Potter v Yeung
[2019] VCC 10
•24 January 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-17-00035
| ELIZABETH ANNE POTTER | Plaintiff |
| v | |
| WILLIAM YEUNG | First Defendant |
| and | |
| SANTOSA REALTY CO PTY LTD | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9, 10, 11, 15, 16, 17, 18 October 2018 and 21 and | |
DATE OF JUDGEMENT: | 24 January 2019 | |
CASE MAY BE CITED AS: | Potter v Yeung & Anor | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 10 | |
JUDGMENT
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Subject: OCCUPIER’S LIABILITY
Catchwords: Cause – claim for damages by tenant against landlord and managing real estate agent as a result of injury suffered when ascending stairs at rented residential premises – various causes of action, including breach of occupier’s duty, breach of general duty in negligence, statutory breach and breach of Residential Tenancy Agreement – delegation of landlord’s duty of care to agent – whether common law damages for statutory breach available – contributory negligence – assessment of pain and suffering and special damages
Legislation Cited: Wrongs Act 1958, s14B, Part X, s48, s49, s56, s26; Residential Tenancies Act 1997, s68, s1, s509, s510, s447, Part 5, s210; Uniform Building Regulations 1945, s2710(d), s2712; Victorian Building Code 1984, s24.25; Building Code of Australia 1990, cl6.8(e); Uniform Building Regulations 1959, cl2712(e) and cl2712(a); Uniform Building Regulations 1983; Scaffolding and Lifts Act 1912 (NSW), cl31(b); Industrial Relations Act 1988 (Cth); Accident Compensation Act 1985; Interpretation of Legislation Act (Vic) 1984, s35
Cases Cited: Potter v Yeung & Anor (Ruling No 2) [2018] VCC 1673; Jones v Bartlett [2000] HCA 56; Murfin v United Steel Companies Ltd [1957] 1 All ER 23; O’Connor v SP Bray Limited (1937) 56 CLR 464; Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397; Martin v Western District of the Australasian Coal and Shale Employees’ Federation Workers’ Industrial Union of Australia (Mining Department) (1934) 34 SR (NSW) 593; Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410; Gardiner v State of Victoria [1999] 2 VR 461; Toomey v Scolaro’s Concrete Constructions Pty Ltd (in liq) (No 2) [2001] VSC 279; Matthews v SPI Electricity Pty Ltd; SPI Electricity Pty Ltd v Utility Services Corp Ltd (Ruling No 2) (2011) 34 VR 584; Shields v Deliopoulos [2016] VSC 500; Northern Sandblasting v Harris (1997) 188 CLR 313; Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16; Laresu Pty Ltd v Clark [2010] NSWCA 180; Libra Collaroy Pty Ltd v Bhide [2017] NSWCA 196; Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; Australian Mutual Provident Society v 400 St Kilda Road Pty Ltd [1990] VR 646; Morcom v Campbell Johnson [1956] 1 QB 106; Australian Knitting Mills Limited v Grant (1933) 50 CLR 387; Gration v C Gillan Investments Pty Ltd (2005) 2 Qd R 267; Cooke v Cholmondeley (1858) 4 Drew 326; Proudfoot v Hart (1890) 25 QBD 42; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Judgment:Judgment for the plaintiff – no finding of contributory negligence – damages assessed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram with Mr J Valiotis | Arnold, Thomas & Becker |
| For the First Defendant | Mr A W Middleton | Mills Oakley |
| For the Second Defendant | Mr C G K Madder | Moray & Agnew |
HIS HONOUR:
Preliminary
1 This is a trial[1] in which the plaintiff, Ms Potter, claims pain and suffering and special damages as a result of injuries she sustained when she slipped and fell while ascending stairs at the rear of rented premises at 73 Kanooka Road, Boronia, at about 9.00pm on 19 May 2014. Ms Potter had entered possession under a lease in September 2013, with a co-tenant, Mr Richard Eden.[2]
[1]The proceeding commenced as a jury trial. I dismissed the jury at the conclusion of the evidence because of the complex nature of the legal and factual issues – see Potter v Yeung & Anor (Ruling No 2) [2018] VCC 1673
[2]Mr Eden has since passed away
2 Ms Potter says the fall occurred because of the dilapidated, worn and slippery state of the steps, the fact that a light at the top of the stairs was not working and because there was no handrail. The incident happened at night when it was drizzling with rain. She had walked into the backyard and was ascending the steps to go back into the premises when she slipped on the second or third step. She fell to the ground and suffered a fracture to the right ankle, being a fracture to the calcaneum with comminution into the subtalar region of the foot. As she was required to use crutches to support the right ankle, she claims she developed, some weeks later, a full-thickness tear to the supraspinatus tendon of the right shoulder.
3 The first defendant, Mr Yeung, the owner of the premises, was living interstate throughout the tenancy, and although he purchased the property as an investment in 1992, he visited it on only a few occasions over the years. He said he retained and relied upon Santosa Realty Co Pty Ltd (“Santosa”), the second defendant, in particular the rental manager, Ms Danelle Hunter, to procure tenants, inspect the property, collect the rent and generally to manage the property in accordance with a Management Agreement.[3]
[3]Exhibit D1-One
4 The causes of action against the first defendant are in negligence; breach of the occupier’s duty pursuant to s14B of the Wrongs Act 1958; statutory breach, being a breach of the Residential Tenancies Act 1997 (“the RT Act”) in particular, s68; and contractual breach, being a breach of the Residential Tenancy Agreement (“the Lease”).[4] Despite the claim in respect of contractual breach being abandoned at an earlier time,[5] it was reinvigorated in final submissions.
[4]Exhibit E
[5]The claim as to breach of contract was abandoned when the matter was a jury trial
5 The breach of the Lease was pleaded, in the Amended Statement of Claim,[6] as a breach of clause 2, which required that the first defendant “shall make sure that the premises are maintained in good repair”.
[6]See Plaintiff’s Further Amended Statement of Claim filed (with leave) on or about 30 November 2018
6 The breach of the RT Act was said to be in breach of s68, and was further particularised as:
“(a) failing to ensure the premises were maintained in good repair;
(b)failing to maintain the premises were reasonably fit and suitable for occupation;
(c)failing to undertake any or any reasonable repairs within the premises when he knew or ought to have known that they required repair;
(d)failing to have any or any reasonable system when necessary repairs could be identified;
(e)allowing the premises to be tenanted when he knew or ought to have known that they were not reasonably fit and suitable for occupation.”
7 The particulars of breach of general duty, or of the occupier’s duty pursuant to s14B of the Wrongs Act, were pleaded as:
“(a) Failing to carry out any or any adequate inspection of the premises;
(b) Failing to repair or replace the steps attached to the patio;
(c)Failing to heed a complaint or report that the steps were rotten and slippery or that the roof over the patio was leaking causing the steps to be rotten and slippery;
(d)At all relevant times the defendant knew or ought to have known that the steps were rotten and slippery in that the same could be easily observed from the outside of the house and because such was reported to the defendant’s agent;
(e)Failing to provide adequate lighting;
(f)Failing to provide a hand rail.”
8 The claim against Santosa is in general negligence. The particulars of breach alleged are:
“(a) Failing to carry out any or any adequate inspection of the premises;
(b)Failing to report or adequately report to the first defendant that the steps attached to the patio were rotten and slippery and in need of repair;
(c)Failing to report to the first defendant adequately or at all that the handrail was necessary alongside the steps attached to the patio;
(d)Failing to report adequately or at all to the first defendant that there was inadequate lighting relevant to the steps;
(e)Failing to report to the first defendant adequately or at all that the roof under the patio was leaking causing the steps to be rotten and slippery.”
9 Each defendant admits a duty of care was owed to the plaintiff but denies breach. The first defendant denies the RT Act gives rise to a private right to common law damages and denies breach of contract. He says any duty owed by him to the plaintiff was delegated to the second defendant. Each defendant alleges contributory negligence on the part of the plaintiff.
The evidence as to liability
10 Ms Potter entered the Lease at the premises on 18 September 2013 with a friend, Mr Richard Eden. Her grandson, Charlie, who has an intellectual difficulty, also lived at the premises. She moved there in late September/early October 2013, although did not inspect it beforehand. A Residential Tenancy Condition Report dated 26 September 2013[7] was prepared by the agent, but not signed by either her or Mr Eden. She said she simply ran out of time to sign the document.
[7]Exhibit D
11 Ms Potter was taken to a photograph of the steps at the rear of the premises[8] and said this was not the state of the premises at the time of her fall. She was taken to another photograph[9] and said what was shown in the photograph was the condition of the steps from the beginning of the Lease and up to the time of her fall.[10]
[8]Exhibit A
[9]Exhibit B
[10]At the outset, counsel for the second defendant contended exhibit A was attached to, and part of, the Condition Report of 26 September 2013; however, when Ms Hunt, the managing agent of Santosa, gave evidence, she acknowledged that while she took the photograph, it was not part of the Condition Report.
12 In the second photograph (exhibit A), a floodlight is depicted at the top left corner of the photograph. Ms Potter said the light was not working from the start of the Lease to her fall.
13 At about 9.00pm on Monday, 19 May 2014, Ms Potter said she was going outside to turn off a light in the garage. She thought she was wearing slippers at the time, but was unsure. She was not carrying anything in her hands. She walked from the backyard up the rear steps to re-enter the house, which she said were “very slippery”.[11] She slipped on the second or third step. She fell backwards and landed on her ankle at the bottom of the steps.
[11]Transcript (“T) 70
14 She was asked, had there been a handrail present, whether that would have made any difference. She said she did not believe she would have fallen. She was asked, had the floodlight been operating, whether that would have made any difference. She said she probably would not have fallen.[12]
[12]T70
15 Ms Potter said it was dark, and when she ascended the stairs, she was looking straight ahead. At the time, it was drizzling rain.
16 In cross-examination, Ms Potter said she initialled and signed the Lease[13] at the outset. At no time throughout the Lease did she speak to Mr Yeung. All her dealings were with Santosa, in particular Ms Hunter.
[13]Exhibit E
17 A short time after entering possession of the premises, Ms Potter received a letter or email saying the Condition Report had not been signed and returned.
18 There were “routine inspections” during the course of the Lease, carried out by agents from Santosa. She thought she was present when one was carried out in December 2013.
19 She did not make any complaint about the condition of the premises, in particular the steps, the lighting or the handrail, prior to her fall.
20 At the December routine inspection, the lady from the agency wandered about the premises, but did not go outside.
21 It was put to Ms Potter that she did not report the steps as being defective as there was no reason to do so. She said she simply did not think about it.[14] She said she did not really look at the Condition Report. Mr Eden dealt with those sorts of things.
[14]T106
22 When she walked out on the night, she was able to see the steps but it was fairly dark. There was some lighting from the patio area. She was not hurrying at the time. It was put to her that she might have been hurrying to avoid the drizzling rain. She said she might have been.[15]
[15]T111
23 Ms Potter signed a Residential Tenancy Application form dated 16 September 2013.[16] Some of the writing was hers and some was Mr Eden’s. There was a question asked: “Have you viewed the property?” – “Yes”. That was not her handwriting.
[16]Exhibit D2-One
24 The only part of the Lease she was concerned about was the “dog clause”. She said she may have been provided with urgent repair forms, or standard maintenance forms, but she could not recall. She had a quick look at the first couple of pages of the Condition Report, but left the matter to Mr Eden. She thought she read the bullet points on the second page.
25 Ms Potter described the condition of the premises when she first moved in. She said the carpets were putrid, the walls needed painting, the kitchen needed refurbishing, the bedrooms needed painting, and blinds and the laundry cupboards had to be repaired. There was some rotting wood.[17]
[17]T120
26 She was taken to the various comments in the Condition Report about the standard in the rooms of the premises. She said she thought what was typed was largely accurate.
27 Over the period from December 2013 until the fall in May 2014, she said she used the stairs on a regular basis. She did not use them often at night. She more than likely used them when it was raining.[18] She did not complain that the condition of the steps was slippery or degraded, or that a handrail should be installed. It was suggested that she ought to have thought to use a torch. She said she did not think about it. After her fall, Mr Eden rang the agent and explained she had fallen. He told the agent that the stairs had to be fixed and a handrail put in. This was done, although she could not recall precisely when.[19]
[18]T129
[19]See exhibit C, photograph taken after the repair work to the stairs
28 A quote and invoice showed the repairs to the stairs, carried out in July 2014, at a cost of $572.00.[20]
[20]Exhibits F and G
29 Ms Potter was taken to the routine inspection report of December 2013[21] where it was suggested that the deck and patio area was clean and in good repair. She disagreed with that assessment. She said she never recalled the steps being in the condition as set out in exhibit A.
[21]Exhibit D2-Two
30 Ms Potter said she was not given any warning of the danger of using the steps.
31 Evidence was given by Mr Antony Gibbons. He was the tenant, with his partner, Ms Rachael Leach, of the premises from about October 2012 until Ms Potter’s tenancy commenced. At the outset of that tenancy, a Condition Report was completed.[22] He described the condition of the premises at the beginning as “pretty disgusting”.[23] He made a number of complaints to Ms Hunter by email. He became frustrated and asked to speak to the landlord. This request was refused. After that, they stopped following up maintenance issues.
[22]Exhibit N
[23]T301
32 He said there were a lot of requests to fix things. At the conclusion of the Condition Report, he attached a four-page paper setting out concerns and complaints about the premises.[24] His overall comments in respect of the premises, as set out in the Condition Report, were:
“The house was quite filthy, carpets still stink of dog, cupboards weren't cleaned, finding massive balls of dog hair in two of them. Carpets had dog hair matted in the corners. Backyard shocking, completely unsuitable for our 2 year old to play in. A lot of maintenance issues.”
[24]That document was called for by the plaintiff in the course of the trial, but could not be located, and was not produced.
33 He subsequently emailed Ms Hunter, thanking her for undertaking some maintenance in the backyard, and sent a further list of maintenance issues, the more urgent ones highlighted in red.[25] He thought the roof over the decking at the rear was broken with a big hole in it and water leaked onto the patio. He thought that problem was eventually fixed.
[25]Exhibit O
34 In terms of the steps at the rear of the premises, he said they were rickety and old but the condition not urgent enough to raise in the email he sent. He said exhibit B best depicted the state of the stairs during his tenancy.
35 Mr Gibbons could not recall using a light over the back steps. The light in the back patio, further towards the front of the house, did work. The floodlight depicted in exhibit A was not operative as far as he could recall. There was no reference to a problem with the steps in the Condition Report. It may have been on the extra pages. He agreed that had he considered the condition of the steps at the rear urgent or dangerous, it was likely he would have reported the matter. He made no complaint about the light, the steps or that there was no handrail.
36 Evidence was given by Mr Gibbons’ partner, Ms Leach. The markings in blue pen on the Condition Report were her writing. She was annoyed because of the state of the house. She had a two-year old child with eczema. At the outset of the lease, she said that she was told that the maintenance issues would be fixed before they moved in, but they were not. She said the house was not suitable. The carpet, kitchen and backyard were a problem. The grass was high in the backyard, with pieces of metal strewn about.
37 She recalled the bottom stair at the rear of the premises had collapsed. She was shown the photographs, exhibits A and B. The stairs had never looked as depicted in exhibit A. She could not recall complaining about the state of the steps.
38 Ms Leach had no contact with Mr Yeung. All of her contact was with Ms Hunter and another woman at Santosa. Their tenancy lasted twelve months. They felt “defeated” towards the end because of the state of the premises. They were told not to complain about minor things.
39 Ms Leach could not recall complaining about the light above the steps. As to the state of the back steps, she could not recall, but it may have been contained in the four-page document. Some of the work requested to be undertaken was done by Ms Hunter. She said she and Mr Gibbons may have complained about the back steps but she could not recall. She said there were so many issues, she could not recall every one. Her main concern was the stove.
40 Evidence was given by Mr John Dimopoulos, a mechanical engineer. He provided a report of 11 July 2018.[26] He did not inspect the premises, but was provided with a number of photographs, including exhibits A and B.
[26]Exhibit Q
41 He received court pleadings, interrogatories, various reports and photographs. He was not able to identify when the premises were constructed. He noted that in 1945, the Uniform Building Regulations were introduced into Victoria. In relation to the construction of stairways, s2710(d) provided:
“(i) Treads and risers shall be of uniform width.
(ii) …
(iii)Treads and landings shall be solid and shall be so constructed as to prevent persons slipping thereon.”
42 Those Building Regulations underwent a number of changes. The 1984 Victorian Building Code, in relation to stairs, provided:
“Section 24.25
TREADS AND RISERS
Number in a flight
(1) …
(2) …
(3) The treads of a flight of stairs in a stairway shall—
(a) …
(b)be provided with a non-slip finish throughout or with an approved non-skid strip near the edge of the nosings.
… .”
43 By 1990, the Building Code of Australia came into operation and was adopted into Victoria in 1993. Clause 6.8(e) provided:
“… a stairway be constructed in accordance with the following
….
(e)treads must have a slip-resistent finish or a suitable non-skid strip near the edge of the nosings … .”
44 In relation to a handrail on stairs, the 1945 Uniform Building Regulations provided, by s2712:
“(a)Every stairway shall have a wall or a well secured balustrade or guard on each side.
(b)Every stairway when 40 inches (1000 millimetres) or less in width shall have handrails on at least one side and when more than 40 inches (1000 millimetres in width), shall have handrails on both sides.
… .
(e)Every external stairway and its landing and platforms shall be fitted with a handrail and an intermediate rail on its open sides.”
45 The 1959 Uniform Building Regulations dispensed with the requirement in clause 2712(e) and changed the wording in respect of clause 2712(a) so as to read:
“(a)Every stairway and its landing and platforms shall have a wall or a well secured balustrade or other adequate guard on each side.”
46 In 1983, the Uniform Building Regulations were amended so that the requirement to have handrails on stairways was removed. This continued until 2012 under the Building Code of Australia (“the Code”), which revoked the requirement there be a handrail on the stairway when the stairway was less than a metre in height. Mr Dimopoulos said the rear steps in this proceeding were under 1 metre.
47 He said that from the photograph provided, the timber steps appeared neglected and poorly maintained. He said that the surfaces were severely worn. He said that worn timber is more slippery than that which is freshly cut. He noted the timber steps did not have a non-slip nosing or tread material and thus were likely to become slippery when wet.
48 He noted that when the steps were replaced, they were replaced with four steps, rather than three. This would decrease the riser height and reduce the force required to climb each step. This, in turn, would reduce the coefficient of friction.
49 He noted that a handrail would be of assistance, in particular if the steps were slippery. He said a non-slip nosing or tread material would provide a better grip and reduce the likelihood of a slip occurring.
50 In cross-examination, Mr Dimopoulos accepted that in considering the various building regulations, much depended upon the date of construction of the premises. There was nothing to require premises to be brought up to date with a current Code. Mr Dimopoulos was not challenged in cross-examination as to his opinion that it appeared from the photographs the stairs were slippery.
51 Evidence was given by the first defendant, Mr William Yeung. He purchased the premises in December 1992 as an investment property. He was living in Canberra at the time. He then moved to Hong Kong and returned to Australia in 2006. He has lived in Queensland since.
52 After he purchased the property, it was managed by several real estate agents. In 2008, he retained N R Reid, estate agents, to manage the property.[27] Santosa originally traded as N R Reid & Co Watsonia. He spoke to Danelle Hunter, who described the services the agency offered.
[27]See Leasing and Management Authority, exhibit D1-One
53 The Management Authority provided that the agent was authorised to undertake urgent repairs up to $1,000.
54 Mr Yeung said he did not ever receive the Condition Reports which were between the tenant and the agent before any lease commenced. He was provided with routine inspection reports. He said he would have received the routine inspection report of December 2013.[28] There was nothing to indicate any work was required to the rear deck or stairs. The first time he became aware of any problems with the stairs was in an email after the plaintiff fell, with a quotation for repairs attached.[29]
[28]Exhibit D2-Two
[29]Exhibits F and G
55 Mr Yeung said whenever he was notified by Ms Hunter that work had to be done at the property, he always approved it. He had no contact at all with Ms Potter or Mr Eden. He received no complaints concerning the rear steps, lights or a balustrade, until after the fall.
56 It was Mr Yeung’s practice to approve all quotations. He said he relied upon Ms Hunter to tell him what needed to be done at the property.
57 Mr Yeung was taken to an email chain of communication in 2013 regarding various items at the premises.[30] He agreed he had concerns about spending money on the property when it was not necessary. He discussed whether Mr Gibbons and Ms Leach should continue beyond the initial period of their tenancy. He denied that he refused to pay for maintenance items as their rental was in arrears. Ms Hunter continued to manage the property until it was sold in January 2018.
[30]Exhibit D2-Three
58 In cross-examination, Mr Yeung could not recall when he visited the property last before the fall. He said it may have been ten years. When he purchased the property he checked it through several times. He was uncertain how often he visited the property over the years, perhaps twice or more. He had three other investment properties in Victoria and two properties in Queensland, one of which he lived in. He considered that the agent took responsibility for the state of repair of the premises. He could not recall doing any work to the stairs at the rear. He agreed that the state of the steps as shown in exhibit B indicated they were not in good repair.[31] He thought the steps were reasonably safe for use. He agreed that if the stairs were in disrepair, he would have authorised them to be fixed.
[31]T462
59 As to the truth and honesty of the agents, he said he relied upon their professional integrity because they were members of the Real Estate Institute of Victoria. He was comfortable with that accreditation.
60 When shown the stairs after they were repaired,[32] he said the handrail was placed there at the request of Ms Potter. The rest of the work carried out was determined by the tradesmen as being necessary. He did not accept that because they had been replaced, they had previously been unsafe.
[32]Exhibit C
61 Evidence was given by Ms Danelle Hunter. She is a Licensed Real Estate Agent. She commenced work with Santosa in 2002. She started in reception and then moved to sales and property management. She obtained her licence as a Real Estate Agent in 2013. She commenced managing the property in January 2008.
62 She said a Condition Report was prepared at the beginning of each new lease. These reports were not provided to the owners. In the course of the lease, routine inspection reports were prepared and provided to owners. A routine inspection report was generally carried out three months after a tenant moved into premises, and six monthly afterwards during the term of the lease.
63 Santosa provided a “pack” to tenants which included forms requesting repairs, both urgent and non-urgent.
64 In the course of the routine inspection reports, Ms Hunter said she would go into each room and to the front and rear yards of the premises to check the condition. She recalled the previous tenants, Mr Gibbons and Ms Leach. It was put to her the Condition Report was the same as that provided to Mr Eden and Ms Potter, save that in the earlier one, there were handwritten additions. She could not recall the four-page document with additional complaints said to have been provided by Mr Gibbons.
65 There was no complaint to her by Ms Potter, or the previous tenants, about the rear steps. Had that occurred, she would have communicated with them and arranged a quotation for the work.
66 In relation to Mr Yeung, she said that he did not want to spend any money on the premises and this was always an issue. She used to try to save money and would go to the premises herself where possible.
67 At the time the Condition Report in respect of Ms Potter’s tenancy was undertaken, there was no power on at the premises so she could not see which lights worked and which did not. When a new tenant would take occupation, she would use the previous Condition Report as a basis so that a new one did not have to be typed again. She said she recalled going out to the back of the premises. She recalled an outdoor deck and she went into the garage. She said there were no issues when she was there and she was able to walk on the rear steps safely.
68 She said the photographs which appear at the back of the Condition Report[33] in fact were not attached to the report at the time. She took those photographs but could not recall when. She was taken to a digital photograph[34] with a digital analysis which indicated the photograph was taken on 1 July 2007. She said that date was incorrect.
[33]Exhibit D
[34]Exhibit T
69 Mr Eden and Ms Potter did not return the Condition Report, so she sent out a letter[35] which said that amendments to the Condition Report would not be accepted.
[35]Exhibit D2-Six
70 She recalled attending at a routine inspection in December 2013. It was her practice to take notes. The tenants were in attendance. She said it was standard practice at these inspections to go to the front and back garden areas. No issues were raised by the tenants in relation to the stairs, the outdoor light or the handrail.
71 She first became aware Ms Potter had suffered an injury in a fall when she received a call from Mr Eden. He said that the stairs might need some maintenance, although it was not urgent. She arranged a quotation the same day. She could not recall whose idea it was to add a handrail. The work was carried out within a short time. She said the photographs that she took of the premises were for her records and were not part of the Condition Report. She could not recall specifically when she inspected the rear steps before Ms Potter’s tenancy, but said she would have done so. She did not think they posed any danger. She had used the steps and considered them safe. The reason they were replaced was because the tenant had rung saying there had been a fall.
72 Ms Hunter said that every time an issue arose as to maintenance or repair, Mr Yeung was very reluctant to spend money on the premises. She said houses of the age of the premises require regular maintenance, both inside and out. During her time managing the property, she did not think it had been repainted or carpets replaced. She could not recall plumbing work to the toilets or bathrooms. She thought the place was fairly original, although was not sure. She said she was doing what she could to keep the premises safe without spending a lot of money. She said that if she had tried to identify every item of damage, it would take her years.
73 She said that if the steps had been in the condition as depicted in exhibit B, she would have noted it. She would have made a record if the steps were not in good repair.
74 She did not contact Mr Yeung during the tenancy about the steps being rickety, dangerous or worn, as the tenants had not reported that to her. She said most landlords gave her a limit up to which she could use her discretion to pay for repairs. That was not the case with Mr Yeung.
Analysis of and conclusions to be drawn from the evidence as to liability
75 I found Ms Potter a witness of truth. She answered questions, particularly in cross-examination, in a responsive and forthright manner. I did not detect any exaggeration nor any attempt to embellish the evidence to suit her case. Aside from some minor matters, there were no major credit issues put to her. She was understandably vague on some issues and dates. She made concessions where it was appropriate.
76 I accept her evidence that the steps at the rear of the property leading to the back patio were, generally, as depicted in exhibit B, from at least the start of the Lease to the date of her fall. That photograph shows that the bottom step was loose and lying on the ground; however, that was not the step from which Ms Potter slipped. I accept her evidence that on the night in question, it was drizzling and dark. I accept that the overhead light depicted in exhibit A was not working, and had not worked from the commencement of the tenancy.
77 The third step from the ground as depicted in exhibit B would seem to have some green substance, but it is not clear from the photograph whether that was moss, some other substance, or an artefact of the photograph. I am unable to conclude that there was moss or some other slippery material on the step.
78 I accept the evidence of Ms Potter that at the time of her fall, the steps were “very slippery”.[36] Mr Yeung accepted that the steps, as depicted in exhibit B, were not in good repair.[37]
[36]T70, (“Line”) L18
[37]T462, L24
79 I further accept that when Ms Potter’s foot hit the slippery step, she slipped backwards and fell onto her ankle.[38] In the course of her examination-in-chief, she was asked the following:
[38]T70, L20-21
Q: “There was no handrail present at the time you fell?---
A: No.
Q:If a handrail had been present what, if any, difference do you believe that would have made in terms of your falling?---
A: I don't believe I would have fallen.
Q:If there had been a light operating over the steps where the downlight was situate (sic), what if any effect do you think that would have had on the fall that you sustained?---
A:I probably wouldn't have fallen.”[39]
[39]T70, L24-31
80 This evidence was not challenged in cross-examination.
81 The only evidence of contrast to that of the plaintiff in relation to the state of the steps, was that of Ms Hunter. She said around the time the Condition Report was prepared shortly prior to the commencement of Ms Potter’s tenancy, she recalled going to the patio and into the garage. She said there were no issues in that area, and she was able to walk into the backyard area safely on the steps. She said that had the steps been in the condition as depicted in the photograph (exhibit B), she would have noted it.[40]
[40]T545, L22
82 In relation to her attendance for a routine inspection in December 2013, she said it was her practice to go into the front and back garden areas. I am not satisfied she specifically remembers doing so.
83 To the extent there is a conflict between the evidence of Ms Potter and Ms Hunter, I prefer the evidence of Ms Potter. I accept her evidence that the step was very slippery and that caused her to miss her footing. I do not accept the evidence of Ms Hunter that she recalled there were no issues in respect of the steps at the time of the Condition Report. I do not accept she has any specific recollection of inspections at the property at that time, in particular given she was managing something in the order of two hundred properties. In addition, she would have inspected the property in daylight, and not in the conditions that Ms Potter faced on the evening of the fall. I conclude that she either did not inspect the steps or, if she did, did not notice their worn and slippery condition, nor consider what risk they would present to someone entering or leaving the backyard, in particular if it was raining or dark.
84 In relation to the evidence of Ms Potter that had there been a handrail or light present, then she probably would not have fallen, I am of the view it is difficult to say with certainty whether either would have prevented her fall. I am of the view that had a handrail been present then, given she was carrying nothing in her hands, the likelihood was, given the conditions on the night in question, she would have used the handrail to assist her ascend the stairs. By so doing, she would have reduced the risk of falling. Similarly, had there been a light at the top of the stairs shining onto the area, it would have assisted her in noting that the surface of the stairs was wet, and highlighted the worn surface. Again, it is impossible to say whether such a light would have averted the fall, but, again, I am satisfied it would have reduced the risk of Ms Potter falling as she did.
85 The evidence of Mr Dimopoulos, the engineer, was of some assistance. His examination of the various Building Regulations and Codes which applied over the years did not assist as no one could determine the age of the property and, therefore, which Regulations or Code applied. Once constructed, there was no obligation on Mr Yeung to ensure the stairs complied with the Codes as they came into force from time to time.[41]
[41]Jones v Bartlett [2000] HCA 56
86 Mr Dimopoulos did not inspect the property, but rather worked from the photographs provided. In any event, an inspection of the property would have revealed little, given the stairs were replaced with four (instead of three) stairs and a balustrade; however, even given the difficulty in assessing the condition of the steps from photographs, I do accept his evidence that given the apparent age of the steps, and the fact they did not contain any non-slip or tread material, that they were worn and slippery, in particular when wet.
87 The fact that the lower stair had become loose from the structure and was sitting on the ground was a clear indicator that the stairs had fallen into disrepair, requiring maintenance. Mr Dimopoulos said, and I accept, that had the stairs had some form of tread or slip-resistant material, that would likely have reduced the risk of slipping.[42] Had the stairs been inspected at the start of Ms Potter’s Lease by someone concerned to ensure they were safe for everyday (or night) use, I have little doubt such an inspection would have revealed the slippery and worn surface of the steps, the fact that the light was not working, and considered the provision of a handrail to assist.
[42]T416, L20-23
88 It is clear from the evidence that neither Ms Potter, nor the previous tenants, made any complaints to Ms Hunter nor, obviously, Mr Yeung, about the state of the steps, the lighting or the lack of a balustrade. It was submitted on behalf of the defendants that that failure was, itself, a measure of the relative safety of the stairs and that Ms Potter was able to ascend and descend them without any real risk of slipping. I do not accept this submission. I accept Ms Potter’s evidence that she simply did not consider the matter. That, of itself, does not mean the steps were safe and free of defects. I accept Ms Potter’s evidence that she left negotiation with the estate agent to Mr Eden. She was a person concerned with the care of her grandson and dog, and not a person readily minded to negotiate for repairs to be carried out to leased premises. Nor do I accept, as a tenant, she had any obligation to walk around the premises, inspecting it to determine whether there were any defects or slipping hazards.
89 It was put by Mr Middleton, for Mr Yeung, that it was possible that the reason the steps were wet and slippery was because of contamination on the soles of the slippers Ms Potter was wearing at the time. She had walked across the wet backyard over dirt and grass; however, I am not satisfied there is any evidence to found such a proposition. It is mere speculation.
90 In summary, I am satisfied that on the evening in question, the second or third step which Ms Potter ascended was in a worn, dilapidated and very slippery condition, wet from the light rain, and it was dark as there was no light in the immediate vicinity. Those factors were the cause of her fall. Had there been present a slip-resistant tread or nosing on the stair, a handrail or overhead light, the risk of the plaintiff falling would be significantly reduced.
Statutory breach - does the RT Act, in particular s68, give rise to a private right to common law damages?
91 The plaintiff alleges the first defendant, as owner, was in breach of s68 of the RT Act. That section relevantly provides:
“68 Landlord’s duty to maintain premises
(1)A landlord must ensure that the rented premises are maintained in good repair.
(2)A landlord is not in breach of the duty to maintain the rented premises in good repair if—
(a)damage to the rented premises is caused by the tenant's failure to ensure that care was taken to avoid damaging the premises; and
(b)the landlord has given the tenant a notice under section 78 requiring the tenant to repair the damage.
(3)… .”
92 An action may lie for statutory breach independent of negligence and even in circumstances where there was no finding of negligence.[43]
[43]Murfin v United Steel Companies Ltd [1957] 1 All ER 23
93 In O’Connor v SP Bray Limited,[44] it was held that a statutory provision which required certain safety equipment to be provided in lifts gave rise to a right of private action for breach. The plaintiff sought to claim damages for injuries sustained as a result of a lift accident at the first defendant’s premises. It was said that the statutory provision was intended to prevent harm from specific dangers which certain employees encountered in the course of their employment.[45] Dixon J noted:
“… I think it may be said that a provision prescribing a specific precaution for the safety of others in a matter where the person upon whom the duty laid is, under the general law of negligence, bound to exercise due care, the duty will give rise to a correlative private right, unless from the nature of the provision or from the scope of the legislation of which it forms a part a contrary intention appears. The effect of such a provision is to define specifically what must be done in furtherance of the general duty to protect the safety of those affected by the operations carried on. … .”[46]
[44](1937) 56 CLR 464
[45]The provision was found in clause 31(b) of the Regulations to the Scaffolding and Lifts Act 1912 (NSW)
[46]O’Connor v SP Bray Limited (supra) at 478
94 Further:
“… The received doctrine is that when a statute prescribes in the interests of the safety of members of the public or a class of them a course of conduct, and does no more than penalise a breach of its provisions, the question whether a private right of action also arises must be determined as a matter of construction. … .”[47]
[47](Supra) at 477
95 The High Court again examined the question of the existence or otherwise of statutory duty in Sovar v Henry Lane Pty Ltd.[48] Kitto J said:
“…the question whether a contravention of a statutory requirement of the kind in question here is actionable at the suit of a person injured thereby is one of statutory interpretation. The intention that such a private right shall exist is not, as some observations made in the Supreme Court in this case may be thought to suggest, conjured up by judges to give effect to their own ideas of policy and then ‘imputed’ to the legislature. The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation. … .”[49]
[48](1967) 116 CLR 397 at 404-405
[49](Supra) at 405, citing Martin v Western District of the Australasian Coal and Shale Employees’ Federation Workers’ Industrial Union of Australia (Mining Department) (1934) 34 SR (NSW) 593 at 596
96 In Byrne & Frew v Australian Airlines Ltd,[50] the High Court considered an industrial award made pursuant to the Industrial Relations Act 1988 (Cth) which imposed a penalty for its breach. The Court determined it did not give the aggrieved worker a cause of action for statutory breach against the employer. The Court said:
“A cause of action for damages for breach of statutory duty arises where a statute which imposes an obligation for the protection or benefit of a particular class of persons is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage … .”[51]
[50](1995) 185 CLR 410
[51](Supra) at 424
97 In Gardiner v State of Victoria,[52] the Victorian Court of Appeal considered whether breach of a provision of the Accident Compensation Act 1985, which required an employer to provide employment to an injured employee during a specified period, gave the employee a statutory right to private action. Breach of the provision provided a criminal penalty. Phillips JA (with whom Winneke P agreed), said:
“The fundamental task, then, is to determine whether the statute evinces an intention that the individual should have a right of action for breach of the statutory duty. … .”[53]
[52][1999] 2 VR 461
[53](Supra) at paragraph [24]
98 Further, Phillips JA said:
“Thus it is often asked whether, upon a proper consideration of the scope and purpose of the statute as a whole, it can be said that the Act which contains the particular obligation at issue was passed primarily for the general good; for if the statute as a whole can fairly be characterised as passed primarily for the general good rather than for the benefit or protection of some only within the wider community, that is nowadays regarded as pointing strongly against a Parliamentary intention that an individual should be able to sue for non-compliance with some particular provision. … On that footing, legislation providing for the general regulation of prisons has been held to give no private right of action for breach, though such legislation doubtless operated, at least in part, to protect the inmates: R v Deputy Governor of Parkhurst Prison ex parte Hague [1992] 1 AC 58. So too, social welfare legislation, setting out the duties of authorities relating to the protection of children against abuse, has been held to create no private right of action: X v Bedfordshire County Council [1995] 2 AC 633.”[54]
[54](Supra) at paragraph [24]
99 In Toomey v Scolaro’s Concrete Constructions Pty Ltd (in liq) & Ors (No 2),[55] Eames J was concerned with a claim for damages for injuries sustained when a plaintiff fell over a balustrade at residential premises. The balustrade was found to be several inches short of the height required by the Building Code. His Honour said:
“Breach of a statutory safety requirement may constitute some evidence of negligence in those who had a duty of care to persons affected by the provision. The plaintiff contends that that is so in the present case, but also contends that a separate cause of action is created by virtue of the breach … of the Code. Where a statute or Regulation prescribes in the interests of the safety of members of the public or a class of them a course of conduct and does no more than penalise [for] a breach of the provisions, then, as Dixon J held in O’Connor v S P Bray Ltd, the question whether a private right of action is also created must be determined as a matter of construction of the relevant legislation.”[56]
[55][2001] VSC 279
[56](Supra) at paragraph [125]
100 His Honour concluded that the nature and scope of the Code and the legislative framework of which it formed part, supported the inference that it was intended to create a private right of action. Among the objects of the Code was “to protect the safety and health of people who used the buildings”. His Honour interpreted that to mean to protect users from the risk of falling. He noted that the intention of the Code, as set out in its objects, was similar to that considered by the High Court in O’Connor, where there was a requirement that “safety gear” must “securely hold the car or platform in position”.
101 In Matthews v SPI Electricity Pty Ltd; SPI Electricity Pty Ltd v Utility Services Corp Ltd (Ruling No 2),[57] J Forrest J said:
“… the question as to whether a statute confers a private right is one of construction and not dependent upon a substratum of facts. … .”[58]
[57](2011) 34 VR 584
[58](Supra) at paragraph [64]
102 Having considered the authorities, his Honour said two questions emerged which had to be answered in the affirmative if a private right of action was to exist for statutory breach. These were:
(a) Did the legislature in enacting the [relevant legislation] intend to impose an obligation on occupiers in relation to the safety of [electrical installations] on their premises?
(b) Did the legislature intend to confer a private right upon an individual so that he or she could sue for non-compliance?
103 In considering the second question, it was necessary to determine whether the legislation was intended to benefit a particular class of persons as opposed to the community in general. His Honour said:
“These are both questions of statutory construction. The answer to these questions requires analysis of the purpose and intention of the Act having particular regard to the stated objectives within the legislation itself. In determining the intention of the legislature, and bearing in mind the provisions of the Interpretation of Legislation Act (Vic) 1984, one examines the nature, scope and terms of the statute, including the particular evil against which it is directed, the nature of the conduct which is prescribed and the pre-existing state of the law and the general circumstances surrounding the introduction of the particular provisions.”[59]
[59](Supra) at paragraph [69]
104 No counsel in the present case addressed in any detail the purpose or purposes of the RT Act and whether safety of tenants in using residential premises was one of them.
105 The “main purposes” of the RT Act, as set forth in s1, relevantly are:
“(a)to define the rights and duties of landlords and tenants of rented premises; and
(b)…
(c)…
(d)to provide for the inexpensive and quick resolution of disputes under this Act; and
… .”
106 Neither the Second Reading speeches nor the Explanatory Memorandum sheds any light on the intention or meaning of s68.
107 Presuming for a moment the landlord did not maintain the premises in ‘good repair’, the RT Act does not provide a fine nor other sanction for breach of s68. Section 509 of the RT Act provides that various courts, including the County Court, has jurisdiction to hear and determine applications under s510. Section 510 provides:
“(1)A person may make an application under this section to a court referred to in section 509 in relation to any matter arising in relation to—
(a) a tenancy agreement of premises situated in Victoria; or
…
being an application that, if made to the Tribunal, the Tribunal would, but for section 447, have been entitled to hear and determine.
… .”
108 Section 447 provides that “the Tribunal” (that is the Victorian Civil and Administrative Tribunal – “VCAT”) may not hear and determine an application for compensation which exceeds $10,000, save in certain circumstances. Most disputes between landlords and tenants are conducted at VCAT, although most of those disputes relate to issues which arise in the course of a lease, and not to a claim for personal injuries arising out of the state of the premises.
109 It is clear the RT Act does not expressly confer a private right of damages for injury which occurs on residential premises. Of significance is that the purposes of the RT Act includes to define the rights and duties of landlords and tenants and to provide an inexpensive and speedy resolution process in relation to those disputes. The legislation addresses the rights and duties of both landlords and tenants. Section 35 of the Interpretation of Legislation Act 1984 provides that the legislation should be interpreted to promote the purpose or object underlying the Act. Section 68 requires that rented premises be maintained in good repair. There is nothing in that section, nor otherwise in the RT Act, which refers to that “good repair” being undertaken so as to prevent risk of injury, or generally as to the safety of tenants or other persons on the premises.[60] The general intention of the RT Act is, in relation to repair, to require landlords to keep the premises in good repair so that tenants, providing they pay the rent, may enjoy residential accommodation of a certain standard. It is the intention of the legislation that in the event the landlord does not abide her/his obligation, there is recourse to VCAT so that the matter can be addressed.
[60]In Shields v Deliopoulos [2016] VSC 500, Daly AsJ defined “good repair” in s68 to mean “tenantable repair” or “reasonably fit and suitable for occupation” (at paragraph [38])
110 The duty referred to in s68 is expressed in broad terms and does not proscribe a specific precaution or define what must be done in furtherance of the duty. There is nothing specifically in the section about safety. There would be many aspects of the state of premises which might be said to breach s68 which would not be regarded as safety issues. Parliament cannot be said to have intended that such a broadly-stated duty encompassing a wide range of defects, not all of which would result in injury, would give rise to a private cause of action.
111 Part 5 of the RT Act provides for “compensation and compliance”. It states, among other things, that a person may apply to VCAT for appropriate orders when it is alleged there has been a breach of a notice rendered under the RT Act. VCAT has powers to order compensation in respect of a breach. Section 210 provides for a party to a tenancy agreement to apply to VCAT for an order for payment of compensation where it is alleged there has been a breach of the agreement. No part of that section, nor any other of the sections contained within Part 5, suggest there is any private right to seek compensation for injury sustained through the state of premise.
112 In my view, s68 is concerned to ensure that landlords generally abide the obligation contained in the legislation, with a right of tenants to seek redress at VCAT if they do not. That redress was not intended to be compensation for injury but for an order that premises be repaired or maintained in a particular manner. There is nothing in the way of specific safety regulation, such as equipment in lifts, or balustrades at a certain height to prevent falling. Section 68 is a general provision, making a statement of policy. It is intended to benefit a wide class of persons, being landlords and tenants, and is not addressed to a certain class, in particular, to protect the safety of that class.
113 I am satisfied, from an examination of the RT Act, that it was legislation which was not intended to give a private right for compensation for injury suffered in relation to rented residential premises.
114 The plaintiff’s claim for statutory breach should be dismissed.
Was the admitted duty of the owner able to be delegated to the agent, and did such a delegation take place?
115 Jones v Bartlett[61] was concerned with a claim by the adult son of tenants of residential premises who walked through a plate glass door, suffering injury. The majority of the High Court said they did not consider the landlord’s duty was personal and therefore non-delegable. Kirby J considered that after Northern Sandblasting v Harris,[62] it was clear that –
“… a landlord may ordinarily discharge its duty by delegating such inspection and repair to a competent person.”[63]
[61]Supra
[62](1997) 188 CLR 313
[63](Supra) at paragraph [237]
116 Similarly, Gaudron J said she considered the duty as delegable and said the duty owed by a landlord was “a more general duty of care” as opposed to the owed “non-delegable duty” referred to in Northern Sandblasting.
117 Callinan J urged caution against extending a range of non-delegable duties. Gummow and Hayne JJ said:
“The content of the landlord’s duty in a case such as the present is not one of strict liability, to ensure an absence of defects or that reasonable care is taken by another in respect of existing defects. It is not a duty to guarantee that the premises are safe as can reasonably be made.”[64]
[64](Supra) at paragraph [193]
118 They held that the landlord’s duty was not personal and non-delegable as the landlord-tenant relationship did not exhibit the indicia that trigger a non-delegable duty.
119 Earlier, in Northern Sandblasting, Dawson J noted the duty might be personal and non-delegable where hazardous activities were carried out upon the premises, noting that the duty would not arise out of the relationship, but out of the nature of the activities. He was of the view that the supply of electricity to the domestic premises was not a hazardous activity.
120 I conclude from the comments in both Northern Sandblasting and Jones, that in a case such as the present, the duty of the landlord in respect of the premises is capable of being delegated. The present case is not one where the nature of the harm is particularly hazardous or dangerous.
121 The real question is, in the circumstances that existed at the time of Ms Potter’s fall, and given the history of Mr Yeung’s involvement in the premises, whether the owner’s duty is delegated.
122 Mr Yeung lived interstate throughout the time of Ms Potter’s tenancy, and for a number of years before. He said he handed management of the property to Ms Hunter and trusted the estate agency as it was accredited by the Real Estate Institute of Victoria. Neither Ms Potter nor Mr Eden had any contact with Mr Yeung. He was not made aware of any concerns as to state of the premises, and no complaint was made about the rear stairs. He inspected the property on several occasions over the years. He could not recall precisely whether he had inspected it within ten years before the fall.
123 The process for repairs to be carried out was for Ms Hunter to notify Mr Yeung that repairs were needed and money had to be spent. The first time he became aware of any problem with the stairs was when he was advised by email from Ms Hunter that the plaintiff had fallen and he approved the repairs carried out subsequently.
124 Ms Hunter, in the course of her evidence, was critical of Mr Yeung for not wanting to spend money on the premises which, because of its age, required regular maintenance and repair. She said it was very difficult to get approval for maintenance items.[65] She said he was very tight-fisted when it came to spending money on recommended improvements.[66] She considered the premises fairly original and could not recall money being spent on plumbing, repainting, replacement of carpets, or work to the bathrooms. She said she did what she could to keep the premises safe without the need to spend much money.
[65]T533, L8
[66]T537, L28
125 According to the Management Authority,[67] the agent contracted with Mr Yeung to endeavour to lease the property for the payment of a fee. The agent was obliged to “manage the property”. Mr Yeung warranted to the agent that the property was not in a dangerous condition. Beyond that, the Agreement spoke little of the obligations, respectively, of the owner and the agent. Clearly, Ms Hunter was responsible for obtaining tenants to lease the property, receiving the rent, arrange repairs (subject to the authorisation of Mr Yeung) and inspecting the property for the purpose of condition reports and routine inspection reports.
[67]Exhibit D1-One
126 In Bevillesta Pty Ltd v Liberty International Insurance Co,[68] Hodgson JA (with the concurrence of Gyles AJA and Nicholas J), said:
“There is no doubt also that this occupier’s duty of care is ‘delegable’, in the sense that it May be discharged in whole or in part by the occupier’s exercise of reasonable skill and care in engaging someone else to take steps to keep the property safe either generally or in particular respects. Discharge of the duty in this way requires reasonable skill and care in the selection of the other person, in arranging the terms of engagement of that person, and in confirming that the person does take appropriate steps. If it is reasonable for an occupier to seek to discharge or partly discharge the occupier’s duty in this way, and the occupier does exercise reasonable skill and care in all these respects, then if a person coming on to the property is injured due to the failure of the other person engaged to exercise reasonable skill and care to keep the property safe, the occupier May escape liability.”[69]
[68][2009] NSWCA 16
[69](Supra) at paragraph [53]. See further, Laresu Pty Ltd v Clark [2010] NSWCA 180
127 In Libra Collaroy Pty Ltd v Bhide,[70] the New South Wales Court of Appeal was concerned with a claim for injury when an oregon timber balcony collapsed at residential premises. Over a period, the tenants had complained about the structural integrity of the balcony to the managing agent, and various repairs were carried out. The agent retained a carpenter, who provided a quotation on the very morning when the balcony collapsed, causing injury. The trial judge found the owners had discharged their duty of care to the agent. On appeal, the Court said that although the duty had initially been delegated, given the complaints about the integrity of the balcony over a period of time, the owners ought to have directed the agent to engage an expert to investigate the structural integrity of the balcony, in particular, given the carpenter retained did not have the necessary expertise to carry out the work. The Court said:
“The landlord is not subject to a non-delegable duty of care, or, to put the point in positive language, the landlord’s duty of care is delegable ‘in the sense that it may be discharged in whole or in part by the [landlord’s] exercise of reasonable skill and care in engaging someone else to take steps to keep the property safe either generally or in particular respects and in confirming that the person does take appropriate steps. Accordingly, if it was reasonable for a landlord to seek to discharge or partly discharge the landlord’s duty in this way, and the landlord did exercise reasonable skill and care in all these respects, then if a person coming on to the property was injured due to the failure of the other person engaged to exercise reasonable skill and care to keep the property safe, the landlord may escape liability.”[71]
[70][2017] NSWCA 196
[71](Supra) at paragraph [179]
128 In Libra, the owners of the property went there about once a year to see that it was well maintained. On those occasions, they saw nothing wrong with the decking. The Court further said:
“However for reasons I explain when dealing with the Bhides’ breach of duty, the finding that they initially delegated their duty of care to Elders does not absolve them of liability as, in my view, they ought, at least by 2010, have formed the view that Elders had not discharged, and was not discharging, its delegated duties competently.”[72]
[72](Supra) at paragraph [193]
129 In submissions, Mr Ingram, for the plaintiff, contended that in the circumstances of this case, duty had not been delegated given the degree of control maintained by Mr Yeung over the responsibility for the performance of the maintenance tasks carried out by the agent. In particular, any repairs to the premises, even those under $1,000, had to be authorised by Mr Yeung, unless urgent. Further, the evidence of Ms Hunter was to the effect that Mr Yeung was very reluctant to adequately maintain and repair the premises, and complained about the expenditure of even small amounts of money.[73]
[73]See chain of emails – exhibit D2-Three
130 Mr Madder, for Santosa, said that the tasks carried out by the agent, including collecting the rent, selection of tenants, carrying out routine inspections and preparing condition reports and obtaining quotations for maintenance, did not involve any particular skill or expertise. In essence, the agent was in no better position than was Mr Yeung to carry out those tasks. It was not a case, said Mr Madder, where a property owner, not having sufficient expertise, retained and relied upon an engineer to assess the structural integrity of a balcony. If the steps at the rear of the property posed a hazard (which Mr Madder said they did not), then Mr Yeung was perfectly capable of attending the property, identifying the hazard and arranging for it to be made good.
131 Mr Madder submitted that the managing agent would rarely, if ever, be an occupier of the premises and therefore did not have the same degree of control over the premises or of maintenance and repairs to be carried out, as would the owner. He said Santosa’s duty was limited to certain management tasks in respect of the property. It did not include carrying out, for example, a safety audit (as was suggested by Mr Dimopoulos).
132 Mr Middleton, for Mr Yeung, noted that from 2008, the management of the property, including collecting rent, arranging inspections and attending to maintenance items, both urgent and non-urgent, was undertaken by Santosa. Mr Yeung resided interstate or overseas and it was clear he relied heavily on Santosa, which had an appropriate accreditation. He emphasised that Ms Hunter was responsible for carrying out condition reports and routine inspection reports which were, in part at least, designed to check for defects in the property. He said that Mr Yeung had not refused to pay for any repairs to the property and was not made aware of any problems with the rear steps. In those circumstances, he submitted, the duty which the owner had in respect of the premises was delegated to the agent.
133 It is clear that Mr Yeung relied upon Santosa to carry out a range of tasks relating to the management of the property and its occupation by tenants. The question then is whether the duty to take reasonable care in relation to the state of the stairs, that Mr Yeung, as owner, owed to Ms Potter, was delegated to Santosa?
134 It is clear Mr Yeung went to inspect the property only rarely; he thought, perhaps, on only a few occasions over the years from 1992. It is also clear that while the age of the property could not be precisely determined, it was at an age where it required reasonably regular maintenance and repair. In my view, Mr Yeung cannot wash his hands of all responsibility in respect of the state of rented premises. While clearly he relied upon Santosa to arrange tenants and inspect the premises, premises of that age may be the subject of a range of defects from, on the one hand, substantial structural problems, through to electrical and plumbing issues and down to more superficial problems, including the state of the rear steps. In the modern environment, there is an obligation, in my view, upon a landlord to attend premises from time to time and have regard to that range of possible defects. The relationship of landlord and tenant is very much a two-way street. The tenant has the obligation to take reasonable care of the premises and pay the rent, but the landlord has the obligation to ensure that persons upon the premises, including tenants, are not injured by reason of the state of the premises, or of things done or not done in relation to the state of the premises. That obligation is not one which can be met by simply saying that the matter is in the hands of real estate agents. I accept Mr Madder’s submission that, in relation to potential defects, the agent is in no better position than the landlord to identify them. The agents are not builders, engineers, plumbers nor electricians. They do not have the expertise to determine a range of defects and hazards which may occur at a rented property.
135 As I have said, I am satisfied that the steps at the rear of the premises did represent a slipping hazard. It was a hazard that ought to have been seen and assessed by the agent in the course of the various inspections, and been the subject of a report to Mr Yeung to carry out repairs; however, I am of the view that Mr Yeung could not abrogate his responsibility in relation to those steps in circumstances where he rarely, if ever, attended the property. He ought to have attended on a more regular basis to inspect the property and to make an assessment. This ought to have occurred on a reasonably regular basis, perhaps at the outset of a new lease. Older houses need some form of reasonably regular inspection by an owner when they are tenanted, with an eye to uncovering anything which may constitute a hazard and cause injury. That was not done by Mr Yeung.
136 In the circumstances of this case, I am not satisfied the duty Mr Yeung owed, either in general negligence, or as an occupier under the provisions of the Wrongs Act in relation to the area at the rear of the premises, was delegated to the agent.
What was the nature and extent of the owner’s duty, and was there a breach of that duty?
137 As occupier of the premises, Mr Yeung owed a duty:
“… to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.”[74]
[74]Section 14B(3) of the Wrongs Act 1958
138 Pursuant to s14B(4) of the Wrongs Act, in determining whether that duty of care has been discharged, the Court is required to consider, relevantly:
“(a) the gravity and likelihood of the probable injury;
(b) …
(c) the nature of the premises;
(d) …
(e) …
(f)the ability of the person entering the premises to appreciate the danger;
(fa) …
(fb) …
(g)the 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.”
139 In essence, the general duty in negligence is the same as the occupier’s duty.[75]
[75]Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
140 In his submissions, Mr Ingram said the plaintiff was not given any warning as to the state of the stairs. There was no evidence that since Mr Yeung purchased the property in 1992 any work had been carried out to the stairs, nor the area generally. Mr Yeung did nothing to inspect or maintain the integrity of the stairs.
141 He said the risk of injury posed by the stairs was of sufficient gravity and likelihood to warrant a response, and the cost to remediate the problem, $572.00, was modest. It was foreseeable that at night, in wet conditions, a tenant would use the stairs without the assistance of lighting or a handrail.
142 Mr Middleton, for Mr Yeung, while acknowledging that the steps were weathered, said it was impossible to say whether they were inherently slippery upon casual observation. He noted that the Uniform Building Regulations did not require the provision of a handrail.
143 He said it was important to note that at no time did Ms Potter, her co-tenant, nor the previous tenants, notify the agent about any concerns in relation to the steps or lighting. In those circumstances, he submitted there could be no breach, nor was it foreseeable that someone might suffer injury in ascending the stairs. The tenants themselves were in the best position to make an assessment and complain if the steps were in a slippery or dangerous condition.
144 Mr Middleton said that while the photograph showed the bottom step laying on the ground, that was not the stair from which the plaintiff slipped. He urged caution in relation to the opinion of Mr Dimopoulos, who had worked from photographs which were not particularly clear.
145 He said the Lease emphasised that any damage of which the tenant becomes aware should be notified to the landlord as soon as practicable. The plaintiff had failed to establish a breach of the duty of care owed to her by the owner.
146 Part X of the Wrongs Act codifies the extent of the duty of care and breach. Section 48 provides, relevantly:
“(1)A person is not negligent 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.
(2)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.
(3) For the purposes of subsection (1)(b)—
(a)insignificant risks include, but are not limited to, risks that are far-fetched or fanciful; and
(b)risks that are not insignificant are all risks other than insignificant risks and include, but are not limited to, significant risks.”
147 Section 49 of the Wrongs Act relevantly provides:
“In a proceeding relating to liability for negligence—
(a) …
(b) …
(c)the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.”
148 Section 56 provides:
“(1)In any proceeding where, for the purpose of establishing that a person (the defendant) has breached a duty of care owed to a person who suffered harm (the plaintiff), the plaintiff alleges that the defendant has—
(a) failed to give a warning about a risk of harm to the plaintiff; or
(b) failed to give other information to the plaintiff—
the plaintiff bears the burden of proving, on the balance of probabilities, that the plaintiff was not aware of the risk or information.
(2)Subsection (1) does not apply to a proceeding on a claim for damages in respect of risks associated with work done by one person for another.
… .”
149 I bear in mind these provisions in coming to the conclusion as to whether Santosa, or Mr Yeung, have breached the duty owed to Ms Potter.
150 As earlier stated, I am satisfied that at the commencement of Ms Potter’s lease, and on the day of the fall, the second and third steps were worn and slippery, and it was foreseeable that a person ascending or descending the steps, in particular at night when it was wet, would fall due to the state of the steps.
151 What then was the scope of the duty of Mr Yeung?
152 As already stated, I am of the view an owner cannot simply wash his hands of his obligations to inspect the premises, and rely on the agent. Both the RT Act, by s68, and clause 2 of the Lease, require the landlord to ensure the premises are maintained in good repair. While I deal with the application of that term of the Lease, and the statutory duty elsewhere, nonetheless, those statements inform, to some extent, the duty of care owed by the landlord.
153 In Shields, Daly AsJ examined the meaning of s68 of the RT Act, and said:
“I also agree that the term ‘good repair’ means ‘tenantable repair’, or ‘reasonably fit and suitable for occupation’, and that while what amounts to ‘good repair’ may be referrable to the age and character of the relevant premises, it cannot ordinarily be qualified by the state of repair at the commencement of the tenancy, regardless of the state of repair. Again, the obligation to maintain rental premises in good repair imports an obligation to put them in good repair in the first place. Further, the obligation of a landlord cannot be diluted by charging a low rent.
I accept that the proposition that a landlord’s obligation under s 68 may be qualified by either the condition of the premises at the commencement of the tenancy, or the level of rent charged, is inconsistent with the duty imposed at common law to take reasonable care to put and keep rental premises in a safe state of repair. As noted by senior counsel for the tenant, it would be no answer to a claim that a landlord had breached their common law duty to maintain the premises in a safe condition to say that the premises had been unsafe at the commencement of the tenancy.
… In Australian Mutual Provident Society v 400 St Kilda Road Pty Ltd,[76] McGarvie J approved the following statement of Denning LJ in Morcom v Campbell Johnson[77] concerning the distinction between improvements and repair:
‘If it is only replacement of something that is already there, which has become dilapidated or worn out, then, albeit that it is a replacement by its modern equivalent, it comes within the category of repairs and not that of improvements.’”[78]
[76][1990] VR 646 at 665
[77][1956] 1 QB 106, 115
[78](Supra) at paragraphs [38]-[40]
154 I am satisfied that the extent of the landlord’s duty included an obligation to put the premises in good repair. Put another way, the obligation of the landlord was to ensure that the state of the premises was such that a person coming onto them would not be injured by reason of the state of the premises, or of things done, or omitted to be done, in relation to the state of the premises. That obligation, as Daly AsJ noted in Shields, was one to put the premises in good repair at the commencement of any lease.
155 The premises were of an age when maintenance was required. That was the evidence of Ms Hunter. There was no evidence of any significant maintenance being undertaken to the premises at any time during the course of Mr Yeung’s ownership. In those circumstances, in particular when premises were being offered for lease to tenants, I am satisfied there was an obligation upon Mr Yeung to inspect the premises, including the rear stairs, at least at the outset of Ms Potter’s tenancy (and probably other tenancies, depending on their length), to ensure the premises were in reasonable tenantable repair. This is not a situation where the defect was latent. It would require no particular expertise to discover the state of the stairs or lighting.
156 Given the slippery and worn state of the stairs, as I have already observed, an inspection by the owner ought to have revealed they needed attention or repair, and that the lighting over the steps ought to have been working and, if not, replaced, then a handrail be put there to assist persons ascending and descending the stairs. The owner did none of these things. He was in breach of the common law duty. But for his negligence, the fall would not have occurred.
What was the nature and extent of the agent’s duty and was there a breach of that duty?
157 It is clear Santosa owed Ms Potter a duty to take reasonable care in respect of the state of the premises against the foreseeable risk of injury.
158 Mr Ingram contended that Ms Hunter, or others from Santosa, failed to adequately inspect the premises. Had that occurred, he said, the obvious slippery state of the stairs would have been identified and steps taken to repair them. Likewise, she ought to have been aware of the fact that the light was not operating, even accepting that it was likely that at the time of the Condition Report, there was no electricity to the premises. Likewise, the provision of a handrail. He said that commonsense dictated that given the dilapidated state of the stairs as set out in exhibit B, it must have been some considerable time over which the stairs had deteriorated without any maintenance. He submitted it was foreseeable that the steps would be in a dangerous and slippery condition, in particular when a person walked up them at night when it was wet.
159 Mr Madder noted the scope of the duty of care, whether in respect of the owner or the agent, was not one of strict liability to ensure the absence of all defects in premises. He said the duty could be discharged by the exercise of reasonable care, which, he submitted, Santosa, through Ms Hunter, had taken in the circumstances.
160 He referred to s48 and s49 of the Wrongs Act. Neither at the condition report inspection of September 2013, nor the routine inspection of December 2013, did the tenants point out any defect with the steps, the lighting or the need for a balustrade. Thus, the sole case against the agent was, when inspecting the property, Ms Hunter ought to have seen the condition of the step and foreseen the risk of injury whereby a tenant may slip and fall. As to whether there had been a breach, it should not be approached with the benefit of hindsight. The state of the stairs was not sufficient for the previous tenant, Mr Gibbons, to make any complaint, although he described them as “a bit rickety”.
161 Mr Madder noted that Ms Potter used the stairs on a regular basis, including probably on occasions when it was raining. He noted the warning in s49(c) of the Wrongs Act that the subsequent taking of action did not, of itself, constitute an admission of liability.
162 Mr Madder said that Mr Dimopoulos’s comments were based largely on hindsight, relying on photographs which were far from clear, and without the benefit of an inspection. He said that evidence should carry little weight.
163 After the plaintiff’s fall, Ms Hunter promptly arranged for repairs to be carried out to the steps which included the provision of four, rather than three, steps. Further, a balustrade was erected, however s49(c) of the Wrongs Act makes it plain that that, of itself, does not constitute an admission of liability, nor does it give rise to liability in respect of the risk, although it is a matter to be taken into account in the scheme of things. Obviously, the costs associated with obviating the risk were modest.
164 The real issue in respect of the agent was whether, in the course of Ms Hunter’s inspection in September 2013 and again in December 2013, she ought to have noted the condition of the stairs and foreseen, in those circumstances, there was risk that the plaintiff might slip on the stairs. I bear in mind the various provisions of the Wrongs Act to which I have referred. Given the state of the stairs, I am satisfied that the risk of someone slipping was foreseeable and was not insignificant. Were a person to slip, there was a risk they might suffer a significant injury, as occurred to the plaintiff.
165 I am of the view that had Ms Hunter inspected the steps, it would have been relatively obvious they were in a dilapidated, worn and slippery condition, in particular if wet. The fact that the bottom step was lying on the ground was a clear marker of the need for maintenance generally.
166 Further, inspection of the lighting in the area ought to have revealed that the light was not working, if not in September 2013, then in December 2013. That ought to have indicated to Ms Hunter that, particularly at night, it would be difficult for anyone ascending or descending the stairs to see where they were going. Given the state of the steps, it would have been reasonably obvious the provision of a balustrade would have helped reduce the risk.
167 As Ms Hunter said in evidence, the property was of an age where it required work to be carried out on it. The fact of the property’s age and that little work had been carried out ought to particularly have alerted Ms Hunter to be on the lookout for things such as slipping hazards.
168 It would have been relatively simple, once the hazard was observed, to arrange for a quote to be undertaken, and for the repair to be effected. Had that occurred, I am satisfied that the risk of slipping would have been obviated. But for that negligence, the injury would not have occurred. I am satisfied the agent breached its duty of care to Ms Potter.
Contractual breach – was the First Defendant in breach of the clause of the Lease to make sure the premises were maintained in good repair?
169 If I am wrong in my finding that Mr Yeung breached the duty of care owed to Ms Potter, then I will examine as to whether he was in breach of the relevant provision of the Lease.
170 The Lease, by clause 2, provided:
“Condition of the premises
The landlord shall make sure that the premises are maintained in good repair.”
171 It has long been the case that damages for personal injuries at common law are available for breach of contract.[79]
[79]Australian Knitting Mills Limited v Grant (1933) 50 CLR 387; Seddon N C & Bigwood R A, Cheshire & Fifoot Law of Contract (11th Australian ed, LexisNexis Butterworth, 2017), 23.18
172 Mr Middleton did not seek to argue that damages for personal injury were not available for a breach of the Lease. He said the evidence failed to establish that the landlord had failed to maintain the premises in good repair. He emphasised that clause 3(c) of the Lease required the tenant, upon becoming aware of damage to the premises, to notify the landlord as soon as practicable.
173 Clause 13 required the tenant to notify the landlord or the agent upon becoming aware of any defects in the premises.
174 Clause 30 required the tenant, at his or her expense, to replace all lighting, tubes and globes to the premises which become defective during the term of the tenancy, unless the defect is proven to be caused by faulty wiring.
175 Clause 30 has no application, as I am satisfied, on the evidence, that the light near the rear stairs was not operating from the commencement of the tenancy.
176 Likewise, neither clause 3(c), nor clause 13 have application. Clause 3(c) is directed to damage which occurs during the course of the tenancy. Likewise, clause 13 is concerned with defects at the premises. Logic dictates there is no utility in a tenant notifying a landlord of defects which were present prior to the commencement of a tenancy.
177 The real question is whether the landlord breached the Tenancy Agreement by failing to make sure that premises are maintained in good repair. As was said by Davy AsJ in Shields:[80]
“… ‘good repair’ means ‘tenantable repair’, or ‘reasonably fit and suitable for occupation’.”
[80]Shields v Delipoulos (supra) at paragraph [38]
178 I respectfully agree with her Honour’s assessment that the obligation to maintain rental premises in good repair is an obligation upon a landlord to put them in good repair at the commencement of a Lease.
179 Given my findings as to the slippery, worn and dilapidated state of the rear stairs and the dysfunction of the light nearby, does that mean the premises were not in good repair?
180 The age of the building is a matter to be taken into consideration. The building was clearly some decades old and, in the absence of evidence to the contrary, there is an inference to be drawn that no work had been carried out on it for a considerable period. It must have been foreseeable to Mr Yeung that the rear stairs would be used for access to, and egress from, the backyard area, including at night and when it was raining. If those stairs were not in good repair, there was a clear risk someone would slip and suffer injury, as subsequently occurred. The Lease says:
“The landlord shall make sure … .”
(Emphasis added).
181 That phrase imports a mandatory obligation upon the owner. In my view, the state of the stairs and the failure to provide lighting meant that that part of the premises was not in good repair. The state of part of the premises which was sufficiently worn and slippery to give rise to a real risk of injury can hardly be said to be premises which are in “good repair”.
182 In Gration v C Gillan Investments Pty Ltd,[81] the Queensland Court of Appeal noted, in respect of a statutory provision which required that a lessor “must maintain the premises … in good repair”, that:
“… On that approach s 103(2) obliges the lessor to take steps to ascertain and satisfy himself that the premises are in a state of good repair at the start of the tenancy; the lessor cannot sit back and say that as the previous tenant has not complained of any defect therefore the premises must be in a state of good repair. The use of the term ‘ensure’ obliges the lessor to take reasonable steps to ascertain and satisfy himself that the premises are in good repair at the start of the tenancy.”
[81](2005) 2 Qd R 267
183 In Jones,[82] Gummow and Hayne JJ said:
“… 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.”[83]
[82](Supra) at paragraph [8]
[83](Supra) at 215
184 Their Honours expanded:
“…. The duty requires a landlord not to let premises that suffer defects which the landlord knows or ought to know make the premises unsafe for the use to which they are to be put. The duty with respect to dangerous defects will be discharged if the landlord takes reasonable steps to ascertain the existence of any such defects and, once the landlord knows of any, if the landlord 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.”[84]
[84](Supra) at paragraph [173]
185 In Cooke v Cholmondeley,[85] Kindersley V-C, said:
“…in such a state that they may be fit for use and enjoyment. They must be put in such a state of repair as will satisfy a respectable occupant using them fairly … .”[86]
[85](1858) 4 Drew 326
[86](Supra) at 328
186 Likewise, Lord Esher, in Proudfoot v Hart,[87] said that the age and character of the house must be taken into account.[88] He went on to say that the house “need not be put into perfect repair. … it need only be put into such a state of repair as renders it reasonably fit for the occupation of a reasonably minded tenant ...”.[89]
[87](1890) 25 QBD 42 at 50-53
[88](Supra) at 52
[89](Supra) at 52-53
187 The obligation imposed by Clause 2 requires the landlord to take reasonable steps to ensure the premises are in good repair at the outset of the Lease. I am satisfied that the state of the stairs and the lighting at the outset of the Lease, and at the time of Ms Potter’s fall, meant that the rear steps were not in good repair; to the contrary, they were worn, slippery and degraded.
188 As such, Mr Yeung was in breach of the Lease.
Was the Plaintiff contributorily negligent?
189 The defendants allege contributory negligence against the plaintiff.
190 Mr Middleton says the plaintiff should bear primary responsibility for the accident on the basis that:
(a) she was or should have been aware of the nature and condition of the steps;
(b) she used the steps on a daily basis;
(c) she was aware that it was dark and raining and she was wearing slippers;
(d) she may have been hurrying to avoid the drizzling rain;
(e) she had never made a complaint about lighting or the steps to either defendant.
191 Mr Madder emphasised that this was not a case where the steps constituted a hidden defect. He said Ms Potter was in at least as good if not a better position as the defendants to know the condition of the steps. At any time, Ms Potter could have easily made contact with the agent to report the condition of the steps or that the outdoor light was not working. He said Ms Potter was on notice of the need to review the state of repair of the premises given the requirements that a Condition Report be completed and returned to the agent. He noted Ms Potter had rented properties before. He said it was a provision of the RT Act she was required to report damage of which she became aware. If, as she alleged, the owner and agent each had a duty to inspect the premises, Ms Potter was under no less a duty.
192 In essence, the claim of the defendants is that if there was a defect in the stairs or the lighting, which the plaintiff ought to have known of it, and reported to the agent or to the owner.
193 Section 26 of the Wrongs Act provides that damages recoverable should be reduced to the extent that it is just and equitable to do so, having regard to the plaintiff’s share and responsibility.
194 In my view, Ms Potter was in a very different position to Mr Yeung and Santosa. Mr Yeung was required to take steps to ensure the premises were in good repair, at least at the commencement of the Lease. That obligation included an obligation to undertake a reasonable inspection from time to time to determine whether there were defects at the premises which could foreseeably give rise to a risk of injury. Mr Yeung failed to undertake any inspection. In Santosa’s case, Ms Hunter had an obligation to identify and report on any defects at the time of the Condition Report and routine inspection. She failed to do so.
195 Ms Potter was not under the same obligation. Her obligation, in respect of the premises, was to report any defects or damage. As stated, I am satisfied that that obligation, be it pursuant to the Lease or the RT Act, was in respect of defects or damage which occurred to the premises after the commencement of the Lease.
196 At the time of the fall, Ms Potter was doing no more than ascending the steps at night in wet conditions. There is nothing to suggest she was failing to take proper steps for her own safety. She was walking at a normal pace, carrying nothing in her hands.
197 In my view, she was under no obligation to closely inspect the stairs or test the lighting around the premises to ensure the stairs had sufficient grip, or that there was lighting in the area. She was entitled to expect the premises to be in good repair, without the need to make an inspection to check. She said it was unusual for her to go out to the back area at night, particularly if it was raining.
198 Assessing, on the one hand, the obligation upon Ms Potter to take reasonable steps for her own safety and the various obligations imposed upon the owner and the tenant to which I have referred, I am of the view there was no breach of the duty owed by the part of the plaintiff to take reasonable steps for her own safety.
What is the appropriate apportionment as between the owner and the agent?
199 In considering this issue, I bear in mind the fact that Mr Yeung lived interstate and inspected the property only rarely over the years. I accept his evidence that he relied upon the agent to undertake a range of functions in respect of the premises, including to manage the premises, obtain tenants and ensure the rent was paid on time.
200 I further bear in mind that Ms Hunter, or others at Santosa, inspected the premises on a far more regular basis. At the outset of each tenancy, a Condition Report as to the state of the premises was prepared, and on occasions after, regular inspection reports were prepared.
201 Given my findings in relation to the obligations upon Mr Yeung as owner, and his failure to take any real steps to ensure the premises was in good repair, to my mind, he ought to bear major responsibility for the loss suffered by Ms Potter. He was the owner of the premises. He stood to benefit from the rental return. He was the person effectively in control of the purse strings when it came to spending money on the property. He was in the best position to know the age of the property, and what needed to be done in relation to the state of the property.
202 I bear in mind that given the agent was the one who undertook the most regular inspections, one or several of those inspections ought to have indicated the state of the stairs and the lighting. Either Ms Hunter did not make an adequate inspection, or made no inspection at all.
203 In those circumstances, I am of the view it is appropriate to apportion two-thirds of the liability to Mr Yeung and one third to Santosa.
Is the agent entitled to an indemnity from the owner pursuant to the Management Agreement?
204 Santosa claims to be indemnified by Mr Yeung in respect of any finding against it. It relies upon Item 4 of the Management Agreement:
“Item 4. Condition of Property
The Client warrants to the Agent that the Property (which includes all its fixtures, fittings and any goods and chattels leased with the Property) is not in a Dangerous Condition and also warrants that
if at any time the Client becomes aware of any Dangerous Condition the Client will immediately notify the Agent of the Dangerous Condition both verbally and in writing and
if anybody is injured because of the Dangerous Condition of the Property the Client shall fully indemnify the Agent (and anybody engaged through the Agent) against any resulting claim or proceeding.
If the Client is advised by the Agent of potential or actual problems with the Property, the advice deemed to be sufficient notice to the Client of a Dangerous Condition.”[90]
[90]DCB 72
205 Mr Madder submits that if the Court accepted the steps were defective, in that they ought to have had a handrail and non-slip tread, or were defective in some other way, that it ought to be indemnified by Mr Yeung. Mr Middleton submitted that Santosa could not rely on the relevant provision as there was no evidence to suggest that Mr Yeung had any knowledge of the state of the steps which was withheld by the agent.
206 It is clear Mr Yeung did not know of the state of the steps or the lighting. I accept Mr Middleton’s submission that his client could not warrant something of which he had no knowledge.
207 The Management Agreement was signed on 9 January 2008. It is difficult to say with accuracy as to the state of the stairs or the lighting at that time. Even assuming that the stairs would have been somewhat degraded and dilapidated, could it then be said they are in a “dangerous condition”? The word “danger” or “dangerous”, as well as importing concepts of lack of safety, also means perilous, hazardous or carrying an obvious risk.
208 In Jones, the concept of “dangerous defects” was examined. The Court said:
“What then may constitute a dangerous defect? The defective flooring in Cavalier v Pope and Voli v Inglewood Shire Council would be obvious examples. So also the tap in Northern Sandblasting; a tap would not be expected to deliver an electrical shock to the person operating it. Likewise live wires or live electrical circuits that are misinstalled, or so exposed as to be liable to be brushed against accidentally; a light switch or light outlet that delivered a shock to one turning it on with dry hands; stairs that could not bear the weight of a person; and a roof that could not support a tenant authorised to be or to work upon it. It may also be that an untempered pane of glass prone to shatter or to explode when a door is opened or closed, or when wind blows against it, would be a dangerous defect. However, that is not this case.
…
The thread running through these cases is that 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. Many domestic items might be said to be dangerous: gas ovens, caged fans, hard floors, electrical circuits and panes of glass may cause serious or even fatal injuries. However, they are ordinarily only dangerous if misused. They will only be defective if they are dangerous when being used in a regular fashion and ordinarily would not be dangerous when so used.” [91]
[91](Supra) at paragraphs [176] and [178]
209 While the stairs were degraded and slippery, they were not dangerous in the sense that there was some design defect or some inherent structural problem which would make walking upon them hazardous. That is the sense in which the phrase “dangerous condition” is used in the Agreement. It is one thing to say a surface is worn and slippery. It is another thing to say it is dangerous from some inherent defect.
210 In my view, the clause has no operation.
The evidence as to damages
211 After the fall, Ms Potter was taken to the Maroondah Hospital where radiology revealed a transverse fracture across the lower part of the calcaneus with extension of the fracture to the calceneocuboid joint and the subtalar joint. She was in a plaster for a period, using shoulder crutches, and in a moonboot for five months with elbow crutches. She was prescribed a range of medication. Three to four weeks after the incident, she started to feel pain in her right shoulder. In August 2014, an ultrasound showed a full-thickness tear of the supraspinatus tendon.
212 Ms Potter said she has ongoing pain in the right ankle and it is difficult to stand for long times. Cold weather makes it worse. It is difficult for her to walk with her heel on the ground. The right ankle is not as strong as the left. It swells and she tends to use flat-heeled shoes. It is more difficult to look after her grandson with her shoulder injury.
213 It has been suggested it may be appropriate to fuse her ankle joint. She was not certain whether that will happen. The pain in her shoulder is present all the time. It affects her sleep at night and extends down to the right elbow. She is right-hand dominant.
214 Ms Potter takes a range of pain-relieving medication on a regular basis. She used to work in hospitality at Mildura but had ceased working to look after her grandson. She thought it was possible she might return to hospitality, had the injury not occurred.[92] She still drives a car, although not for longer distances.
[92]T94-95
215 Evidence was given by Dr Peter Blombery, vascular physician and pain specialist. He examined Ms Potter in June 2018. He said the injury to the right shoulder could have arisen as a result of the use of crutches, although people of Ms Potter’s age regularly have tears of the supraspinatus tendon without symptoms. He attributed the shoulder injury to her use of crutches, given the temporal relationship. He said Ms Potter had developed Chronic Regional Pain Syndrome Type 1 (“CRPS”). He thought there was little chance of recovery.
216 Evidence was given by Mr William Edwards, orthopaedic surgeon. He described the fracture to the right ankle, which he said was complex, and there was some displacement of the bone. He said the tip of the fibula was also fractured. He noted that Ms Potter was unable to walk on her heel and did not have “heel strike”. He said there was most likely some nerve damage and possibly the development of CRPS. He thought the ankle would slowly become worse and may develop arthritis. He suggested supportive insoles and there was the prospect of an arthrodesis. There would be a fusion of two bones of the foot, held with screws. The prospect of surgery may depend upon the progress of the CRPS.
217 Mr Ash Moaveni, orthopaedic surgeon, treated Ms Potter in 2017. He found a full-thickness tear of the rotator cuff tendon, which was the source of her pain. Surgery to the shoulder was discussed, but not proceeded with. He related the tear of the tendon to her fall, even though the pain came on three weeks later.
218 Evidence was given by Mr Ash Chehata, orthopaedic surgeon. He examined Ms Potter in August 2018. In relation to the right-shoulder injury, he noted there was a large tear in the tendon. This would cause difficulties, particularly in lifting the right arm.
219 As to the cause of the right shoulder problem, he thought there were two components. He said it may have happened in the fall, or with the use of crutches. He noted that the right shoulder was weak and pain was radiating down the arm.
220 In relation to the right ankle, he noted Ms Potter was limping and markedly restricted. He thought she may benefit from a fusion to the ankle. There was also the possibility of surgery to the shoulder to stitch the tendon back onto the bone. He thought that the cost for each operation was in the range of $10,000 to $15,000.
221 Evidence was given by Mr Ian Jones, orthopaedic surgeon. He examined Ms Potter in June 2017. He disagreed that the use of crutches could cause the damage to her supraspinatus tendon. He explained that the weight was not taken into the shoulders, but rather in the crutches, and the leg that was upon the ground. He said 50 to 60 per cent of the population within Ms Potter’s age group have tears to the rotator cuff, some symptomatic, some not.
222 Ms Kathryn Clarkson, occupational therapist, provided an extensive report,[93] and gave evidence. The purpose of the report was to assess the plaintiff’s physical strengths and weaknesses with a view to her present and future needs to assist her in her personal and domestic tasks, given the injuries from which she was suffering. She was asked to examine a range of equipment, therapies and services which may assist Ms Potter in attaining a reasonable level of enjoyment of life.
[93]Exhibit K
223 Ms Clarkson considered that Ms Potter had the care of her grandson, and took account of her current living arrangements. She suggested Ms Potter would benefit from a pain-management program, with a range of specialists to provide assistance. She undertook a range of tests to understand Ms Potter’s capacity to carry out her activities of daily living. She said there was a range of equipment and aids which could assist her in activities such as personal hygiene, grooming, sleeping, dressing, bathing and showering, and mobility.
224 Ms Clarkson provided a table of equipment she suggested was necessary and its cost, including a renewal cost on a regular basis. From her report, the plaintiff provided a list of special damages which set out details of the costs assessed by Ms Clarkson, and reference to the life and multiplier tables.[94]
[94]This list of special damages was the subject of objection as it was filed only at the time of final submissions. I allowed the plaintiff to rely upon the table, given it was based upon the evidence and report of Ms Clarkson. I gave the defendants additional time to make a response.
In what sum is it reasonable to assess the Plaintiff’s general damages?
225 I accept Ms Potter suffered a significant fracture to her right ankle in the fall. This required treatment with plaster and a moonboot over a number of months. I accept her evidence that she still suffers pain in the right ankle, present all the time, and which affects her sleep. I accept the evidence of Dr Blombery that a component of her pain, at least, is due to the development of CRPS, for which there is no specific treatment. I accept that she requires ongoing medication for pain, the ankle swells from time to time, and is more painful in the cold.
226 I accept the pain in her ankle causes trouble going up and down stairs, and she finds it difficult to place her heel on the ground. This causes restrictions in a range of activities of a domestic and recreational nature, and makes it more difficult for her to look after her grandson.
227 I accept that there is the prospect of an arthrodesis or fusion to the right ankle. Compensation in that regard stands to be assessed in accordance with the principles established in Malec v JC Hutton Pty Ltd.[95]
[95](1990) 169 CLR 638
228 I further accept that the tear to the supraspinatus tendon of the right shoulder was brought about by the plaintiff’s use of elbow or shoulder crutches. I prefer the opinion of most practitioners to that of Mr Jones, who reported on behalf of the defendants. There is a close temporal relationship between the onset of symptoms and the use of crutches.
229 It is probable Ms Potter either had a tear to the tendon or an underlying degenerative process in the shoulder, nonetheless, I am satisfied that the onset of symptoms was caused by the use of the crutches in recovering from the ankle injury.
230 I accept that the pain is constant, although varies according to the activities in which she is involved. I accept it affects her sleep and given she is right-hand dominant, it is difficult for her to lift and carry items in the right hand. I accept heavier domestic activities are affected.
231 In submissions, Mr Middleton, for the first defendant, said there was no evidence the plaintiff was currently receiving any treatment, and noted that in respect of the right ankle surgery, that was only a possibility. He submitted $150,000 as fair and reasonable compensation for pain and suffering. Mr Madder, for the second defendant, submitted that an appropriate range was $100,000 to $150,000.
232 Considering all the matters to which I have referred, I am of the view it is appropriate to assess pain and suffering damages in the sum of $200,000.
In what sum is it reasonable to assess the Plaintiff’s special damages?
233 The plaintiff provided a list of special damages. The total claimed is $4,802.75 in respect of past medical expenses and $388,108.08 in respect of future medical and like expenses. The claim is based upon the report and evidence of the occupational therapist, Ms Clarkson.
234 There is no issue in respect of past medical expenses. I shall allow the full amount of $4,802.75.
235 Mr Middleton, for Mr Yeung, noted that the only medical report available to Ms Clarkson when she undertook her assessment in April 2017, was that of Professor Kenneth Myers of June 2016. Professor Myers was not called to give evidence, nor was his report tendered. Mr Middleton said there was no real medical basis for the occupational therapy assessment. Mr Middleton said the report made no allowance for the prospect of some relief from the plaintiff’s symptoms from either a pain-management program or fusion surgery to the left ankle. He was also critical as to Ms Clarkson’s line of reasoning. He accepted there should be some allowance for the prospect of surgery and medication, but the rest of the report was speculative.
236 Mr Madder, for Santosa, also suggested the expenses set out in the report were speculative. In particular, he said Ms Potter gave no evidence, or only limited evidence, as to the need for the aids referred to. Ms Potter could only suggest that the use of a mobility scooter was a possibility given her condition, which she regarded as stable.[96]
[96]T77, L12-L22
237 Mr Madder further pointed to the fact that at the time of the assessment, Ms Potter was living with a co-tenant. At the time of trial, she had moved back in with her parents, who provided support. He said there was no evidence about her current living arrangements or the extent to which she still needed support. Mr Madder made various criticisms of the basis for aspects of Ms Clarkson’s report, including as to attendant care and weekly costs in addition to attendant care.
238 On behalf of the plaintiff, Mr Ingram said that in the course of cross-examination, Ms Clarkson’s assessments were largely unchallenged. He said her evidence was extensive as to how the plaintiff’s needs might be assessed. He noted, further, that neither defendant had retained an occupational therapist, or an expert witness of similar qualifications, to give evidence contrary to that of Ms Clarkson. He noted, further, that there was no cross-examination by either defendant directed towards the circumstances of Ms Potter living with her parents. In those circumstances, he said, the Court should more readily accept the evidence of Ms Clarkson.
239 The claim by the plaintiff for future medical and like expenses is extensive.
240 Her claim is made for the costs involved in a pain-management program, both in respect of her shoulder and ankle. According to the report of Dr Blombery, the cost of a pain-management program would be $5,000 for the first year and $1,000 per annum thereafter. It is not clear from his report, or evidence, as to the need of the ongoing cost of pain management. I shall allow $5,000 for a pain-management program.
241 According to the report and evidence of Mr Chehata, if surgery to either Ms Potter’s right ankle or shoulder should proceed, the approximate cost in the private sector would be $10,000 to $15,000. The requirement as to surgery is, according to the evidence, only a prospect. That prospect appears stronger in respect of the ankle. I will allow $15,000 in respect of the prospect of future surgery to both areas.
242 As to the other various items claimed, I will make no allowance for the following, as I am not satisfied there is a sufficient basis on the evidence for the need for such items:
· power scooter
· scooter rack
· scooter servicing
· fortnightly internet shopping
· allowance for packaging moving.
243 I shall allow the remaining items of future medical and like expenses[97] in the sum of $172.16 per week. Allowing a 5 per cent multiplier for thirty-five years (875.6) = $150,743.30.
[97]Adjustable mattress, adaptable equipment, home help, home maintenance, further home maintenance, gardening services, home adaptive equipment P5, occupational therapy and medication.
244 In relation to the claim for attendant care, and additional attendant care (during school holidays), there is some evidence to support the need for attendant care and I am satisfied Ms Potter will need some assistance in this regard. I will allow one half of the attendant care claimed, $249.05 for eleven years (multiplier 444.2) = $110,628.01.
245 I shall reduce these amounts by 20 per cent for vicissitudes – total $209,097.05.
Conclusions
246 I am not satisfied the plaintiff has a private right to common law damages as a result of the claimed breach of the Residential Tenancies Act 1997.
247 I am not satisfied the admitted duty of the owner to take reasonable steps against the risk of foreseeable injury, alternatively, the duty he owed as occupier of the premises, was, in the circumstances of this case, delegated to the agent.
248 I am satisfied both the owner and the agent were in breach of the duty owed to the plaintiff, as a result of which she suffered injury. I shall apportion responsibility as to two thirds to the owner and one third to the agent.
249 I am satisfied the owner was in breach of the relevant provision of the Residential Tenancies Agreement, as a result of which the plaintiff suffered injury.
250 I am not satisfied the plaintiff, by her own negligence, contributed to her injuries.
251 I am not satisfied the claim by the agent for indemnity under the terms of the Management Agreement is made out.
252 I assess damages as follows:
Pain and suffering: $200,000.00
Past medical expenses: $4,802.75
Future medical expenses:
– pain management $5,000.00
– surgery $15,000.00
Other recurring expenses and attendant care:
(reduced by 20 per cent for vicissitudes) $209,097.05
253 I will hear from the parties as to final orders and as to costs.
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