SAKOUA & ANOR v WILLIAMS

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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