Sakoua v Williams

[2005] NSWCA 405

Reported Decision: 64 NSWLR 588

Court of Appeal

CITATION:	SAKOUA & ANOR v WILLIAMS [2005] NSWCA 405
HEARING DATE(S):	15 August 2005
JUDGMENT DATE:	23 November 2005
JUDGMENT OF:	Mason P at 1; Beazley JA at 37; Brownie AJA at 68
DECISION:	Appeal upheld. Verdict for the defendants.

CATCHWORDS:	NEGLIGENCE – lessor’s duty of care to incoming tenant – residential premises – unsafe steps – content of duty of care – whether duty to put and keep the premises in a state of safe repair – whether duty to take reasonable care to avoid foreseeable risk of injury – dangerous defect – good building practice at time of construction – safety standards at time of tenancy agreement – obvious danger. (D)
CASES CITED:	Tina Cockburn, “Duty of Care of Landlords of Residential Premises” (2001) 20 U Tas LR 205 Sharon Erbacher, “Unsafe leased residential premises: A landlord’s liability in negligence to injured occupants” (2002) 13 ILJ 134 Ahluwalia v Robinson [2003] NSWCA 175 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Francis v Lewis [2003] NSWCA 152 Jones v Bartlett (2000) 205 CLR 166, [2000] HCA 56 Ridis v Strata Plan 10308 [2005] NSWCA 246 Voli v. Inglewood Shire Council (1963) 110 CLR 74
PARTIES:	Raymond SAKOUA & ANOR Maxine WILLIAMS
FILE NUMBER(S):	CA 40915/04
COUNSEL:	Appellants: In person Respondent: J Conomos
SOLICITORS:	Appellants: None on record Respondent: Lyons & Lyons

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 4135/2002
LOWER COURT JUDICIAL OFFICER:	Patten DCJ

CA 40915/2004
DC 4135/2002

MASON P
BEAZLEY JA
BROWNIE AJA

Wednesday 23 November 2005

SAKOUA & Anor v WILLIAMS

BACKGROUND

The respondent/plaintiff brought proceedings against the appellants, the owners of a residential property that she rented, after she fell down the three front steps of the property. The respondent claimed that the appellants were negligent in failing to provide safe access to the house. In particular, she alleged that the absence of a handrail and landing on the stairs and the presence of a tree stump in the vicinity of the stairs made them unsafe. She also claimed that the stairs were uneven and shrubs encroached upon the stairs and impeded safe access to the house.

The trial judge found the appellants to have been negligent and the respondent to have been contributorily negligent. His Honour assessed contributory negligence at fifteen per cent. In the Court of Appeal, the appellants challenged the trial judge’s finding of negligence.

HELD:

Per Mason P (Brownie AJA agreeing) allowing the appeal:

While Jones v Bartlett (2000) 205 CLR 166 established that the lessor of residential premises owes a duty of care to an incoming tenant, that decision does not support a duty to repair beyond addressing defects of which the lessor is aware or ought to be aware, where a defect is more than a condition capable of causing injury.

In order to establish negligence, the respondent needed to prove unreasonable want of care with respect to defects at the inception of the letting. The stairs were not defective in the meaning of that term in Jones v Bartlett. Identified departures from good building practice were visible and in no way unusual. This was not a case where the landlord had knowledge or suspicion that made it unreasonable to fail to upgrade the steps. Changes in building standards did not in themselves impose a duty to upgrade the premises. The trial judge’s finding of negligence should be reversed.

Per Beazley JA, dismissing the appeal:

A landlord is under an obligation at the time of the commencement of a tenancy agreement to ensure that the leased premises are reasonably safe for the purposes for which they are let. In this case, that purpose was habitation as a domestic residence: Jones v Bartlett & Anor (2000) 205 CLR 166; [2000] HCA 56 (applied)

This is not to say that a landlord is under an obligation greater than an obligation to take reasonable care to avoid foreseeable risk of injury to their prospective tenants and members of that household, and in this sense, applicable building standards at the time a premises are constructed may be relevant to whether a landlord has adequately discharged their duty of care: Jones v Bartlett & Anor (2000) 205 CLR 166; [2000] HCA 56 (cited)

However, the overriding question is whether the premises are safe for the purposes for which they are let at the time a tenancy agreement is entered into. A landlord is therefore under a duty to ensure premises are kept in a safe state beyond the time of construction: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 (applied). Accordingly, it did not matter in this case that the stairs were in place at the time the appellants purchased the property, or that there was no breach of any building ordinance at the time the premises were built.

The appellants’ duty of care arose at the time of letting, and the evidence was that the unsafe condition of the steps was obvious and that good building practice required that there be a landing on the steps, or in the absence of a landing, some other method of ensuring the safety of those using the steps, such as a handrail: Ridis v Strata Plan 10308 [2005] NSWCA 246 (distinguished)

1. Leave to appeal granted.

2. Appeal allowed.

3. Verdict and judgment in the District Court set aside. In lieu thereof, verdict for the defendants with costs.

CA 40915/2004
DC 4135/2002

MASON P
BEAZLEY JA
BROWNIE AJA

Wednesday 23 November 2005

SAKOUA & Anor v WILLIAMS

JUDGMENT

1 MASON P: I have had the benefit of reading in draft the reasons of Beazley JA. I adopt its statement of the facts.

2 I would uphold the appeal.

3 Jones v Bartlett (2000) 205 CLR 166, [2000] HCA 56 established that the lessor of residential premises owes a duty of care to an incoming tenant (and by extension to the tenant’s visitors). The scope of that duty was not, however, formulated in identical terms by their Honours.

4 The Court discussed the content of the duty, with respect to the condition of the premises at the inception of the letting. Three justices in the majority favoured a duty expressed in terms of one to take reasonable care to avoid foreseeable risk of injury, leaving the practical content of the duty to be governed by the circumstances of the case (per Gleeson CJ at 184[56]-[58], per Gummow and Hayne JJ at 213[168]-[169]).

5 Two justices in the majority favoured slightly narrower formulations of the duty, referring to a duty to put and keep the premises in a state of safe repair (per Gaudron J at 192[88]-[93]), or to take reasonable care to avoid foreseeable risk of injury from defects of which the landlord was on notice or of which (by appropriate inspection) the landlord would reasonably become aware (per Kirby J at 240[252]). Callinan J expressed no opinion beyond the tentative statement that if any duty were owed, a matter of which he was far from convinced, he would define it as no more than a duty to provide, at the inception of the tenancy, habitable premises (at 252[289]).

6 McHugh J dissented, for reasons to which I refer below.

7 It can therefore be seen that, for Kirby and Gaudron JJ, the concept of a dangerous defect was central to the narrower duty of care that they favoured. For Gleeson CJ, Gummow and Hayne JJ the presence of such a defect at the inception of a tenancy was seen as highly relevant to a finding of breach of the more generally expressed duty of care that they favoured.

8 On my reading, none of the justices in the majority went so far as to take any duty to repair beyond requiring the lessor to address defects of which he or she was aware, or ought to be aware. And each of their Honours defined “defect” in this context to mean something more than a condition capable of causing injury (see Tina Cockburn, “Duty of Care of Landlords of Residential Premises” (2001) 20 U Tas LR 205 esp at 223-6; Sharon Erbacher, “Unsafe leased residential premises: A landlord’s liability in negligence to injured occupants” (2002) 13 ILJ 134).

9 In Ahluwalia v Robinson [2003] NSWCA 175, this Court held (at [23] per Hodgson JA, with whom Sheller JA and Bryson JA agreed):

Jones v Bartlett makes it clear that, in the absence of a contract supportive of a higher [duty], the duty of a landlord in relation to the safety of premises does not in general require a landlord to commission experts to inspect premises to look for latent defects, nor is it a duty to make premises as safe as reasonable care can make them. In general terms, the duty of the landlord is to be determined by reference to foreseeable risk of harm and what a reasonable person would do in response to that risk.

10 The foreseeable risk of harm in Ahluwalia depended on a finding by the trial judge that a reasonable person would have commissioned an expert to inspect the premises generally. Apart from that, there was nothing that showed the landlords were aware or should have been aware of any danger associated with a glass shower screen that shattered when the plaintiff slipped and crashed into it. The Court of Appeal overturned the verdict that had been given in favour of the tenant’s visitor.

11 In Ahluwalia, the Court cited with approval the following passages from the judgment of Gleeson CJ (at 176[19]) and Callinan J (at 239[250]-[251]) in Jones:

Gleeson CJ said:

The conclusion that the respondents were not negligent in failing to have the door expertly assessed at the time of the lease, is, in one respect, expressed in terms which are unduly favourable to the appellant. As was noted above, if there were to be an expert assessment at the time of the lease, there is no reason why it would have been restricted to an assessment of the glass door in question. Implicit in the proposition that reasonable care required that there should have been an expert assessment is the idea that all features of the premises potentially capable of harming someone who came onto the premises, or, at least, the prospective tenants and members of their households, should have been the subject of expert assessment. The glass door had been there for thirty years without causing any harm. It was an ordinary door, constructed in accordance with building practice and standards of the time when the house was built. There was no reason why it would have been the focus of special attention.
Callinan J said:


In the present case, the respondents argued that no evidence supported a conclusion that they were aware of any defect in the glass of the door with which the appellant collided. There was no suggestion of previous accidents. There was no evidence of previous complaints or requests by tenants, permitted occupants or visitors that went unheeded. It is not always true that landlords are better able to detect defects in the demised premises than the tenants and their families and guests who occupy or visit them. The agent who performed an inspection for inventory purposes in this case had made no mention of any relevant defect. Even the expert witness called by the appellant accepted that the defect would not be detected by lay inspection. Whilst he would have been prepared, for a fee, to inspect the premises prior to execution of a lease or its renewal, his evidence did not suggest that such inspections were common. Still less did his evidence establish that inspections of such a kind were standard or even frequent practice in Australia in residential tenancies of this kind.

In terms of principle and logic, such inspections could not, in any case, be limited to examination of the possible defects of internal doors with glass panels. Inspections of gas, electricity, flooring, ceilings, balconies, railings and all aspects of the premises would be required by such a principle. They would have to be performed by different experts for the necessary fees. By inference, such costs would all be passed on to tenants as a class. Of course, these remarks concern the liability of landlords of residential premises. Different considerations may well apply to premises used by government or its agencies or by private bodies, including for commercial, public, schooling, health care or other purposes. Where members of the public generally are invited onto, or have a right to enter, premises a higher duty will be imposed by the law.

12 See also Ridis v Strata Plan 10308 [2005] NSWCA 246 at [150]-[154] (McColl JA)

13 In Jones, there was an internal glass door that complied with the legal standards applicable at the time of its construction, but not of a thickness required under standards for new doors applicable from 1973. The letting occurred in 1992.

14 Gleeson CJ held (at 178[26]) that the condition of the premises was not defective in any relevant sense. The Chief Justice said (at 177[22]-[25]):

22. In the present case, we are not concerned with a dwelling house that was dilapidated or tumble-down, or that contained negligently installed and dangerous electrical wiring. There was nothing about the premises that alerted, or should have alerted, the owners to any unusual danger. The premises were constructed in accordance with the standards prevailing at the time, and, so far as appears from the evidence, were adequately maintained.
23. There is no such thing as absolute safety. All residential premises contain hazards to their occupants and to visitors. Most dwelling houses could be made safer, if safety were the only consideration. The fact that a house could be made safer does not mean it is dangerous or defective. Safety standards imposed by legislation or regulation recognise a need to balance safety with other factors, including cost, convenience, aesthetics and practicality. The standards in force at the time of the lease reflect this. They did not require thicker or tougher glass to be put into the door that caused the injury unless, for some reason, the glass had to be replaced. That, it is true, is merely the way the standards were framed, and it does not pre-empt the common law. But it reflects common sense.

24. In Phillis v Daly [(1988) 15 NSWLR 65 at 74)], Mahoney JA said:
"There are dangers on any premises. A room may have a desk or a table. There is a danger that, if I fall, I will hit my head on it and my skull will be fractured. If the desk or table were not there, I would suffer little or no harm. And the danger is obvious: people do slip and fall. And the injury may be serious. But the obvious foreseeability of such an injury and its seriousness does not involve that, if a person falls and hits his head on a table, there must have been a breach of duty by the occupier of the room. And this notwithstanding that people may live without tables and that tables may be easily removed."
25. It is interesting, and not without relevance, to speculate about how many objects in and around an ordinary dwelling house would constitute a potential hazard to a person who behaved as carelessly as the appellant.

15 Gaudron J said that the glass door was not defective (at 192[89]), and not being defective, was not in need of repair.

16 Gummow and Hayne JJ spoke in terms of “dangerous defects”, stating (at 216[176]-[178]):

176. What then may constitute a dangerous defect? The defective flooring in Cavalier v Pope [[1906] AC 428] and Voli v Inglewood Shire Council [(1963) 110 CLR 74] would be obvious examples. So also the tap in Northern Sandblasting [ Pty Ltd v Harris (1997) 188 CLR 313]; 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.
177. Some dangerous defects will exist at the time of entry into a tenancy agreement while others might develop during the course of the tenancy. It may be attractive to divide the class of "dangerous defects" between these two heads, but the evidence may sometimes be insufficient to determine which of these is the case in respect of any particular dangerous defect. Rather, a better approach is to look at the origin of the defect, particularly whether it arises from faulty design or workmanship, at whatever stage, or whether it arises from a lack of repair. Those responsible for negligent design or building will ordinarily be liable as primary tortfeasors. Liability for disrepair will ordinarily fall upon the party with the obligation to repair. Liability for negligent repair ordinarily will fall on the repairer.
178. 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.

17 The glass door was not “a dangerous defect in the necessary sense” (at 218[180]). The premises were, according to their Honours, reasonably fit for the purpose of residential occupancy (ibid).

18 Kirby J held that a landlord’s common law standard of care excluded liability for latent defects of which the landlord had no notice and was reasonably unaware (at 239[249]). The offending glass door fell into this category:

250. There was no suggestion of previous accidents. There was no evidence of previous complaints or requests by tenants, permitted occupants or visitors that went unheeded. It is not always true that landlords are better able to detect defects in the demised premises than the tenants and their families and guests who occupy or visit them. The agent who performed an inspection for inventory purposes in this case had made no mention of any relevant defect. Even the expert witness called by the appellant accepted that the defect would not be detected by lay inspection. Whilst he would have been prepared, for a fee, to inspect the premises prior to execution of a lease or its renewal, his evidence did not suggest that such inspections were common. Still less did his evidence establish that inspections of such a kind were standard or even frequent practice in Australia in residential tenancies of this kind.

19 His Honour rejected (at [252], [278]-[279]) the proposition that the common law of Australia had developed sufficiently to impose on a landlord an affirmative duty to conduct or procure a detailed inspection of every possible source of danger in the premises.

20 As indicated, Callinan J was highly doubtful that any duty with respect to defects rose higher than provision of habitable premises.

21 The lines drawn by the majority become even sharper when viewed in light of McHugh J’s dissent. His Honour described the duty in terms similar to Gleeson CJ, Gummow and Hayne JJ (see at 194[100]). But he was not prepared to limit the duty to “dangerous defects”, a term (along with “ordinary use of the premises” or “unusual dangers”) that would reintroduce into the law the categories expelled by the High Court by Australian Safeways Stores Pty Ltd v Zaluzna (1987) 162 CLR 479. When applying the principles to the facts, McHugh J recognised expressly that, in this field, what is reasonable in the circumstances may at times require inspection by qualified experts and upgrading in the interests of safety to accord with community standards prevailing at the time of the letting (see at 195[103]-[106]). I do not see any support for this more expansive duty in any of the other judgments. As indicated, they effectively rejected it.

22 I therefore cannot agree with the trial judge or with Beazley JA (at [61]) that the question to be decided was whether the steps were reasonably safe for the purposes for which they were to be put. In a tort case, such a test appears both to be unhelpful and to contradict the scope of the duty found by the majority in Jones.

23 Nor does the “obviousness” of the dangers identified (cf Beazley JA at [63]) provide a basis for liability. Such obviousness was equally apparent to both parties and is not, in itself, a criterion of liability.

24 Turning to the facts, I am not persuaded that there was negligence on the landlords’ part. Nothing was established beyond the likelihood that the stairs could have been safer. This is not the same as proving unreasonable want of care with respect to defects at the inception of the letting.

25 The stairs were not defective in the sense or senses identified in Jones.

26 All stairs are inherently dangerous, especially if traversed by users who (like the respondent) fail to some degree to take reasonable care for their own safety. I venture to repeat my remarks (with which Tobias JA agreed) in Francis v Lewis [2003] NSWCA 152 (at [40]-[41]):

40 Foreseeability of risk of injury is not determinative of breach of duty of care. If, which I doubt, the learned trial judge overlooked this he would have been in error. The duty is one of reasonable care, not whether safety could have been improved by some modification. The duty is not confined to one owed to those who are careful for their own safety, but it is relevant to take into account that plaintiffs are themselves expected to act reasonably and take care for their own safety when determining what is reasonable (see generally Phillis v Daly (1988) 15 NSWLR 65 at 74, David Jones Limited v Bates [2001] NSWCA 233, Waverley Municipal Council v Swain [2003] NSWCA 61 at [114]).
41 In recent years, this Court has emphasised that no stairs are perfectly safe and that it is wrong to suggest that a plaintiff who is injured by falling on stairs has prima facie some cause of action (see Baulkham Hills Shire Council v Pascoe [1999] NSWCA 431 at [12], North Sydney Council v Plater [2002] NSWCA 225 at [43]-[44], Owners Strata Plan 30889 v Perrine [2002] NSWCA 324). In Wilkinson v Law Courts Ltd [2001] NSWCA 196, Heydon JA, with whom Meagher JA and Rolfe AJA agreed, said at [32]:
Stairs are inherently, but obviously, dangerous. Many measures might have been taken to make the stairs as safe as human skill could possibly make them; but the duty is only to take care which is reasonable under the circumstances. Among the essential circumstances is the following fact: “persons using steps may misjudge their footing and slip or trip but this is an everyday risk which members of the public avoid by taking care for their own safety”: Stannus v Graham (1994) Aust Torts Reports 81-297 at 61,566 per Handley JA.

27 This stairway only had three steps, with a fourth riser up to the house itself. Its configuration was patent, as regards the absence of a landing and handrail and the differences in the height of risers. The respondent had inspected the premises before leasing them. She even claimed that she had told the agent: “I don’t like the look of these steps”, a piece of her evidence rejected by the trial judge. The accident occurred in daytime.

28 I also have difficulty in seeing the causative impact of the riser differential in the mechanics of the respondent’s fall, which appears to have commenced at the top step.

29 To adopt Callinan J’s expression in Jones (at 241[256]), this was a “modest” flat, reflected both in its age, description and rental. The steps had been constructed according to the prevailing legal standards when they were built, probably in the early 1970s when a 1950s house was divided into two flats. Building practice varied widely at the time in relation to steps without landings. There was, however, a finding based on the expert evidence that the construction of steps with risers of varying heights was contrary to then current good building practice.

30 I acknowledge that the breach issue must be addressed as at 2001, when the premises were let to the respondent. Nevertheless, any factual enquiry as to whether the steps constituted a dangerous defect and/or whether it was unreasonable not to repair them before letting should at least have regard to the history of safe usage. Several of the justices in Jones adverted to the absence of previous accidents as a relevant matter. Nothing in the history of these steps suggested any hidden trap or dangerous defect in the sense discussed in Jones. The previous owner knew of no incident or accident over the previous 27 years.

31 This was not a case where the landlord had knowledge or suspicion that made it unreasonable to fail to upgrade the steps or even to call in an expert for advice (cf Jones at [188]). The respondent’s expert’s evidence at its highest identified unsafeness in absence of handrail, lack of threshold or landing between the doorway and the steps, and the uneven goings and riser heights. But these departures from good building practice (ancient or modern) were quite visible and in no way unusual dangers.

32 The sharpening of building standards since the premises were built (both statutory and as reflected by general practice) did not in itself impose a duty to upgrade the premises before effecting the letting. Nor did such changes in standards establish in themselves that the steps were defective in the sense of putting the lessor in breach of the duty of care with the scope recognised in Jones.

33 The steps could have been made safer, but their safety was not underwritten by the tenancy agreement. Their deficiencies were clearly visible such that an occupant using them ought to have appreciated that a degree of care was required when negotiating them. The risks of falling were as patent to the tenant as to the landlord. The short distance involved in any fall meant that any injury would not be likely to be serious. The history of uneventful use showed that there was nothing to put the landlord on notice of a defect or condition requiring attention or warning to protect the safety of a new tenant.

34 Nor is negligence established by pointing out that little expenditure might have been required to make the steps safer. That is not the test of unreasonableness, especially in a context where any expenditure of this nature might be expected to find itself reflected in a higher rental.

35 It is unnecessary to explore the extent (if at all) to which standards of reasonableness as regards a short flight of steps might vary from suburb to suburb. I content myself with the conclusory observation that the respondent did not establish that it was unreasonable to let these premises in their present condition under the terms of the lease entered into between the parties a week before the accident.

36 Subject to the filing of a notice of appeal, I would grant leave to appeal, uphold the appeal and set aside the verdict and judgment in the District Court. In lieu, there should be a verdict for the defendants with costs. The respondent should pay the appellants’ costs of the appeal and have a certificate under the Suitors Fund Act 1951 if qualified.

37 BEAZLEY JA: The respondent was injured on 20 October 2001 when she fell on the front steps of residential premises that she had rented 7 days earlier from the appellants. She brought proceedings against the appellants claiming damages alleging that they had been negligent in providing safe access to the premises, in particular, due to the absence of a handrail and landing on the stairs and the presence of a tree stump in the vicinity of the stairs. The respondent also relied upon evidence that the stairs were uneven in height and that branches of a shrub encroached upon the stairs and impeded access through the door of the premises. She also alleged that the appellants were in breach of the terms of the letting agreement in failing to have the premises in a safe condition.

38 The matter was heard before Bellear DCJ on 5-6 August 2003 and 14 May 2004. The interruption in the hearing dates was due to Judge Bellear’s other Court commitments. Unfortunately, thereafter Judge Bellear became seriously ill and was not able to conclude the hearing. Both parties consented to the matter being finalised by another judge, and Patten DCJ was allocated to deal with the matter.

39 The matter proceeded before his Honour by way of tender of the transcript. His Honour gave judgment on 24 September 2004 in which he found a verdict for the respondent and assessed damages in the sum of $46,563.00. His Honour found contributory negligence and assessed that at 15%, so that the judgment sum to which the respondent was entitled was $39,578.55.

40 The appellants appeal against the verdict on liability. There is no appeal from his Honour’s award of damages, nor any cross-appeal in relation to the finding of contributory negligence.

Background facts

41 The premises at which the accident occurred were located at Nirvana Street, Long Jetty. The appellants had purchased the property in July 2001. Their intention was to eventually develop the site but in the meantime to rent the property. To that end they placed the property in the hands of a real estate agent. The respondent was their first tenant and the rent was $110.00 per week. The previous owner of the property, a Mr. Nounnis, had owned the property for a period of about 27 years. The house was originally built as a single dwelling but shortly before Mr. Nounnis purchased it, it had been divided into 2 flats. The front steps upon which the respondent fell were in place when Mr. Nounnis purchased the property in 1974.

42 The steps were constructed of brick. There was a layer of cement on top, that Mr Nounnis probably repaired at some stage. There were 3 steps in all, with a fourth riser up into the house itself. The riser heights of the steps varied from 168 mm to 200 mm, with the greatest riser height of 200 mm occurring at the step that led to the front door of the flat (Cubitt p.4). The width of the front door was 795 mm. The front door itself comprised a wooden door which opened inwards. There was also a fly-wire door which abutted the wooden door, but which opened outwards. An Hibiscus tree with foliage overhung the steps on the left hand side so that a person exiting from the front door was necessarily forced to utilise the right-hand side of the steps. There was a tree stump near the bottom of the steps on the right hand side.

43 Both parties adduced expert evidence. The respondent’s expert, Dr. Cubitt, prepared 3 reports in the matter. Dr. Cubitt is a design engineer. The appellants obtained the expert opinion of Dr. Cooke, consulting architect. Neither expert gave oral evidence.

44 It appears that the house was constructed in about the 1950s. The evidence did not establish when the steps were built. It seems, however, that his Honour may have inferred that the steps were built at about the time that the renovation of the property was undertaken which converted the premises from a single dwelling into two separate flats. That was some time before 1974. Neither party took any issue with this, and for reasons which I explain it is of no particular relevance.

45 The experts were finally agreed that the relevant building regulation ordinance that applied to the property including the construction of the stairs, was Ordinance 71 (Judgment p.12). Ordinance 71 did not stipulate any standards for the construction of external stairs (Judgment p.13). Notwithstanding that there were no ordinance requirements, Dr. Cubitt was of the opinion that the construction of the steps was unsafe in three respects: there was no handrail; there was no threshold or landing between the doorway and the steps; and the goings and riser heights of the steps varied beyond an acceptable construction tolerance.

46 Dealing with the last of these matters, Dr. Cooke did not consider that the variations in the goings and the riser heights were significant. Dr. Cubitt, for his part, disagreed with this and said that good building practice required that the goings (or width) of the stairs and the riser height should not vary significantly from step to step and this requirement had been in use in the construction industry for hundreds of years.

47 So far as the question of a landing was concerned, Dr. Cooke pointed out that there was nothing in Ordinance 71 that required a landing, although the later introduced Ordinance 70 and the Building Code of Australia, which in turn replaced Ordinance 70 in 1993, would have required a landing in this case. He pointed out that the obvious purpose of a landing from a doorway to a top step is to avoid the danger of persons stepping into a gap or void immediately upon exiting a door, and to provide a secure place to stand when closing the door.

48 Dr. Cooke agreed that good building practice indicated that there should have been a landing. However, it was his opinion that it was common practice to build steps without landings at the time that these steps were likely to have been constructed. In response to that opinion, Dr. Cubitt undertook a photographic survey of houses in the same street, many of which appear to be of a similar vintage to this house, and which showed many had been built with a landing.

49 Notwithstanding a number of disagreements between Dr. Cubitt and Dr. Cooke, Patten DCJ concluded that the following common ground emerged from their reports:

(i) the construction of the premises did not involve any breach of the building ordinances that applied at the time of construction;

(ii) the construction of steps with risers of varying heights was contrary to good building practice;

(iii) “ arguably ” the failure to provide a landing between the doorway and the top step was contrary to good building practice at the time;

(iv) if the premises were constructed a few months after they actually were, that is after 1 July 1974, the construction would have involved breaches of the applicable law, in that the risers were not of consistent height and a landing was not provided and arguably there should have been a handrail provided in any event.

50 The respondent’s evidence as to how the accident occurred was not completely internally consistent. In her evidence in chief, she said that having opened the screen door she could not remember which foot she put down first. She said that when she did put her foot down on the first step she felt herself losing her balance “because it was really hard to get around the step because of the … screen door … I went to put my next foot on the next step and then I stumbled, … lost my balance, had to reach out …”. She said that she went to reach out to hang-on to something with her right hand (there was of course nothing to hang onto) and then stumbled down the steps over the tree stump which was on the right-hand side and that she then fell onto the concrete path. She said that at the time she sought to exit the property her granddaughter was already out of the house and waiting for her at the bottom of the steps.

51 In cross-examination the respondent said that her grand-daughter was still on the stairs with her, but that the stroller was already outside. She said she remembered opening the fly-screen door. Asked what she did after opening the fly-screen door, she said she told her grand-daughter to go downstairs and wait for her. She said that her grand-daughter went downstairs and sat in the stroller and that she turned around to shut the wooden door and then turned around again and “that’s when it, the accident, when I stumbled”. In response to a question as to whether it was in the process of turning around and closing the wooden door that she stumbled, the respondent said “No, I went to close the, went to get the screen door, went to – yeah and I turned around, it was, when I turned around yeah that’s when I stumbled sorry, down the stairs”. She agreed that she still had her hand on the wooden door closing it behind her when she stumbled but denied that she was still standing in the house. She said: “No, I’d already, I was facing the door to go out”. She confirmed that she was facing the screen-door and again denied that she lost her balance and that was what caused her to stumble. The following cross-examination then ensued:

“Q. You categorically deny [that you lost your balance] do you? A. Well I’m not, when you say I lost – I don’t – well I did, I stumbled, when I stumbled, put my foot on the front, on the, I’m not quite sure what foot, put my foot on the, on the stair, on the stairs and then I--
Q. Is this at the first step? A. Yes.
Q. So there’s the house? A. Yes.
Q. Then the first step? A. Yes. And that’s when I, that’s when I was walking out down the stairs, that’s when I stumbled. Guess yeah lost my balance, stumbled and went to reach out to hang onto something and fell.”

52 The trial judge concluded from this evidence that the plaintiff had stumbled and fallen in the process of closing the screen-door behind her, and, as there was no handrail, there was nothing to break or prevent her falling to the ground. He considered it probable that each of the deficiencies with the steps which he had identified had played a part in the fall. As there was no landing, she was forced to stand somewhat awkwardly on a step to close the screen-door behind her. Also, the difference in the heights of the risers made it more likely that she would lose her footing and stumble; and once she stumbled, there was no means of arresting her fall. His Honour had earlier concluded that the front steps of the premises were unsafe for the purposes for which they were to be put, namely, the principal means of access to and egress from the premises.

The law: duty of a landlord

53 Although the respondent sued in contract and tort, the trial judge found that the obligations of the appellants under the Residential Tenancy Agreement entered into by the parties did not enhance the respondent’s rights under the general law. Accordingly, although the appellants raised that issue on appeal, they effectively have a finding in their favour so there is no point in pursuing it. In any event, his Honour’s finding in this regard is correct.

54 So far as a landlord’s duty under the general law is concerned, his Honour had regard to the statement of the High Court in Jones v. Bartlett & Anor (2000) 205 CLR 166; [2000] HCA 56. In that case, the adult son of the tenant of rented premises was injured when he walked into an internal glass door. The door complied with all building requirements at the time of its construction, however, those standards had changed and the door was not of the thickness specified under standards for new doors applicable from 1973. There was no building regulation which required the owner of the premises to replace the glass in doors so as to comply with the regulations in force from time to time unless, for some reason, the glass had to be replaced: see Gleeson CJ at 177; [23]. Gleeson CJ observed (at 177; [22]) that “there was nothing about the premises that alerted or should have alerted the owners to any unusual danger”. The premises had been built to the appropriate standard and regulations prevailing at the time of construction and were adequately maintained. His Honour concluded that the premises were not shown to be defective.

55 In dealing with the alleged liability of the landlord in tort, Gleeson CJ pointed out (at 184; [54]) that the alleged negligence was said to consist of an omission rather than a positive act. The omission was said to be the failure to have an expert assessment of the premises at the time of the lease. It had been argued that if such expert assessment had been carried out it would have been recommended that the glass in the door be replaced. His Honour observed that was an unwarranted supposition, and it appears not to have been supported by the evidence in any event. His Honour concluded (at 184-5; [57] in a passage relied upon by the trial judge in this case as follows:

“There is no ground in principle for imposing upon the respondents an obligation greater than an obligation to take reasonable care to avoid foreseeable risk of injury to their prospective tenants and members of their household. The critical question is as to what is reasonable. The judgment of the Full Court, with which I agree, to the effect that there was no failure to take reasonable care, was a judgment of fact. It cannot be circumvented by an attempt to formulate the legal duty with greater particularity, in a manner which seeks to pre-empt the decision as to reasonableness.
Lord Macmillan observed in Donoghue v Stevenson that the law can only refer to the standards of the reasonable person to determine whether a duty of care exists. The same standards determine whether the duty has been broken. ‘The criterion of judgment must adjust and adapt itself to the changing circumstances of life.’ The capacity to adjust and adapt, which is inherent in the test of reasonableness, would be diminished if a more particular test were formulated. There is no reason to seek to do so. Whether it is reasonable to require an owner of the premises to have them inspected by an expert before letting depends upon the circumstances of the case. There is no answer which is of universal application. Deciding what the answer should be in a particular case involves a factual judgment, and does not provide the occasion for the imposition of a requirement of the law.”

56 Gaudron J considered (at 193; [92]) that there was no basis for imposing upon a landlord a higher duty of care than that cast upon an occupier of premises. That duty was a duty “to take such care as is reasonable in the circumstances”: see Australian Safeway Stores Pty. Ltd. v. Zaluzna (1987) 162 CLR 479. That duty required the landlord “to take reasonable care to put and keep premises in a safe state of repair” (see 193; [93]). Her Honour’s comment must, of course, be viewed in light of the facts with which she was concerned, namely that the premises were required, at the time of letting, to be reasonably fit for the purposes for which they were to be used. This is apparent from the judgment of Gleeson CJ to which I have already referred, as well as from the judgment of Gummow and Hayne JJ (at 215; [173]).

57 Gummow and Hayne JJ (at 213; [167]) considered that it was necessary, in considering the liability of a landlord to a tenant in relation to leased premises, to determine what the content of the duty of care was as, unless that was determined, the question of breach could not be decided. Their Honours defined the content of that duty at 214; [171]:

“Broadly, the content of the landlord’s duty to the tenant will be coterminous with a requirement that the premises be reasonably fit for the purposes for which they are let, namely habitation as a domestic residence.”

58 Their Honours expanded upon this (at 216; [173]) when they said the premises would not be reasonably fit for the purposes for which they were let where the ordinary use of the premises for that purpose would “as a matter of reasonable foreseeability”, cause injury. As their Honours stated at 216; [173]:

“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.”

59 Their Honours listed a variety of matters that might constitute a dangerous defect. One example was the defective flooring in Voli v. Inglewood Shire Council (1963) 110 CLR 74. In that case, the appellant was injured by the collapse of a stage floor. The collapse was due to the floor joists being of insufficient size to support the floor of the stage when a large number of people were on it. The size of the floor joists did not comply with the Council’s building by-laws and were also less than that prescribed by the Australian Standards Association. Notwithstanding, the plans and specifications were passed by the Council’s officers. Voli v. Inglewood Shire Council was, of course, a more obvious example of a dangerous defect than might be the case here, given that the joists did not comply with the then building ordinances and relevant Australian standards. I will turn to that later.

60 Their Honours further pointed out (at 217; [177]) that some dangerous defects will exist at the time of entry into a tenancy agreement, while others may develop during the tenancy. Their Honours considered whether defects should be divided into those which existed at the time of entry into a tenancy agreement and those which arose during the tenancy, but decided that the better approach was to look at the origin of the defect, particularly whether it arose from faulty design or workmanship at whatever stage, or whether it arose from a lack of repair. Their Honours then pointed out that the thread running through the cases was that dangerous defects are defects in the sense that the danger they present accrues in a way that is not anticipated given the normal use to which the premises are put. Their Honours considered that the diligence required to ascertain defects will not, in the ordinary course, require the institution of a system of regular inspection of defects during the currency of the tenancy. Their Honours also observed that the case had been conducted on the basis that the design of the door was defective and there had been a failure to inspect the door before allowing the appellant and the family to move into the residence. Finally, their Honours observed (at 220; [190]) that the duty of care encompasses an obligation to seek the removal of known defects rendering the residential premises safe and to make them reasonably safe by that removal.

61 In my opinion, it is apparent from Jones v. Bartlett that a landlord is under an obligation at the time of the commencement of the tenancy to ensure that premises are reasonably safe for the purposes for which they are let. In this case, that required that the steps be reasonably safe. It did not matter for that purpose that the steps were in place at the time that the appellants purchased the premises, or that there was no breach of any building ordinance at the time that they were built. The question, as properly recognised by the trial judge, was whether the steps were reasonably safe for the purposes for which they were to be put. In that regard, his Honour made this finding:

“… The front steps of the premises were unsafe for the purpose for which they were to be put, namely the principal means of access to and egress from the premises. Unlike the situation in Jones v. Bartlett , the unsafe nature of the steps was, in my opinion, apparent, and was known or should have been known to the [appellants]. This is not a case where reasonableness required the [appellants] to procure inspection by an expert [as was the case in Jones v. Bartlett ]. Rather … [the appellants], in their use of the front entrance from time to time would, or should, if they applied their minds to the question (as, in my view, reasonableness required) have realised that the steps were a potential danger. I reach the conclusion of fact that the [appellants] did not act reasonably from my impression of the photographs tendered in evidence; the evidence of the plaintiff and the matters referred to in the experts’ reports.”

62 His Honour concluded that as a matter of commonsense, causation had also been established.

63 In his argument on the appeal, Mr. Sakoua also referred to the recent decision of this Court in Ridis v. Strata Plan 10308 [2005] NSWCA 246. In that case, McColl JA (at [125]), held that the duty of care owed by an occupier of premises to entrants was to take such care as is reasonable in the circumstances. Her Honour held that prima facie, an occupier had not breached that duty of care by not inspecting the premises for the purposes of discovering unknown and unsuspected defects. That case involved a block of home units. The appellant who was the occupier of one of the units sustained an injury when, putting out his hand to prevent the front door to the common property closing upon him, the glass pane shattered and severely lacerated his arm. The building was an old building and the glass door did not comply with current building standards. The appellants’ claim failed. That case was very different from the present case. In that case, it was not obvious that the glass was unsafe or liable to shatter. Here, the trial judge found that the steps were obviously dangerous. That finding was open to him on the evidence and no basis has been shown as to why it should be disturbed.

64 In my opinion, no error has been shown in the trial judge’s conclusion. It was supported by the evidence. Dr. Cubitt said that the design of the steps, and in particular, an absence of a landing, was contrary to good building practice even in 1973, even though the ordinance in force at that time did not require a landing. He produced evidence of observation of other houses in the area of apparently comparable age where this good building practice had been observed. Dr. Cooke agreed with Dr. Cubitt that the probability of a person falling on the stairs was increased by the lack of a full landing at the threshold of the door, and that good practice required that a landing be built. He qualified his opinion by noting that the design did not breach any regulation at the time of construction, and expressed the opinion it was common practice for a landing not to be built and considered that there had been some compensation for the absence of a landing in the design of the steps due to their depth. In making that comment, however, Dr. Cooke did not, it would seem, take into account the fact that the highest rising is from the top step to the doorway itself, while his comments regarding the practice in the past of not building a landing was made without any detailed material to support it.

65 However, the existence or otherwise of an ordinance requiring a landing at the time the steps were built does not determine whether in this case there was a breach of duty of care by the appellants to the respondent. The appellants’ duty of care arose at the time of the letting. The evidence was that good building practice required that there be a landing and in the absence of a landing some other method of ensuring the safety of the steps, such as a railing. The evidence was that the unsafe condition of the steps was obvious, as a matter of ordinary observation, unlike the position in Ridis. Nor was it a case, as in Jones v. Bartlett where it was not apparent to a lay person that the thickness of the glass was such as to make the door unsafe.

66 In my opinion, the appellants’ position is not protected by the fact that there was no known accident on the steps during the time of Mr. Nounnis’ ownership. All his evidence supported was a conclusion that he had not received a report of any previous fall or injury. It is not known whether during that time the Hibiscus tree overhung the steps to the degree that it did at the time of this letting, nor is it known how frequently the front entrance of the premises was used as compared to the alternative exit at the rear of the premises. These are unknowns which makes Mr. Nounnis’ evidence of only qualified assistance to the appellants’ case. In my opinion, his evidence does do not overcome the trial judge’s essential finding that these steps were unsafe, as a matter of lay observation, as at the date of the letting.

67 As, in my opinion, the appellants had failed to find error in his Honour’s determination, the appeal should be dismissed with costs.

68 BROWNIE AJA: I agree with Mason P.

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