2005) 223 CLR 422 [124] ‑ [129].

So, the question is not whether the steps should have been repaired so as to remove the risk of injury to Ms Gentle. Rather, it is whether, viewed at the time of the grant of the lease, a reasonable response to the risk of injury to users of the steps required Mr Wright to repair them.[134]
[134] Taylor v Fisher [106].
I note the complete absence of any reference to any defect in the steps in the detailed property inspection report.
I apply the five well‑established propositions concerning the notion of a 'reasonable person' and the standard of 'reasonableness' identified by Buss JA in Smith at [87].
Buss JA noted:[135]
these propositions are not inconsistent with the criteria in s 5(1) and s 5(4) of the OLA or with s 5B of the CLA. The fourth and fifth propositions reflect the provisions of s 5B(1)(b) of the CLA.
[135] Smith [88].
Ms Gentle submits that a reasonable person in Mr Wright's position would have replaced the damaged brick paver/s prior to leasing the premises to Ms Gentle. Ms Gentle submits that there was no particularly burdensome cost or inconvenience to replace the damaged brick paver. Mr Wright accepted that replacing the damaged brick paver after Ms Gentle's accident took a couple of hours at no financial cost.[136]
[136] ts 278.
The question, therefore, is whether in all the circumstances, a reasonable person in Mr Wright's position taken the precautions that Ms Gentle contends he should have taken?
Applying the holding of Mason J in Wyong Shire Council v Shirt,[137] the perception of the reasonable person's response calls for a consideration of a number of factors.
[137] [47] - [48].
First, the magnitude of the risk to someone in Ms Gentle's position. The risk here, of course, is a gap in the brickwork of one or more of the steps so that a person might fall some distance down them and land on a hard surface. It is the case that the harm to someone falling down the steps is likely to be serious. The higher up the broken brick, the greater the risk of injury to such a person. I consider that the magnitude of the risk to someone in Ms Gentle's position, walking down the steps was moderate. The steps were not especially steep. The broken bricks were towards the bottom of the steps.
Second, the degree of the probability of the risk actually occurring. Given that before Ms Gentle's fall there had been no incident or problem with the steps either experienced by or reported to Mr Wright and the fact that she fell because she was rushing down the steps in darkness, I find the probability of that harm occurring if normal precautions were taken to be extremely low. Mr Wright contends that the risk of a person tripping on the stairs was not such that a reasonable person in Mr Wright's position (without notice of a complaint) would have taken the precaution of repairing. The risk of a person tripping, if they were exercising reasonable care for their own safety, was very low. It cannot be said that a reasonable person in Mr Wright's position would have taken the identified precaution. That such an occupier might have taken such precautions and that such precautions might have avoided the accident is not determinative.
Third, I accept that the expense, difficulty and inconvenience of taking alleviating action was minimal.
Fourth, I accept that Mr Wright did not have any other conflicting responsibilities.
It is only when these matters are balanced out that one is able assert what is the standard of response to be ascribed to the reasonable person placed in Mr Wright's position.[138]
[138] Wyong Shire Council v Shirt [48].
I start from the premise that a set of outdoor steps in an ordinary suburban house will not be perfectly level. It is inevitable that the surface will have some unevenness or minor erosion. The gap in the bricks as shown in the photographs was comparatively modest.
I accept that any imperfect steps are bound to pose some risk to anyone who walks down them. If one negotiates a set of steps whilst it is still dark it is highly advisable not to rush or run down them. The condition of the steps was a minor risk that an occupant would be required to cope with in the ordinary course of living at these premises. The gap was not a trap. It was not a hazard of a kind requiring some protection. It was not a hazard at all for an adult taking reasonable care for his or her own safety. As of 15 April 2016 the occupants of the premises were not vulnerable. I find that was no evidence that the gap had previously caused or materially contributed to a fall.
Mr Wright's duty as landlord is not and cannot be to make the steps perfectly safe in circumstances where steps will always pose a risk of injury to a person, such as Ms Gentle, who is not watching where he or she is walking and taking reasonable care for their own safety.
Although the cost of repairing the stairs, both in monetary terms and in time required, was very modest, a reasonable person in Mr Wright's position would not, in the circumstances, have filled in the gap for the purpose of guarding against the risk that Ms Gentle or another occupant or visitor might, by some means, fall and sustain an injury as a result of placing a foot wholly or partly within the gap while walking down the steps. He would be entitled to assume that anyone using the steps when it was dark would exercise some care.

Occupiers' Liability Act 1985 (WA)

The duty owed by an occupier of premises towards a person such as Ms Gentle is as set out under s 5(4) of the OLA. Section 9(1) of the OLA, which sets out the duty of care of owed by a landlord, reads as follows:
Where premises are occupied or used by virtue of a tenancy under which the landlord is responsible for the maintenance or repair of the premises, it shall be the duty of the landlord to show towards any persons who may from time to time be on the premises the same care in respect of dangers arising from any failure on his part in carrying out his responsibilities of maintenance and repair of the premises as is required under this Act to be shown by an occupier of premises towards persons entering on those premises.
Section 9(3) provides:
Nothing in this section shall relieve a landlord of any duty which he is under apart from this section.
Mr Wright's statutory duty under the OLA is to be assessed by reference to the matters enumerated in s 5(4) of the OLA.
First, as to the gravity and likelihood of the probable injury to an occupier such as Ms Gentle, s 5(4)(a), the likelihood of the probable injury was low. The nature and extent of the risk was minor and of a kind ordinarily to be expected in a set of outdoor steps in an ordinary suburban house. The gravity of any injury however was high.
Second as to the circumstances of the entry onto the premises, s 5(4)(b), the parties were in a contractual relationship of lessor and lessee.
Third as to the nature of the premises, s 5(4)(c), these were reasonably large residential premises privately rented by Ms Gentle.
Fourth, as to the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises, s 5(4)(d), Mr Wright had actual knowledge that Ms Gentle was a resident at the premises.
Fifth as to the age of the person entering the premises, s 5(4)(e), Ms Gentle was aged 45 when she suffered her injury.
Sixth, as to the ability of the person entering the premises to appreciate the danger, s 5(4)(f), on the evidence Ms Gentle was very familiar with these steps.
Seventh, as burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person, s 5(4)(g), whilst the burden (in terms of time and cost) on Mr Wright in filling in the gap with some material would have been relatively insignificant, this must be balanced against my conclusion that the gravity and likelihood of the probable injury was low and the risk was minor and of a kind ordinarily to be expected in premises of this kind.

Conclusion on reasonable response

I find that a reasonable person in Mr Wright's position would not have taken immediate action to avoid a hazard to Ms Gentle. The minor irregularity in the steps was not something that a reasonable person in his position would have thought required any attention. A reasonable person in Mr Wright's position would have proceeded on the assumption that if there was a broken step as alleged that fact would quickly be reported to him in order that repairs might be undertaken.
I find that Ms Gentle was rushing down a flight of unremarkable steps in the dark. This had an obvious effect on her safety. I do not consider that it was foreseeable that a person taking care for his or her safety and using the steps in the ordinary way, would fall to the bottom of the steps. I do not consider that Mr Wright, or any reasonable person in his position, would have appreciated that the steps was a danger or significant risk that he needed to respond to in some way.
Ms Gentle has not satisfied me that the steps constituted a dangerous defect at the time. Ms Gentle has failed to prove that it is more probable than not that, but for Mr Wright's negligence her injury would not have occurred. I find that it is more likely than not that she fell because she was rushing. Further, I am not satisfied that she had previously alerted Mr Wright to any concerns about the steps.
A reasonable person in Mr Wright's position would not have taken action to remedy the minor imperfections in the steps prior to Ms Gentle's fall. To apply an onus on Mr Wright to repair such modest imperfection on the steps, would be to impose an unduly stringent requirement of prevention through the prism of hindsight.

Issue (15) - Was the defendant's breach of duty (if any) causative of her injuries?

Ms Gentle identifies the causal mechanism of her injuries as the gap in the step which caused her to slip and fall down these steps.
The question of causation in cases where an entrant or lessee claims damages in negligence for personal injury against an occupier or a lessor of residential premises is governed by s 5C(1) and s 5D of the CLA.[139]
[139] Smith [91] (Buss JA).
Section 5C (1) of the CLA reads:
(1) A determination that the fault of a person (the 'tortfeasor') caused particular harm comprises the following elements -
(a)that the fault was a necessary condition of the occurrence of the harm (factual causation); and
(b)that it is appropriate for the scope of the tortfeasor's liability to extend to the harm so caused (scope of liability).
Section 5D of the CLA reads:
In determining liability for damages for harm caused by the fault of a person, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
So, the test for factual causation is the 'but for' test.
It must be shown that it is more probable that not that, but for Mr Wright's negligence, which would be failing to repair a broken brick in the steps that he knew about or ought to have known about, Ms Gentle's injury would not have occurred.[140] This requires consideration of the probable course of events had the omission (in not repairing) not occurred.[141] So, Ms Gentle must prove that had any gaps or defects in the steps been repaired it is likely that this would have prevented her fall.
[140] Adeels [53] as cited in Smith [92] ‑ [93].
[141] Strong v Woolworths Ltd t/as Big W [2012] HCA 5; (2012) 86 ALJR 267 [32].
Ms Gentle must satisfy me that not only was one of the steps was broken, but that while walking normally down the steps, her right foot slid off the top of that broken step and twisted, causing her to lose her balance and fall forward to the bottom of the steps.
Ms Gentle has failed to prove that it is more probable than not that, but for Mr Wright's negligence her injury would not have occurred. I find that it is more likely than not that she fell because she was rushing.
Even if the steps were as defective as Ms Gentle contends, she has not shown it to be more probable than not that, but for the absence of any repairs to the steps she would not have fallen.

Overall conclusion and orders

Given my findings, issues (16) to (18) accordingly do not arise.
Whether one applies s 5B(1) of the CLA, or further or alternatively s 5(1) and s (4) of the OLA, Ms Gentle's action fails. In all of the circumstances, Ms Gentle has failed to prove that Mr Wright was in breach of his duty of care to her. Ms Gentle has not satisfied me that the steps constituted a dangerous defect at the time. Ms Gentle has failed to prove that it is more probable than not that, but for Mr Wright's negligence her injury would not have occurred. I find that it is more likely than not that she fell because she was rushing. Further, I am not satisfied that she had previously alerted Mr Wright to any concerns about the steps.
Accordingly the plaintiff's claim is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MW
Associate to Judge Troy
25 JUNE 2021