The Owners' Liability to Contribute
82In order to succeed in its appeal against the Owners, Loose Fit must establish that the primary Judge was incorrect to conclude that the Owners, if sued by the Plaintiff, would not have been liable to her in respect of the injuries she suffered and that therefore the Owners were not liable to contribute to the damages awarded to the Plaintiff.
83The High Court has considered the duty owed by a landlord to entrants on leased premises in a number of cases. In Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; 188 CLR 313, the Court discarded the common law rule stated in Cavalier v Pope [1906] AC 428, that a landlord was under no duty of care to persons injured by reason of the landlord's failure to keep the premises in repair.
84The members of the High Court gave different reasons for holding that a landlord was liable for severe injuries sustained by the child of a tenant of residential premises as the result of electrocution. However, Dawson J (with whom Gummow J agreed), stated (at 343) that the landlord's duty of care is:
"that which arises under the ordinary principles of the law of negligence, namely, a duty to take reasonable care to avoid foreseeable risk of injury to the respondent. The nature and extent of the duty in the particular instance depends upon the circumstances of the case."
85Jones v Bartlett [2000] HCA 56; 205 CLR 166, was another case involving a landlord's liability to a family member of a residential tenant. The family member had been injured when he walked into a glass door that had been installed before the landlord acquired the premises. The High Court held that a landlord of residential premises owes a duty of care to the tenant and to the tenant's family members and visitors. Four members of the Court cited with apparent approval the statement of Dawson J in Northern Sandblasting : Jones v Bartlett , at 184 [56], per Gleeson CJ; at 194 [100]; per McHugh J (who dissented as to the result); at 214 [168], per Gummow and Hayne JJ.
86However, the members of the Court differed as to the content of the duty in the case of a lease of residential premises. The alleged negligence consisted of the landlord's failure to obtain an expert assessment of the premises at the time of the lease which would have resulted (so it was said) in the installation of thicker glass in the door. The different approaches taken by the six majority Judges were conveniently summarised by Mason P (with whom Brownie AJA agreed) in Sakoua v Williams [2005] NSWCA 405; 64 NSWLR 588, at 589-590 [4]-[5]:
"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]).
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])."
87In Sakoua v Williams , Mason P quoted with approval (at 590 [9]) a passage from the judgment of Hodgson JA (with whom Sheller JA and Bryson JA agreed) in Ahluwalia v Robinson [2003] NSWCA 175, at [23] as follows:
"... 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 ." (Emphasis added.)
88The primary Judge in the present case took as his " starting point " observations of Gummow and Hayne JJ in Jones v Bartlett , in particular at 217 [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." (Citation omitted.)
In view of this passage, the primary Judge identified (at [97]) the key issue to be whether the absence of a handrail could be properly characterised as a " dangerous defect ", presumably in the sense that the staircase would be rendered dangerous in a way not expected by its ordinary use. His Honour considered that the absence of a handrail was not a dangerous defect in this sense.
89It is important to appreciate that Gummow and Hayne JJ in Jones v Bartlett accepted the general principle stated by Dawson J in Northern Sandblasting . Their Honours made it clear that their more detailed analysis of the duty of care owed was directed to leases of residential premises. Their Honours said this (at 214 [69], 216 [174]):
"169 ... However, [Dawson J's statement] is only the beginning of the inquiry. The difficulty lies in determining the nature and extent of any duty that exists and that which constitutes a breach thereof. The 'circumstances' to be considered may differ between landlord and tenant and landlord and other persons. There is no necessary correlation between the respective duties, although the latter is likely to be less stringent than the former. This case, like Northern Sandblasting , is concerned with a letting for residential purposes. What follows is to be understood with that in mind. That which is required in respect of premises let for commercial or educational or other purposes may well differ , but that is not for decision in this case.
...
174 What constitutes the taking of reasonable steps will, as Dawson J noted in Northern Sandblasting , depend on all the circumstances of the case. What is reasonable for premises let for the purpose of residential housing may be less demanding than for premises let for such purposes as the running of a school, or the conduct of a hotel or club serving liquor. Moreover, the reasonableness of steps to be taken will be affected by the terms of the lease, including the level at which the rental is pitched, the obligations the parties allocated inter se and any specification of limited purposes to which the premises be put. It will also be affected by the terms of any applicable statutes." (Emphasis added.)
90Jones v Bartlett does not stand for the proposition that a landlord of commercial premises breaches the duty of care owed to an entrant onto the premises only if the entrant is injured by a " dangerous defect ". I think that the primary Judge was diverted from the correct enquiry by confining his attention to determining whether the absence of a handrail amounted to a " dangerous defect ". The questions that have to be addressed are whether there was a foreseeable risk of harm to the entrant and, if so, what (if anything) a reasonable person in the landlord's position would have done in response to that risk. The existence of a " dangerous defect " might be an important consideration in answering those questions, but it is not necessarily the only decision. In New South Wales it is necessary also to take account of s 5B of the CL Act.
91As a general proposition, as between the tenant-occupier and the landlord of commercial premises, liability for injuries sustained by an entrant onto the premises will rest primarily with the former. That is because the tenant is generally in possession and has control of the premises and can determine who enters and under what conditions: cf Jones v Bartlett , at 222 [195]. But everything must depend on the particular circumstances of each case.
92The circumstances of the present case are unusual. The Owners undertook substantial renovations of the premises in 2003. They neither sought nor obtained Council approval for the renovations. The reconstructed staircase was not built with a handrail as required by the approval given by Council to the construction of the original staircase in 1977. The approved plans, insofar as they required handrails, reflected the requirements at that time of Ord 70 (see [22] above).
93The primary Judge did not make a finding that the renovations carried out by the Owners required Council approval. However, Mr Kocx in his evidence accepted that he had never made any enquiries of the Council as to whether approval was required. Nor did he make any enquiries as to whether the work being carried out by the builder (who was unlicensed) complied with relevant safety requirements. In fact, as the experts agreed, the failure to install handrails on either level of the staircase contravened the BCA standards for staircases.
94Mr Kocx gave evidence that he had not sought Council approval because the builder told him that approval was unnecessary. Bearing in mind that the premises were to be used as a wellness centre and that the staircase would be used by clients of the centre, it could hardly be disputed that the Owners should have made enquiries as to the safety requirements applicable to the renovations, including the staircase. In any event, it was the conduct of the Owners in undertaking the renovations without complying with the applicable safety standards that created the very hazard that later resulted in the Plaintiff sustaining her injuries.
95Mr Kocx's evidence was that he had never turned his mind, prior to the 2005 lease, as to whether a handrail should be installed on the staircase and that he had never been told that a handrail was required. However, in 2005, as the result of a request made on behalf of Loose Fit, Mr Kocx installed a handrail on the lower portion of the staircase as a safety measure. Since Mr Kocx was well aware that he had made no previous enquiries as to safety requirements for a staircase, the request clearly should have alerted him to the need to make enquiries to ascertain whether a handrail was needed on the upper level as well. He took no such steps.
96The Owners remained the occupiers of the staircase under the 2005 lease but Loose Fit became the occupier under the September 2006 lease. The Owners (by this time represented by Ms Hickie) still took no steps to install a handrail on the upper level or to make enquiries as to whether the staircase complied with safety standards.
97Courts have been reluctant to find that a landlord breached the duty owed to entrants onto the leased premises where the risk to safety was ascertainable only by careful inspection of the premises prior to the lease being entered into. This is not such a case. The Owners created the risk to safety by carrying out the renovations on the premises in a manner that did not comply with safety standards. A simple enquiry, either at the time the staircase was installed or at any subsequent time, would have revealed the true position. At the time the 2006 lease was entered into, the Owners were aware that no enquiries had been made as to whether the staircase complied with safety standards. They clearly should have known that it did not.
98The Owners were aware in September 2006 that Loose Fit had used the premises as a personal training studio and gymnasium, this being the permitted use under the 2005 lease. Between June 2005 (when the 2005 lease commenced) and September 2006 (when the 2006 lease commenced), the Owners were the occupiers of the staircase. The Owners must have been aware that Loose Fit would continue to use the premises as a personal training studio and gymnasium after the 2006 lease commenced, since this was also the permitted use under that lease. The Owners therefore should have been aware that the staircase would continue to be used by Loose Fit's clients once Loose Fit became the occupier of the staircase under the 2005 lease. If it matters, they also should have been aware that the clients might include people of short stature and of solid build. They were in at least as good a position as Loose Fit to appreciate that the absence of a handrail on the upper level of the staircase created a risk to the safety of patrons and that the risk was simple and inexpensive to eliminate.
99At one point in the argument it was suggested that the terms of the 2006 lease indicated that responsibility for installing a handrail rested with Loose Fit. However, there was no provision in the 2006 lease that imposed an obligation on Loose Fit to ensure that the premises complied with safety standards or to undertake work required to make the property safe for clients. Clause 7.4 of the lease imposed an obligation in certain circumstances on Loose Fit to perform structural work needed to make the property safe. However, cl 7.4 only applied if an authority required work to be done on the premises, something that never happened in this case. Even then, cl 7.4 provided that the work was the landlord's responsibility, unless the work was required " only because of the way the tenant uses the property ". The need for a handrail did not come about only because of Loose Fit's use of the premises.
100In these circumstances, a reasonable person in the position of the Owners would have installed a handrail on the upper level of the staircase before entering into the 2006 lease. By failing to do so, the Owners breached their duty of care to the Plaintiff.
101Had the Plaintiff sued the Owners, she would have satisfied the requirements stated in s 5B of the CL Act:
- The risk of injury by reason of the absence of a handrail on the upper level was foreseeable (s 5B(1)(a)).
- The risk was not insignificant (s 5B(1)(b)). The very point of the safety standards to which the Owners failed to adhere was to eliminate or minimise an otherwise significant risk.
- In the unusual circumstances of this case a reasonable person in the position of the Owners would have taken the precaution of installing a handrail before the 2006 lease commenced (s 5B(1)(c)). Such a person would have taken steps to ascertain that a handrail was required by safety standards and would have installed the handrail. The cost of doing so was minimal and the harm that would result if an accident occurred by reason of the absence of a handrail was likely to be serious.
102For these reasons his Honour was in error in dismissing Loose Fit's cross-claim. Loose Fit is entitled to contribution from the Owners in respect of the damages payable to the Plaintiff.