The Duty of Care .
40 The duty of care owed by a landlord to a tenant was considered in detail by the High Court of Australian in Northern Sandblasting Pty Limited v Harris (1997) 188 CLR 313, albeit in a case involving a defect. In view of the High Court's analysis of and remarks concerning that decision in Jones v Bartlett (2000) 75 ALJR 1, 176 ALR 137, I think it preferable to turn to that case immediately. The facts were that the appellant, who was the son of tenants of a residential property, suffered injury by putting his knee through an internal glass door of the property. The glass in the door complied with the building standards and regulations at the time of its construction, although the glass did not comply with newer standards which would have been applicable had the house been constructed immediately prior to entry into the lease. At first instance it was found that the accident occurred because the appellant, who had been living in the house with his parents for about four months, walked into the door without looking to see whether it was open or closed. The alleged negligence or breach of contractual duty was stated to be the failure to have an expert inspect the premises before they were let, and the failure to have the glass in the door replaced with thicker glass, which would have complied with the more up to date safety standards. It was also found, at first instance, that the costs of replacing the door would have been cheap relative to the risk of the danger and the potential gravity of injury, and that the defendants were negligent by failing to have the premises adequately inspected for safety prior to allowing the plaintiff's parents into possession, on the basis that it was likely that such an inspection would have resulted in the state of the glass door being brought to the defendants' attention in which case they should have known that its present state gave rise to serious danger and replaced it with a door that complied with the safety standard at the time. The Full Court of the Supreme Court of Western Australia reversed that decision.
41 In the Full Court the leading judgment was delivered by Murray J. Portion of it is set out in the judgment of Gleeson CJ at par 18. Murray J expressed the view that in the circumstances established at trial there was a very remote prospect of a collision between a person and the glass in the door, although once that occurred the risk of injury was substantial:-
"... there was no danger that would occur without such a collision, or when the door was used normally. Certainly it was, on the evidence, a well trafficked area allowing access between the interior of the house and the backyard, but the door was positioned so that it could be clearly seen and the fact that it was made of glass in a wide wooden frame clearly observed. The handle was readily accessible. It formed no trap to the ordinary user of the door, particularly not to an adult".
42 Gleeson CJ, at pars 19 and 20 said:-
"(19) 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 on to 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 at the time when the house was built. There was no reason why it would have been the focus of special attention.
(20) Having reached that conclusion, it was unnecessary for Murray J to go on to deal with the finding at first instance that, if there had been such an assessment, there would have been a recommendation to replace the glass in the door. It has already been pointed out that there was no evidence to justify that finding. It also suffers from the defect of involving unjustifiable ex post facto concentration on the door".
43 His Honour then proceeded to a consideration of the case and referred to the difference between English and Australian common law in relation to the obligation to a tenant, noting, in relation to Northern Sandblasting, that the extent of the difference "was not made completely clear". He also observed that Northern Sandblasting was a case in relation to "defects".
44 In pars 22 and 23, his Honour continued:-
"(22) In the present case, we are not concerned with a dwelling house that was dilapidated or tumble-down, or that contained negligently installed and dangerous electrical wiring. There was nothing about the premises that alerted, or should have alerted, the owners to any unusual danger. The premises were constructed in accordance with the standards prevailing at the time, and, were adequately maintained.
(23) There is no such thing as absolute safety. All residential premises contain hazards to their occupants and to visitors. Most dwelling houses could be made safer, if safety were the only consideration. The fact that a house could be made safer does not mean it is dangerous or defective. Safety standards imposed by legislation or regulation recognise the need to balance safety with other factors, including cost, convenience, aesthetics and practicality. The standards in force at the time of the lease reflect this. They did not require thicker or tougher glass to be put into the door that caused the injury unless, for some reason, the glass had to be replaced. That, it is true, is merely the way the standards were framed, and it does not pre-empt the common law. But it reflects common sense".
45 His Honour nextly quoted from the decision of Mahoney JA in Phillis v Daly (1988) 15 NSWLR 65 at 74, where his Honour said:-
"There are dangers on any premises. A room may have a desk or a table. There is a danger that if I fall, I will hit my head on it and my skull will be fractured. If the desk or table were not there, I would suffer little or no harm. And the danger is obvious: people do slip and fall. And the injury may be serious. But the obvious foreseeability of such an injury and its seriousness does not involve that, if a person falls and hits his head on a table, there must have been a breach of duty by the occupier of the room. And this notwithstanding that people may live without tables and that tables may be easily removed".
46 Gleeson CJ said:-
"(25) It is interesting, and not without relevance, to speculate about how many objects in and around an ordinary dwelling house would constitute a potential hazard to a person who behaved as carelessly as the appellant .
(26) I do not accept that the condition of the respondent's premises was shown to be defective in any relevant sense". (My emphasis.)
47 At par 90, Gaudron J said:-
"For the appellant to succeed in this case, there must now be recognised a duty on the part of a landlord of residential premises to ensure that those premises are as safe for residential use as reasonable care and skill on the part of anyone can make them. And it must also be held that it is reasonable, at least in the circumstances of this case, to replace items which, though not defective, involve a foreseeable risk of injury if safer items are available".
48 Her Honour was of the view, par 92, that:-
"As the occupier of premises is only required to take such care as is reasonable in the circumstances, a landlord should not be subjected to a higher duty to make premises as safe for residential use as reasonable care and skill on the part of anyone can make them . And given that the parties to a tenancy can stipulate as to its terms, there is no reason, in my view, why the duty of landlord should extend beyond a duty to put and keep the premises in safe repair". (My emphasis.)
49 McHugh J, par 100, said:-
"The common law duty of care owed by a landlord to a tenant and other members of the tenant's household is to take reasonable care to avoid foreseeable risks of harm to those persons having regard to all the circumstances of the case. The duty extends to dangerous defects but is not limited to them."
50 In par 101, his Honour continued:-
"Among the relevant circumstances that generate the standard of care owed by the landlord are the right or capacity of the landlord to inspect the premises, the age and condition of the premises, the ages and the physical and mental capacities of persons who will use them, the use to which they will be put, the nature and degree of the risk of injury and the cost or inconvenience of eliminating that risk. As in other areas of the law of negligence, the relevant circumstances will include both those of which the landlord knew and those which the landlord ought reasonably to have known".
51 Gummow and Hayne JJ, after a detailed consideration of the content of the duty of care, said, at par 171:-
"The relationship between landlord and tenant is so close and direct that the landlord is obliged to take reasonable care that the tenant not suffer injury. In considering the degree of care which must be taken, and the means by which a tenant may be injured, it must be borne in mind, as already discussed, that ordinarily the landlord will surrender occupation of the premises to the tenant. Thus, the content of any duty is likely to be less than that owed by an owner-occupier who retains the ability to direct what is done upon, with and to the premises. Broadly, the content of the landlord's duty to the tenant will be co-terminous with a requirement that the premises be reasonably fit for the purposes for which they are let, namely habitation as a domestic residence".
52 At par 173 their Honours continued:-
"Premises will not be reasonably fit for the purposes for which they are let where the ordinary use of the premises for that purpose would, as a matter of reasonable foreseeability, cause injury. The duty requires the 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".
53 After considering dangerous defects their Honours considered, in pars 174 and 175, the reasonableness of steps to be taken in all the circumstances of the case.
54 At par 252 Kirby J said:-
"Such landlords, until now, have been entitled to assume that their duty was limited to that of taking reasonable care to avoid foreseeable risk of injury from defects of which they were on notice or of which (by appropriate inspection) they would reasonably become aware because they were obvious to a reasonable landlord or its agents".
55 Callinan J, at par 289, expressed the view that if any duty were owed, as to which he was far from convinced, he would define it:-
"... as no more than a duty to provide, at the inception only of the tenancy, habitable premises. And that the respondents in this case surely did".
56 The majority of the High Court were of the view that a landlord owes a duty to a tenant. That duty was expressed in the various ways to which I have referred. It is consistent with the contractual obligation to keep the premises in reasonable repair. The first question, which arises in this case, is whether the respondent discharged that duty in all the circumstances. The principal and, perhaps in the end, only way in which it was argued that the duty was not discharged was the failure to erect a handrail. Such was not required by any code. However, of course, that does not establish a right not to erect one.
57 The appellant submitted that having regard to the respondent's knowledge that there had formerly been a handrail in position; that the appellant suffered in the way to which I have referred; and that it was foreseeable that a person may fall or trip on steps, even if they were constructed conformably with the applicable code, there was an obligation to erect a handrail, which could have been done at little expense. The appellant also, of course, pointed to the diagram at Black AB p 72 as showing that it was the expectation of the draftsman that a handrail would be put in place.
58 On the other hand, the respondent submitted that steps, particularly a short flight of only four, whilst obviously posing a potential danger if one either trips or oversteps, or, one might add, walks off the edge, does not demand, as a matter of reasonable care, that a handrail be put in place. The respondent submitted that the steps were obvious, and that it was equally obvious that if one overstepped, as the appellant did, there was the likelihood that injury would be sustained.
59 The respondent, of course, also relied on the fact that the appellant had been using the steps for some eight weeks prior to the accident without any misadventure and was acutely aware of the need to take care on steps not only by reason of her perception of these steps, but also because on a previous occasion and elsewhere she had tripped on steps.
60 The other question to which regard must be had, in my opinion, is the extent to which the appellant was required to go to make these four essentially unremarkable steps "safe". In this case there was focus upon the need for one handrail in circumstances, where, in my opinion, the appellant had been very careless by not taking the simple course of putting her left foot on the bottom step. However, these steps were to be used both during the day and at night and in fine weather and wet. Why, one may ask rhetorically, was it not necessary to make them safe to have a handrail on each side; reflective tape at the edge of the treads to indicate to a person looking down with greater precision their position; a surface, which would prevent a person slipping in wet weather; and lighting to give a more full view of the steps at night? The idea that one handrail was needed at small expense does not in any way answer the extent to which the landlord was required to go in seeking to prevent injury from any cause, particularly careless conduct on the part of the appellant which point was emphasised by Gleeson CJ.
61 The question to be answered is whether, in all the circumstances, the appellant has established that the respondent breached its duty by failing to install the handrail. Whilst I appreciate that this is a matter on which minds may differ, I have come to the conclusion that there was no breach of duty. In my opinion, that conclusion should be reached for the following reasons:-
(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.