65 As the foregoing reveals there was no agreement between the members of the High Court who formed the majority as to the scope of the landlord's duty to the tenants and members of their family. Nor, insofar as the question was considered was there any agreement between Gummow and Hayne JJ on the one hand and Kirby J as to the scope of a landlord's duty to other entrants to residential premises.
66 The scope of an occupier's duty of care in relation to the safety of premises, in particular in relation to the stairs in premises, has been considered in recent decisions of this Court of which only two, Wilkinson v Law Courts Ltd [2001] NSWCA 196 and Francis & Ors v Lewis [2003] NSWCA 152, appear to have been cited to the primary judge. Some have concerned leased residential premises, where the defendant was the landlord. None has distinguished between the duty of care the landlord owed to a tenant as opposed to a visitor.
67 In Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at [2] Gleeson CJ and Kirby J said "[t]he issue of breach of duty in an action framed in negligence is one of fact, although its resolution involves the application of normative standards" and that while "comparisons with similar cases will be made …decided cases in this area are fact-sensitive, and it is a sterile exercise, involving a misuse of precedent, to seek the solution to one case in decisions on the facts in other cases" Nevertheless their Honours recognised that it was "understandable that, in a search for consistency, comparisons with similar cases will be made".
68 With their Honours' caveat in mind, but with a concern to ensure consistency, I turn to consider the decisions of this Court to which I have referred.
69 In Baulkham Hills Shire Council v Pascoe [1999] NSWCA 431 the respondent/plaintiff fell while descending a flight of eight wooden stairs, carrying either three or four chairs, in premises of which the appellant/defendant was the occupier. The stairs were worn. The primary judge concluded the appellant/defendant had been negligent, although the basis for that conclusion does not appear from the judgment. In allowing the appeal Brownie AJA (with whom Sheller and Giles JJA agreed) observed (at [3]) in his ex tempore judgment that "[t]he great difficulty with the plaintiff's case was that he was unable to describe how it was that he came to fall." A "Dr Cook" (who appears to have been the Dr Cooke who gave expert evidence in the present case) gave evidence for the plaintiff. In the course of cross-examination he opined that "there is no such thing as a perfectly safe stair", an opinion Brownie AJA endorsed (at [9]). Brownie AJA would have allowed the appeal on the basis (at [9]) that there was no evidence to justify a finding that the accident occurred by reason of any defect in the stairs. His Honour added (at [10]):
"11 There is a further reason, in my view, why the appeal should be allowed … That is that on the evidence it does not seem to me to have been established that a reasonable person in the position of the respondent ought to have done anything to avert the danger to which Dr Cook referred. As I [sic, this may have been "he"] said, no stairs are perfectly safe, and that although they complied with the appropriate standard they could have been made a bit safer. Many people had used this set of stairs, so far as the evidence goes, without incident. The plaintiff himself had used the stairs on a number of occasions without incident and without, it seems, any sense of alarm."
70 In Taber v NSW Land and Housing Corporation [2001] NSWCA 182 the appellant/plaintiff who was renting premises from the respondent/defendant was injured when she overstepped the bottom step in a flight of four steps down which she was carrying a basket of laundry. She alleged the respondent/defendant had breached its duty of care in failing to erect a handrail. She failed at trial and on appeal. Rolfe AJA (with whom Heydon JA and Ipp AJA agreed) considered (at [40] - [55]) the landlord's duty to a tenant in the light of Jones v Bartlett and concluded (at [56]) that while the "majority of the High Court were of the view that a landlord owes a duty to a tenant [the] duty was expressed in … various ways [but was] consistent with [a] contractual obligation to keep the premises in reasonable repair". He described the steps (at [60]) as "essentially unremarkable" and (at [61]) rejected the argument that the respondent/defendant had breached its duty of care, finding:
"(a) the steps were obvious;
(b) the appellant was proceeding carefully down them until she came to the last when she was very careless;
(c) there was no suggestion that the fourth step, although 25 millimetres short of the code-required width, was inadequate to take her foot if she had placed it upon the step; and
(d) the appellant did not assert that in using the steps in the way in which she was, she suffered any inconvenience or difficulty by reason of other breaches of the code in the construction of the higher steps."
71 In Wilkinson v Law Courts Ltd, the appellant/plaintiff (an athletic 34 year-old) was injured when he fell down the steps outside the Law Courts building in Sydney. There was no handrail, edge-delineation strip or warning sign near the steps. He sued the occupiers of the building. After the accident a white, slip resistant, nosing strip was affixed to the steps giving "a highly visible contrast to each step" and "a number of handrails [were] installed", not in response to the accident but as a result of an access audit of the building conducted by a Commonwealth authority: see [6]). The primary judge concluded that the respondent/defendant had not breached its duty of care and that the appellant had not established the accident was caused "by anything other than a mistake he made in the way he placed his feet as he descended the stairs": see [10]. Heydon JA (with whom Meagher JA and Rolfe JA agreed) said, in rejecting the allegation the respondent had been negligent in failing to provide a handrail:
"21 The proposition that the failure to have a handrail at or near the place of the accident was a breach of duty encounters the difficulty that the steps run a considerable distance from north to south and turn a corner to run a further distance from west to east. Members of this Court, obviously, have observed the steps and the way they are used thousands of times. Pedestrians go up and down the steps at numerous points along their length and at a great variety of angles. The defendant was sued as the occupier of premises. An occupier of premises is only required to take such care as is reasonable in the circumstances. The duty is not to make the premises as safe as "reasonable care and skill on the part of anyone can make them", as Gleeson CJ, [sic, this should be Gaudron J] speaking of landlords as a sub-class of occupiers, said in Jones v Bartlett (2000) 75 ALJR 1; 176 ALR 137 at [92]. If safety was to be assured by procuring that every user of the steps had a handrail within reach, a handrail would be needed at many points along the considerable length of the steps. An extensive system of railings would be expensive. It would be ugly, which is not irrelevant: Phillis v Daly (1988) 15 NSWLR 65 at 68F-G; Jones v Bartlett (2000) 75 ALJR 1; 176 ALR 137 at [23]. The plaintiff points out that people using the steps may be seriously disabled. It may also be pointed out that many users of the steps are carrying bags or folders, or are manoeuvring trolleys. Any system of handrails would have to accommodate their needs. It would also interfere with many customary uses of the steps. …
22 The steps were obvious in appearance, their edges were clear, there were not many of them, and dimensions and variations in the step sizes have not been shown to create any danger or create any inadequacy in them if they were properly used. In Stannus v Graham (1994) Aust Torts Reports ¶81-293 at 61,566, Handley JA pointed out that there are 'extensive steps outside public buildings in Sydney such as the Joint Courts Building, the Public Library, the Art Gallery, Parliament House and the Opera House. A handrail is not to be found within reach of every person using these steps'.
…
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…"
72 In North Sydney Council v Pamela Plater [2002] NSWCA 225 the plaintiff was injured when descending concrete stairs in the defendant's multi-storey car park. To the extent she was able to describe how she came to fall, she said (see [38]) "she put her foot out, it touched the step very briefly, and she fell down the stairs." The stairs had been constructed in the late 1960's or early 1970's, and complied with all relevant ordinances and standards at the time of their construction. Each step had two strips of carborundum material placed towards its nose. The primary judge found (see [39]) that the plaintiff fell "because her foot landed on the nosing which did not offer her sufficient friction", and that the carborundum strips provided no assistance to her "because her foot would not come to rest on the strips on the tread". There was no specific evidence as to wear on the nose of the steps, save that from a photograph the primary judge concluded that the nose was worn. Giles JA (with whom Handley JA agreed) having observed (at [40]) that "the photograph was most indistinct" reversed the primary judge's conclusion that the defendant had breached its duty of care, saying (at [43]):
"43 The claimant was not obliged to take care to ensure that the stairs offered as much friction at the nose as possible. It was required to take reasonable care for the safety of users of the stairway. From the evidence of the opponent's prior usage without incident, and the lack of evidence of other slips or falls, the stairs fulfilled that requirement. From the expert evidence of the friction offered, they met that requirement, and there was no evidence on which it could properly have been found that the surface at the nose of the steps was unreasonably slippery."
73 In Owners Strata Plan 30889 v Perrine [2002] NSWCA 324 the plaintiff/respondent was injured when she fell down a flight of stairs at the entrance of a Credit Union located at Parramatta in a building owned by the appellant/defendant. The primary judge concluded (see [7]) the appellant/defendant had breached its duty of care "[b]y reason of a combination of factors relating to the design of the building, the comparative darkness of the foyer to the brilliant sunshine outside, the same coloured nosing on the steps which made them just that much harder to see on a very sunny day and the lack of a handrail to break the fall…" In reversing the finding of negligence, Santow JA (with whom Sheller JA and Davies AJA agreed) held:
"44 The lack of the handrail to break the fall presupposes an obligation to have one. This is when there is no basis for that in Ordinance 70. Moreover, the duty of an occupier of premises is not to make the premises as safe as 'reasonable care and skill on the part of anyone can make them (Gleeson CJ [sic, this should be Gaudron J] speaking of landlords as a sub-class of occupiers in Jones v Bartlett (2000) 176 ALR 137 at [92] ). Rather it is 'to take such care as is reasonable in the circumstances; compare Wilkinson v Law Courts Ltd [2001] NSWCA 196 at [21]. Accepting that the Respondent would not have used the stair-rail save as a possible way of breaking her fall, her description of the accident and its suddenness at the first step strongly militates against the possibility that she would have had the opportunity to stop that 'free fall' in time; that is by reaching for a railing even if she were close enough to it."
74 In Francis & Ors v Lewis the respondent/plaintiff slipped when ascending an external fire escape (which was wet from rain), which she had traversed hundreds of times before. The stairway was in commercial premises leased by her employer from the appellants/defendants, the building's owners. The stairway was steep, consisting of 19 steps without a landing. The top step was three and half metres above the ground. It was made of steel. The left side was adjacent to a wall. There was a handrail on the right side comprising a single rail consisting of a 35mm diameter pipe at a height of 865mm, but the respondent/plaintiff did not have a hold of it when she slipped. When she slipped, she started to fall backwards and down, put out her left hand and grabbed at the step in front of her, but she swung to the right and passed under the handrail. She fell to the concrete below and was injured. Dr Cooke gave evidence, on this occasion for the appellants/defendants, which was accepted by the primary judge that on the basis of the relevant code and ordinance, a mid-rail was not mandatory. Nevertheless, the primary judge found the appellants to have been negligent in failing to make the stairs safe by ensuring that there was a mid-rail, i.e. a second rail approximately halfway between the existing handrail and the stairs. In his Honour's view "it was foreseeable … that persons such as the plaintiff using the stairs may slip, fall and need a mid-rail to prevent their falling off the stairs and injuring themselves…[t]he risk of injury was neither far-fetched nor fanciful, but in the circumstances it was real [and] [a] mid-handrail was a practical and relatively cheap preventative measure": see judgment at [5] - [6], [9], [16], [21], [23], [55] per Mason P (with whom Hodgson JA substantially agreed and Tobias JA agreed). There was no debate about the nature of the appellants' duty of care and the issue of breach was determined in accordance with Wyong Shire Council v Shirt at 47-8: see Mason P (at [39]). Mason P said:
"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). [His Honour then set out para [32] from Wilkinson v Law Courts Ltd]."
75 The Court dismissed the appeal. Mason P held (at [53]) that the fact the steps were steep, exposed to the elements, had one more riser than the maximum permitted for a fire escape under Ordinance 71 and had no landing "made them inherently dangerous, more so than many stairways encountered in everyday life" and (at [59]) that the gap between the handrail and the stairs was dangerous. He said:
"54 It was reasonably foreseeable that persons might slip and fall when ascending or descending these stairs. This could happen in circumstances either involving fault or absence of fault on the part of the user. It was equally foreseeable that some persons using the stairs would be carrying things and thus be impeded in their capacity to hold or grab hold of the handrail.
55 What to my mind was also quite foreseeable was the possibility that, if a person slipped and fell, then he or she might slide off the edge and fall to the concrete below. The gaps between the balustrades spanned six steps in the middle section and five steps at the top. The top step was three and half metres above the floor surface and it was obvious that a person who fell could suffer serious injury. On the Shirt calculus, the risk was 'real' (in Sorby DCJ's words) and the probability of its occurrence was in my view not negligible.
56 There were available and relatively cheap means of avoiding or minimising this risk by providing a mid-handrail or some equivalent barrier."
76 Similar observations were made by Basten JA in Brock v Hillsdale Bowling & Recreation Club Ltd [2007] NSWCA 46 (at [57]).
77 Ahluwalia & Ors v Robinson [2003] NSWCA 175, did not concern a staircase accident, but did concern a visitor to leased residential premises. The respondent/plaintiff was injured when she slipped on water on the floor of the bathroom in premises leased by the father of her son. Her right foot went through a glass shower screen, which shattered causing her substantial injury. The shower screen was not constructed with safety glass, and, it appears (see [9]), was not required to be constructed with such glass when the premises were built. The respondent/plaintiff was present to collect her son who had been on an access visit with his father who rented the premises from the appellants/defendants. The trial judge held (see [11]) that the appellants had breached their duty of care because, having regard to a number of reports by the managing agent of defects in the premises requiring repairs, they should have arranged for an expert inspection of the premises to ensure they were fit for habitation. His Honour also held that on such an inspection, the presence of the annealed glass would have been discovered and, sub silentio, it would have been replaced with safety glass. If it had been the respondent's foot would not have penetrated the glass. In this Court the appellants submitted, on the basis of Jones v Bartlett, that a verdict for the appellants was required.
78 The case appears to have been approached on the basis that the landlord's duty to the respondent was conterminous with that owed to the tenant. Hodgson JA (with whom Sheller JA and Bryson JA agreed) said:
"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. " (emphasis added)
79 While his Honour was of the view (at [25]) 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", so that "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", he rejected the proposition (referring to Jones v. Bartlett at [19], per Gleeson CJ and to [250] and [251] per Callinan J) "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."
80 The different approaches in Jones v Bartlett to the issue of a landlord's duty of care to a tenant were analysed by Mason P (with whom Brownie AJA agreed) in Sakoua & Anor v Williams [2005] NSWCA 405; (2005) 64 NSWLR 588. In that case the respondent/plaintiff brought proceedings against the appellants/defendants, from whom she rented a residential property, after she was injured when she fell down the three front steps of the property. There were three steps in all, with a fourth riser up into the house (see Beazley JA at [42]). The respondent alleged the appellants were negligent in failing to provide safe access to the house and that, inter alia, the absence of a handrail and landing on the stairs made them unsafe. Both parties led expert evidence from which the primary judge concluded, relevantly, the construction of the premises did not involve any breach of the building ordinances that applied at the time of construction.
81 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 [and] … that the unsafe condition of the steps was obvious, as a matter of ordinary observation: see Beazley JA (at [65]). The trial judge found the appellants to have been negligent and the respondent to have been guilty of contributory negligence. In his Honour's view, 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, that the unsafe nature of the steps was apparent, and was known or should have been known to the appellants who should have realised, if they applied their minds to the question (as, in his Honour's view, reasonableness required) that the steps were a potential danger: see Beazley JA at [61]. The Court by majority (Beazley JA dissenting) allowed the appeal.
82 Mason P said (at [3]) that Jones v Bartlett established that "the lessor of residential premises owes a duty of care to an incoming tenant (and by extension to the tenant's visitors) [but that] [t]he scope of that duty was not … formulated in identical terms by their Honours". He added (at [8]) that "none of the majority reasons extended a landlord's duty to repair beyond a requirement to address defects of which he or she was aware, or ought to be aware [and that] … each … defined 'defect' in this context to mean something more than a condition capable of causing injury" (emphasis added). His Honour concluded (at [22]):
"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 ."
83 His Honour also rejected (at [23]) the proposition that "the 'obviousness' of the dangers identified provide a basis for liability" (cf Beazley JA at [63]), saying "[s]uch obviousness was equally apparent to both parties and is not, in itself, a criterion of liability." He then said:
"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. [His Honour then repeated his remarks in Francis v Lewis (at [40]-[41]) set out above and continued].
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.