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.