Ahluwalia & Ors. v. Robinson [2003] NSWCA 175

LOWER COURT District Court JURISDICTION : LOWER COURT DC70226/98 FILE NUMBER(S) : LOWER COURT English DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40827/02 DC 70226/98

SHELLER JA HODGSON JA BRYSON J

Thursday 3 July 2003 AHLUWALIA & ORS. V. ROBINSON Judgment 1 SHELLER JA: I agree with Hodgson JA. 2 HODGSON JA: On 23 August 2002, English DCJ gave judgment in the sum of $139,037.40 in favour of the respondent Belinda Terese Robinson against the appellants Ajit Kumar Ahluwalia and Kanta Ahluwalia (who were the first defendants below and who I will call "the owners") and Manyara Pty. Limited (which was the second defendant below, and which I will call "the landlord"). 3 The owners and the landlord appeal to this Court from that judgment.

CIRCUMSTANCES 4 The facts giving rise to the respondent's claim are no longer in dispute, and can be summarised briefly. 5 The respondent was born on 12 September 1974 and she was 21 at the date of her injury on 4 November 1995. She was the mother of a one year old son, whose father was Jason Read. The respondent had custody of her son, and Mr. Read had access. 6 On and from 2 July 1994, Mr. Read was the tenant from the landlord of the property 51 Renwick Street, Wyoming, owned by the owners. 7 At about 4.30pm on Saturday 4 November 1995, the respondent went to those premises to pick up her son from Mr. Read. When she arrived, she went into the house and into the bathroom, where Mr. Read was bathing the child. The respondent asked Mr. Read to hurry up, and she turn to walk out of the bathroom. There was water on the floor, and the respondent slipped and her right foot went through a glass shower screen, which shattered causing her substantial injury.

THE RESPONDENT'S CLAIM 8 The respondent commenced proceedings against the owners and the landlord, giving the following particulars of negligence: (i) Failing to provide a safe shower screen; (ii) Leasing the premises when the Defendants knew or ought to have know (sic) that the premises were not in a reasonably fit condition for use as a residence in that the glass shower screen was unsafe and likely to cause injury upon impact; (iii) Failing to provide and ensure the premises remain in a reasonable state of repair; (iv) Failing to ensure that safety glass was fitted to the shower screen; (v) Failing to install safety glass in the shower screen in accordance with the Australian Safety Standards; (vi) Failing to warn the Plaintiff of the unusual damage of the glass in the shower screen breaking and splintering on impact; (vii) Failing to provide protection from impact with the shower screen: (viii) Exposing the Plaintiff to a risk of injury which could have been avoided by reasonable care on the part of the Defendants; (ix) Failure to instruct the lessee properly or at all in relation to safety requirements on entry to the bathroom; (x) Failing to ensure that the flooring in the bathroom was safe to walk on when wet; (xi) Failing to provide non-slip surface on the tiles in the bathroom; (xii) Failing to properly inspect the premises so as to become aware that the shower screen was unsafe and likely to break and splinter causing injury upon impact; (xiii) Failing to properly inspect the premises so as to become aware that the bathroom floor tiles were slippery and unsafe to walk on when wet; (xiv) Failing to employ competent servants, workmen or agents in design, maintenance, repair, installation and/or replacement of the shower screen and bathroom tiles; (xv) Failing to ensure the premises were in a reasonable state of fitness for habitation.

FINDINGS OF PRIMARY JUDGE 9 The primary judge found that the glass used in the shower screen was not safety glass but annealed glass, a product available in Australia between about 1930 and 1972; that the house was built prior to 1970; that there was no requirement that a shower stall be glazed with safety glass until after 1 July 1972; and that the shower screen in the house had probably been installed prior to that date. 10 The primary judge found that the property (a three-bedroom fibro dwelling) was purchased by the owners in 1989; and she accepted the owners' evidence that no alterations to the bathroom had been carried out prior to the accident. She also found that a visual inspection by a lay person would not have disclosed that the glass was not safety glass. 11 However, she found that the house had not been adequately maintained, and that it constantly required attention to make it habitable. She continued: I find the defendants were on notice that there were defects in the house because of its age and condition that rendered it hazardous to occupy. I find a prudent landlord/property owner would, having regard to the number of reports by the managing agent of defects requiring repairs, would have arranged for an expert inspection of the premises to ensure they were fit for habitation.

A shower screen not constructed of safety glass renders a bathroom hazardous to anyone using the bathroom for legitimate purposes or otherwise. Hence the introduction of legislation governing the use of safety glass referred to by the experts in their various reports.

It is common sense that the presence of water on a bathroom floor creates a slipping hazard. Had the defendants had an inspection carried out of the premises I find that the presence of the annealed glass would have been discovered. Had the defendants replaced that glass to the minimum standard required it is more probable than not that when the plaintiff slipped on the wet floor, and struck the glass, her foot would not have penetrated the glass causing her to sustained (sic) serious injury.

For those reasons there will be a verdict for the plaintiff on liability.

GROUNDS OF APPEAL 12 The appellants rely on the following grounds of appeal: 1. Her Honour erred in ruling that a landlord of residential premises owed a duty of care to an entrant, who was not a member of the tenant's household, to ensure that a shower screen was glazed in safety glass. 2. In circumstances where the learned trial judge found: (a) the house was built prior to 1970, probably in the 1950's; (b) the construction of the premises was in accordance with the standards of the time; (c) there was no requirement that a shower screen be glazed in safety glass prior to 1972; (d) the appellants purchased the property in 1989; (e) a visual inspection by a lay person would not have discovered the fact that the glass shower screen was not safety glass; and (f) the fact that the glass shower screen was not safety glass, and the significance of that fact, was not known and was unsuspected by the appellants, her Honour erred in finding the appellants negligent.

Her Honour erred in law in failing to follow the decision of the High Court of Australia in Jones -v- Bartlett [2000] 205 CLR 166 and in particular by holding: (a) that a landlord's duty of care was one to ensure that reasonable care was taken, rather than simply to exercise reasonable care; and (b) that the landlord has a duty to engage a suitably qualified expert to discover that the shower screen was not glazed with safety glass and to replace it prior to the Respondent's injury when the "defect" (if it be such) was unknown and unsuspected to exist.

Further, or in the alternative, her Honour erred in law in holding that a special duty over and above that defined by Jones -v- Bartlett arose by reason of the appellants being "on notice that there were defects in the house because of its age and condition that rendered it hazardous to occupy".

There was no evidence to support the proposition that the premises were hazardous to occupy.

There was no evidence that the appellants were on notice that the premises were hazardous to occupy by reason of a defect in the condition of the shower screen.

The learned trial judge erred in admitting into evidence, over the objection of the appellants, "the agent's file" - Exhibit L, and her reliance upon that material constituted a miscarriage of justice.

The learned trial judge erred in law in holding that the appellants' duty of care required "expert inspection of the premises" prior to letting them and in particular (one must necessarily assume, for there was no express finding in this regard) by an expert glazier.

Her Honour erred in holding that legislation governed the use of safety glass rather than Australian Standards.

AGENTS' FILE 13 In coming to the conclusion that the appellants should have had the house inspected, the primary judge relied on the contents of the file concerning the house maintained by the real estate agents engaged by the landlord (the agents' file), the parts relied on by the respondent being summarised by her legal advisers as follows: 25.01.90 - Crack in wall of shower recess and mildew 16.06.90 - Tenant complains of mould throughout the house and water on walls 21.08.90 - Landlord rejects expense of installing new air vents 23.03.91 - New lease at $165.00 15.04.91 - Cracking and mould in shower recess 12.09.91 - Need to replace 3 rusted downpipes and nozzles and to clean roof and gutters which were choked with leaves 24.09.91 - Condition Report shows a number of defects with the bathroom including • paint peeling and mildewed • very bad mould • shower screen doors damaged/not on • big crack in back of shower The general comment as to the condition of the premises is "BAD" 21.11.91 - Maintenance complaint relating to kitchen taps and painting 20.12.91 - Rusted water pipes in the ground under the house needed replacing 06.01.92 - Tenant complains of brown water running through house 23.01.92 - Loungeroom light fitting found to be "alive" 15.05.92 - Light in kitchen needed to be replaced as the old one was beyond repair 05.06.92 - Fresh lease. Rent drops from $165.00 to $160.00 per week June 92 - Condition Report for the bathroom shows crack in the shower and mildew in the shower base Sept 92 - Tenants abandon premises 14.11.92 - New tenant found. Rent drops from $160.00 to $150.00 per week 20.11.92 - Tenant complains of leaking toilet 1992/93 - Significant agent's memo or letter to Dr Ahluwalia - "Imperative that attention be given to the following repairs" and 7 items are listed. These do not appear to have been remedied. 20.09.93 - Stove not working. Electrician reports "Replacement may be more cost effective than repair". (Notwithstanding this, defendants do not replace stove) 28.09.93 - Back fence falling down 23.02.94 - Sewer pipes choked up 13.04.94 - Toilet flush not working and broken tiles on toilet floor 15.04.94 - Tree roots in sewer pipe 21.04.94 - Agent's letter to landlord saying that fair rental is only $150.00 per week (rent had been $165.00 per week in March 1991) 17.05.94 - Quote for new guttering 18.05.94 - Quote to remove mould and to paint inside 18.05.94 - Condition Report says bedroom badly mould affected and window sill peeling 08.06.94- Quote for repairs (including tiles to cover up dry rot around kitchen sink rather than repair dry rot) 10.06.94 - Old stove not working but landlord acquires a secondhand replacement rather than a new one 02.07.94 - Lease to Read at $165.00 per week 15.07.94 - Maintenance complaint - • hot water service leaking • painting not good 31.08.94 - Maintenance complaint • paint peeling • carpet falling apart • broken window 14.09.94 - Sewerage overflowing in back yard 01.10.94 - Electrical shocks off taps 22.09.95 - Waste water from washing machine and tub overflowing into patio area. Not connected to sewer but to old absorption pit.

SUBMISSIONS 14 Mr. Campbell SC for the appellants submitted that this case was so much on all-fours with the case of Jones v. Bartlett (2000) 205 CLR 166 that a verdict for the appellants was required. He submitted that the primary judge's statement that a prudent landlord/property owner would have arranged for an expert inspection of the premises "to ensure they were fit for habitation" showed that the primary judge was acting on the basis that the landlord's duty was more stringent than that established in Jones v. Bartlett. 15 Next, Mr. Campbell submitted that the agents' file did not in any way bring to the attention of the appellants any defect or problem with the shower screen. At most, it showed a number of matters requiring attention in relation to such things as electricity wiring, plumbing and drainage; and a full reading of the file showed that these matters were in any event attended to. There was no suggestion of any complaint concerning the safety of the glass in the shower screen. 16 Accordingly, Mr. Campbell submitted, the primary judge was in error in holding that reasonable care to avoid foreseeable risk of injury would have required the engaging of an expert to consider all aspects relating to the safety of the premises; and in any event, was in error in holding that such an expert would, on the balance of probabilities, have detected that the shower screen was not safety glass and would have recommended its replacement. He pointed out that Dr. Cook, the very highly qualified expert called by the appellants, could not have determined by inspection whether or not the subject glass was safety glass, unless it was marked as such; and although the Australian Standard requires that safety glass be marked as such, Dr. Cook was, prior to cross-examination, unaware that there was this requirement. 17 Mr. Campbell referred to the following paragraphs in the judgments in Jones v. Bartlett: [15], [20], [23]-[25], [89], [92], [176] and 197]. He also referred to Short v. Barrett NSWCA 5/10/90, King v. Stewart (1994) 85 LGERA 384 and Baker v. Gilbert [2003] NSWCA 113. 18 Mr. Campbell submitted that the cases did not support the proposition that problems concerning certain aspects of the house gave rise to a duty to have a complete safety inventory before the property could be rented; and, even assuming there was such an inventory and even assuming that the lack of safety glass had been pointed out, the cases did not support the proposition that there was a duty to replace the annealed glass with safety glass. 19 Mr. Fennell for the respondent submitted that the case should be distinguished from Jones v. Bartlett. He submitted that the continual complaints by tenants and continual correspondence from the agents concerning problems with the house, over such a period, meant that an expert's inspection was called for. While there may be no general duty on a landlord to search for latent defects, where as in this case (and not in Jones v. Bartlett) the premises are dilapidated, the circumstances could be such as to call for a general inspection of the property to assess its safety. 20 Mr. Fennell pointed out that, from July 1972, a local government ordinance expressly required that safety glass should be "used in every glass panel or glass door enclosing or partially enclosing a shower or bath". Although this ordinance applied in its terms only to building work, and thus did not require the replacement of existing glass, it was an indication of what reasonable precautions for safety would require, particularly when this requirement had been in existence for over thirty years. The replacement of this glass by safety glass would only have cost about $350.00. 21 Mr. Fennell submitted that it was open on the evidence for the primary judge to infer that an expert would have detected that safety glass was not being used, and would have recommended the replacement of the glass as being unsafe. 22 Mr. Fennell submitted that Jones v. Bartlett indicated that, whether or not there was a duty to inspect and to replace items that may be dangerous depended on the circumstances of the case (see [58]) and that ultimately whether this was so depended upon the requirement on the landlord to take reasonable care to avoid foreseeable risk of injury (see [168]). Mr. Fennell also referred to pars.[173], [174], [188] and [250]. Mr. Fennell also relied on Assaf v. Kostrevski (1999) NSWConvR 55-883.

DECISION 23 In my opinion, 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. 24 In this case, the only basis on which the primary judge found there was a foreseeable risk of harm from the shower screen was through a finding that a reasonable person would have commissioned an expert to inspect the premises generally. Apart from that consideration, there was no suggestion and no finding that the appellants were aware or should have been aware of any danger associated with the shower screen itself. 25 There is some force in the view of the primary judge and the submissions for the respondent that the history of problems with the house suggested by the agents' file was such that there was a foreseeable risk of injury from faulty electrical wiring and/or a foreseeable risk to health from faulty plumbing and drainage. On that basis, reasonable care might have required that there be an inspection by an electrician and/or a plumber to make recommendations as to what should be done to deal with these risks. However, it does not seem to me that these foreseeable risks would mean that reasonable care would have required that there be a report obtained from experts in other areas, or a person with general building or architectural expertise. In Jones v. Bartlett at [19], Gleeson J said this: 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.

At [250] and [251], Callinan J said this: 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. 26 In my opinion, those remarks are apposite to this case. 27 Furthermore, even if a person with some general expertise in building and/or architecture had been engaged, I do not think there was evidence before the primary judge that could justify a finding on the balance of probabilities that such an expert would have detected that the glass in the bathroom shower was not safety glass and would have recommended its replacement. Even the highly qualified expert called for the defendant was not aware that safety glass was required to bear a label that showed it was safety glass and would not, otherwise than by such a label, have been able to determine whether the subject glass was or was not safety glass. In circumstances where the legislature and the Australian Standard have made a requirement for new installations that safety glass be used, but have refrained from imposing any requirement for replacement of glass which is not safety glass, it is not clear that an expert would have included a recommendation that the glass be replaced in any event. 28 Furthermore, even if such an expert had made an inspection and made such recommendation, it seems almost certain that the expert's report would have suggested many other matters in relation to the house, in particular in relation to the electrical wiring, plumbing and drainage. When one has regard to the nature of the premises and the rent being obtained, there is a real question as to whether reasonable care would then have required the replacement of the glass, either as one of a number of items to be attended to or perhaps as a matter given priority over other items. If such a report had recommended replacement of the electrical wiring, plumbing and drainage systems, as well as replacement of the shower glass, perhaps among other things, and if those recommendations had all been complied with, then it seems likely that they would have required very substantial expense, that would in turn have been reflected in the rent asked for the property. 29 In any event, in my opinion the circumstance that the history of maintenance of the house suggested problems with the electricity system and the plumbing and drainage could not support a conclusion that the glass in the shower enclosure was matter giving rise to a foreseeable risk of injury; and in those circumstances, in my opinion, the decision of the primary judge was in error, and no breach of duty by the appellants was established.

CONCLUSION 30 For those reasons, in my opinion the following orders should be made: 1. Appeal allowed with costs. 2. Respondent to have a suitors fund certificate if otherwise entitled. 3. Judgment below set aside, and in lieu thereof judgment for the appellants, and respondent ordered to pay the costs of the proceedings. 31 BRYSON J: I agree with Hodgson JA. **********

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