Talbot-Price v Jacobs

CATCHWORDS: COURTS AND JUDICIAL SYSTEM - judgments - alteration of judgments - additional judgment - NEGLIGENCE - duty of care - scope of duty - landlord and tenant - duty to keep premises in a reasonable state of repair - effect of Residential - Tenancies (Residential Premises) Regulation 1995 - clause 12.2 - NEGLIGENCE - breach of duty - landlord and tenant - duty to keep premises in a reasonable state of repair - reasonableness of landlord's conduct - relevant - factors - where landlord directed tenant not to use certain parts of the premises - REAL PROPERTY - leases - residential leases - whether oral agreement void - effect of Residential - Tenancies Act 1987

Residential Tenancies Act 1987 LEGISLATION CITED: Residential Tenancies (Residential Premises) Regulation 1995 Residential Tenancies Act 1987 (WA)

Abela v Giew (1965) 65 SR (NSW) 485 Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479 Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 Koehler v Cerebos (Australia) Ltd [2005] HCA 15; 222 CLR 44 CASES CITED: New South Wales Department of Housing v Hume [2007] NSWCA 69; (2007) Aust Torts Rep 81-879 Ridis v Strata Plan 10308 [2005] NSWCA 246; (2005) 63 NSWLR 449 Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 81 ALJR 1773 Sibley v Kais (1967) 118 CLR 424 Todorovic v Moussa [2001] NSWCA 419; (2001) 53 NSWLR 463 Tucker v McCann [1948] VLR 222

PARTIES: Michael Talbot-Price (Appellant) Patricia Jacobs (Respondent)

COUNSEL: D W Elliott (Appellant) N J Polin (Respondent)

SOLICITORS: S P Lawyers (Appellant) Gadens Lawyers (Respondent)

LOWER COURT DATE OF DECISION: 31 May 2007; 6 June 2007

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40647/07 DC 111/06

IPP JA McCOLL JA BASTEN JA

The parties' versions and the issues on appeal 2 This appeal concerns a claim for damages for personal injury made by the appellant against the respondent in the District Court. The precise causes of action on which the appellant relies are not entirely clear but they include, at least, a breach by the respondent of the common law duty of care that she owed him as the lessor of residential premises she had leased to him.

3 Black DCJ dismissed the appellant's claim. His Honour found that the appellant had failed to establish liability on the respondent's part but proceeded, nevertheless, to assess the appellant's damages.

4 The appellant appeals both against the order dismissing his claim and the assessment of damages.

5 The appellant's case was based on the assertion (supported by his evidence and that of Ms Burgess, a person who at the material time was his girlfriend) that in May 2002 he leased a house from the respondent. The house consisted of a ground floor, a "middle" floor, and a loft. An old ladder (affixed at the top to an upper beam or joist) afforded access to and egress from the loft. The appellant alleged that on 31 July 2002 the ladder gave way or slipped while he was descending from the loft and he fell, thereby sustaining serious injuries. It was common ground that at all relevant times, to the knowledge of both the appellant and the respondent, the ladder was old and unsafe.

6 The respondent's defence was based largely on two propositions. Firstly, she denied that the loft (and the ladder) formed part of the leased premises. She testified that she had expressly excluded the loft from the premises leased. She also asserted that she had not provided the ladder to the appellant. Secondly, she contended that she had discharged whatever duty of care she owed the appellant by warning him, on two occasions, that he was not to occupy or use the loft and by warning him on one occasion that the ladder, which he knew was dangerous, should not be there. 7 Essentially, Black DCJ accepted the evidence of the respondent and rejected that of the appellant and Ms Burgess on the crucial issues. Hence, his decision to dismiss the appellant's claim.

8 The grounds of appeal as to liability are largely directed to asserting errors in the credibility and factual findings his Honour made.

The additional judgment 9 Black DCJ delivered an extempore judgment on 31 May 2007. In that judgment his Honour made no express finding as to whether the appellant slipped on the ladder as he alleged. Nevertheless, his Honour appears to assume that the fall occurred as alleged by the appellant and the tenor of the judgment as a whole is to this effect. 10 On 6 June 2007, however, the judge delivered an addendum to his extempore judgment of 31 May 2007 at a time when counsel for the appellant, but not the respondent, was present. In that addendum he said:

"I do not accept or find that the ladder did slip causing [the appellant's] fall." 11 In Todorovic v Moussa [2001] NSWCA 419; (2001) 53 NSWLR 463 Beazley JA (with whom Powell JA and Sperling J agreed) said (at [46]):

"In a civil action, I would consider that the appropriate test in determining whether an alteration to a judgment is permissible is whether the change is one of substance in fact …" 12 In my view, the additional judgment delivered by Black DCJ on 6 June 2007 involved a change to the substance of his earlier extempore reasons. For that reason, it was not permissible for his Honour to deliver that additional judgment which must be ignored.

13 On the basis that the appeal turns largely on whether Black DCJ erred in accepting the evidence of the respondent and rejecting that of the appellant and Ms Burgess, it is straightforward. But the lack of precision in regard to the appellant's causes of action produces some complexity. Before going to the cause of action question, it is necessary to set out some background circumstances. 14 The house the appellant occupied under the lease is at 1050 Terania Creek Road, The Channon. The house is part of a co-operative venture. The Rainbow Falls Co-Operative (the "Co-op") owns the land (the "Terania land") on which the house is built. In 1984 the respondent purchased shares in the Co-Op, as a result of which she was entitled to occupy a portion of the Terania land. In the late 1980's she built a large, rambling, wooden house on that land. She lived there for approximately 18 years.

15 In August 1999 the respondent moved to Suffolk Park, Byron Bay. Thereafter, her son and daughter-in-law occupied her Terania house. They were followed as tenants by a woman named Erin who moved in together with her young children. Erin left in February 2002. 16 Before Erin moved in, the loft had been used for various purposes including that of a bedroom and the ladder had been used as a means of gaining access to the loft. Erin, however, removed the ladder from the loft and laid it horizontally against a table in the middle storey of the house. Erin had small children and she did not want them climbing into the loft. 17 On 24 April 2002, the appellant and Ms Burgess inspected the house. They were accompanied by Mr McKnight, a neighbour and member of the Co-op. Both the appellant and Ms Burgess testified that on that day the ladder was in place and the appellant climbed up the ladder to inspect the loft and descended down the ladder. Mr McKnight was not called as a witness. The judge did not accept that the ladder was there on that date as the appellant had testified. 18 The respondent testified that after Erin left the house, she (the respondent) removed the ladder and put it on a rubbish heap "outside". She said that she intended to provide "sturdier access" to the loft. She had in mind a "proper staircase" rather than a ladder. The next time she saw the ladder was on 19 May 2002 when she went back to the house. On that date the ladder was back in position in the house and was again affixed by nails to the upper beam or joist, thereby affording access to the loft. What was then said between the appellant and the respondent is a matter of dispute. 19 The appellant testified that, on 24 April 2002, at Suffolk Park, after he had earlier that day inspected the Terania house, he orally agreed with the respondent that he would be entitled to occupy the entire house, including the loft. On the other hand, the respondent testified that at Suffolk Park they agreed that the loft would be excluded from the leased premises. 20 On 8 May 2002 the appellant took possession of the house together with Ms Burgess (who left after two or three days). 21 On 31 July 2002 the fall occurred. The appellant's causes of action and s 25 of the Act 22 Paragraph 2 of the amended statement of claim alleged: "Such lease contained by implication the usual terms of the Residential Tenancies Act , 1987, such that the defendant was obliged to maintain the premises in reasonably safe and suitable condition for residential use having regard to rent paid, likely life of premises and age in accordance with clause 12 of the standard residential tenancy agreement, and/or at [l]aw." 23 Paragraph 3 of the amended statement of claim alleged that the premises were "in breach of clause 12" relevantly, because "access to the bedroom was via a steep, poorly affixed, roughly made, ill-lit, slippery and generally unsafe ladder, which ladder did not comply with BCA requirements and/or ordinary standards of sound construction practice". 24 The amended statement of claim alleged that the appellant suffered personal injury when he descended from the ladder and asserted that his injury and damage "was caused by the defendant's breach of her obligation under the agreement particularised above and/or negligence". The "agreement particularised above" was pleaded as an "oral agreement" which commenced in about May 2002 permitting the appellant to occupy the house "at a rental of $100.00 per week plus a further $15.00 per week payable to the co-operative". 25 Paragraph 7 of the amended statement of claim repeated, "by reason of the negligence of the defendant and/or in breach of the agreement the plaintiff suffered injury, loss and damage". 26 It is apparent therefore that the appellant pleaded his claim both in contract and in common law negligence. The claim in contract, however, has some significant obscurities. 27 According to para 2 of the amended statement of claim, the claim in contract is based on the breach of a term requiring the respondent "to maintain the premises in reasonably safe and suitable condition for residential use having regard to rent paid, likely life of premises and age in accordance with clause 12 of the standard residential tenancy agreement, and/or at law." Paragraph 2 alleges that such a term is contained in the lease "by implication", the term being said to be one of "the usual terms of the Residential Tenancies Act 1987". 28 The pleading does not make clear whether the term is to be implied to give effect to the presumed intention of the parties, or as a term implied by law, or as a term to be implied by legislation. There is nothing to support the implication of such a term on either of the first two bases mentioned. Whether an argument is available on appeal that such a term is to be implied by legislation (and in particular by cl 12 of the statutory standard residential tenancy agreement) depends on the relevant statutory provisions and the way in which the case was run and argued, particularly at trial.

The relevant statutory provisions 29 Section 3(1) of the Residential Tenancies Act 1987 (the "Act") defines residential premises in the following terms: "Residential premises: (a) means any premises or part of premises (including any land occupied with the premises) used or intended to be used as a place of residence, and (b) …" 30 Section 3(1) defines a "residential tenancy agreement" in the following terms: "Residential tenancy agreement means any agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence: (a) whether or not the right is a right of exclusive occupation, (b) whether the agreement is expressed or implied, and (c) whether the agreement is oral or in writing, or partly oral and partly in writing, and includes such an agreement granting the right to occupy residential premises together with the letting of goods." 31 It follows, therefore, that an oral agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence, is a residential tenancy agreement.

32 Section 8(1) of the Act provides that "The regulations may prescribe a standard form of residential tenancy agreement". A standard form residential tenancy agreement (where tenancy is for a term of 3 years or less) was contained in sch 1 to the Residential Tenancies (Residential Premises) Regulation 1995 (the "Regulation"). Clause 12.2 of the Regulation provides that the landlord agrees "to keep the premises in reasonable repair, considering the age of, the amount of rent paid for and the prospective life of the premises". 33 Section 8(3)(a) of the Act provides that a prescribed standard form of residential tenancy agreement "shall be deemed to contain all terms included in the agreement by Part 3". 34 Section 25 falls within Part 3 and provides: "(1) It is a term of every residential tenancy agreement that: (a) … (b) The landlord shall provide and maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises." 35 The term set out in s 25(1)(b) is, in substance, the same term as that contained in cl 12.2 of the Regulation. It is to be noted that, irrespective of what a particular residential tenancy agreement may in fact provide, s 25 requires the terms set out in that section to be regarded as contained in every residential tenancy agreement. 36 Section 9 of the Act provides: "(1) If a standard form of residential tenancy agreement is prescribed, a residential tenancy agreement for which a form is prescribed and which is entered into on or after the day the form is prescribed, or any later day prescribed for the purpose, shall be in or to the effect of the form. (2) Except as provided by s 10, a residential tenancy agreement for which a standard form is prescribed is void to the extent to which it is not in or to the effect of the form."

Is the oral agreement between the parties void? 37 The oral residential tenancy agreement entered into between the appellant and the respondent on 24 April 2002 was a residential tenancy agreement as defined. By s 9(1) that oral agreement was required to be "in or to the effect" of the standard form. It was neither in nor to the effect of the standard form. 38 Section 9 (2) provides that a residential tenancy agreement for which a standard form is prescribed is void to the extent to which it is not in or to the effect of the form. 39 During the appeal, in the course of the reply by Mr Elliott, counsel for the appellant (who was also counsel at the trial), the Court raised the question whether the effect of s 9(2) was to render the oral residential tenancy agreement between the parties void. Mr Elliott accepted that the effect of s 9(2) was indeed to render the agreement void and a brief discussion followed as to the nature of the appellant's occupation. Mr Elliott's concession was made without time for reflection and I do not think he should be bound by it or that significant weight should be accorded to it. 40 The issue as to the effect of s 9(2) was not argued before this Court other than in the way that I have described. Section 9(2) had not been raised at any time previously in the proceedings. It is open to doubt whether s 9(2) does mean that every oral residential tenancy agreement is void. It may be that s 9(2) merely renders void any terms of an oral residential agreement to the extent to which those terms are not in or to the effect of the terms of the standard form of residential tenancy agreement. It may be that, because an oral agreement that falls within the definition of "residential tenancy agreement" in s 3(1) is a residential tenancy agreement for the purposes of the Act, s 9(2) does not preclude the application of s 25(1) to it. On the other hand, it is reasonably arguable that s 9(2) renders an oral residential tenancy agreement void because such an agreement is not and cannot be "in" the prescribed form. 41 As the issue was not properly argued, it is undesirable that this Court should decide it. For reasons that I go on to set out, it is unnecessary to do so.

The appellant's pleading and the statutory framework 42 I return now to the amended statement of claim and, in particular para 2. I reiterate that the appellant pleaded that the oral lease agreement contained "by implication" the usual terms of the Act, "such that the [respondent] was obliged to maintain the premises in reasonably safe and suitable condition for residential use having regard to rent paid, likely life of premises and age in accordance with cl 12 of the standard residential tenancy agreement, and/or at [l]aw". 43 Paragraph 2 (and the entire amended statement of claim) makes no mention of s 25. The appellant does not in his pleadings allege and rely on the term that by s 25 is to be regarded as contained in a residential tenancy agreement. He relies merely on an implication that cl 12 (as a usual term of a residential tenancy agreement) is part of the oral agreement. 44 Under the statutory framework, however, no such implication arises. The fact that, by s 9(1), the oral agreement was required to be "in or to the effect" of the standard form does not mean that it is to be implied that the terms of the standard form are to be regarded as contained in the agreement. Section 9(2), which provides that a residential tenancy agreement (for which a standard form is prescribed) is void to the extent to which it is not in or to the effect of the form, makes this clear. Avoidance to this extent (which - as I have mentioned - may be of the entire agreement) is the consequence of terms that are not in or to the effect of the form; no implication arises in respect of missing or conflicting terms (the latter being void).

The way in which the case was argued at trial 45 The appellant made no reference to s 25 at any time during the trial. Mr Elliott submitted to Black DCJ that the rental the respondent was receiving was in excess of "any normal commercial return on residential premises". He said (Black 258) that that was relevant because: "[P]ursuant to cl 12 of the Residential Tenancies Act the cl 12 of the ordinary terms of residential tenancy [applies] and by the duty discussed at para (88) of Hume and in Jones v Bartlett [it] is relevant to know what the duty was in the circumstances and the circumstances of this matter [were that] a handsome rental was being paid on these premises." 46 In Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 the successful appellant in the High Court did not challenge the finding by the trial judge that there had been no breach of the Western Australian statutory provision equivalent to s 25 of the Act. Apart from dealing with claims for breaches of statutory duty not presently relevant, the judgment of the High Court concerned whether the landlords were in breach of any common law duty of care they owed to the son of the tenants of the leased premises. New South Wales Department of Housing v Hume [2007] NSWCA 69; (2007) Aust Torts Reports 81-879 concerned the common law duty of care owed by a landlord to a visitor to the leased premises. 47 Mr Elliott's reference to these cases in the context of his remarks that I have quoted indicates that he was putting his case on the basis of a breach of a common law duty of care. 48 At trial, Mr Elliott submitted further (Black 259): "[t]he duty that is owed is that to take reasonable care in the circumstances, it's no higher. It is the duty which is expressed by cl 12 of the standard terms of residential tenancy to provide and maintain premises which are reasonably safe in the circumstances having regard to rent paid and the life of the premises". 49 The reference to taking "reasonable care in the circumstances" indicates reliance on a common law duty of care, not on the term imposed by s 25(1)(b). The reference to the common law duty of care duty being the duty "expressed by cl 12 of the standard terms of residential tenancy" seems to be an attempt to define the scope of the common law duty. Whatever it means, it is not a reliance on s 25. 50 Later, during the course of his argument at trial, Mr Elliott submitted that the premises did not "meet the basic statutory requirements for occupancy" but did not suggest that he was relying on a breach of statutory duty and did not explain how the statutory duty was connected to the appellant's cause of action, if at all. (Black 262). Mr Elliott went on to argue (at Black 263): "Where is the evidence that these premises comply with any standard. That's important your Honour because in the leading authority in the area, Jones v Bartlett , which is approved in Hume, we know that the premises were approved, we know that the door [complied] with relevant standards at the time. There is no such evidence in this case."

The reference to Jones v Bartlett and Hume supports the notion that the appellant was relying solely on a breach of a common law duty. Mr Elliott reinforced this notion when he said (at Black 269): "Now your Honour we accept that the statement of the duty of care is that as set out in Hume and is discussed by Gaudron J in Jones v Bartlett ."

The argument on appeal 51 Before this Court, Mr Elliott, when asked whether the appellant was asserting a breach of contract or claiming in tort, said: "We say the standard of care to be measured by the Residential Tenancies Act caused s 25 [to be] translated into s 12 of the Regulation, that is contemporaneous with the common law [duty] to provide reasonably safe premises." 52 I understood Mr Elliott to be submitting that the standard of care on which he was relying (both in contract and in tort) was to be measured by cl 12 of the standard form of residential tenancy agreement. Therefore, it did not matter whether the duty was in contract or tort; it was the same in both cases. He repeated this submission in reply (T41) and, later (at T46), asserted that cl 12 "is a societal measure of the standard of care that is expected." 53 In reply, before this Court, Mr Elliott said that the way he put the case at trial was that: "[T]here is a common law duty and that duty finds expression, to take reasonable care in the circumstances and one of the circumstances is the obligation imposed by cl 12 of the standard residential agreement."

Can the appellant rely on the s 25(1) (b) term and on cl 12 of the standard form? 54 The trial was run without s 25 being raised in any way. Even on appeal, the reliance sought to be placed on the section was tentative and lacked coherence with the argument as a whole. The section is not mentioned in the notice of appeal. In my view, the appellant should be precluded from placing any reliance on it on appeal. 55 As I have explained, nothing in this relevant statutory framework has the effect that cl 12 of the standard form of residential tenancy agreement is to be implied in the oral agreement between the parties. 56 Clause 12 does not define the scope of the duty of care owed by the respondent. It has long been the law that breach of a statute or regulation may be evidence of negligence but is not irrefutable proof of negligence. Every case has to be decided according to its own circumstances. The breach of a statute or regulation is not definitive of a duty of care, or the performance of that duty: Sibley v Kais (1967) 118 CLR 424 at 427 per the Court; Ridis v Strata Plan 10308 [2005] NSWCA 246; (2005) 63 NSWLR 449 at [65] per Tobias JA and [90], [133] and [154] per McColl JA; Abela v Giew (1965) 65 SR (NSW) 485 at 491 per Sugerman, Taylor and Moffitt JJ; Tucker v McCann [1948] VLR 222 at 227 per Herring CJ (with whom Lowe J agreed) and at 237 per Gavan Duffy J. 57 For the reasons set out later in this judgment, the appellant did not establish that the loft and the ladder were part of the premises leased. Therefore, cl 12 of the standard form of residential tenancy agreement did not apply to the agreement between the parties governing the premises that were in fact leased. Nevertheless, in accordance with the principles expressed in the previous paragraph, the appellant was entitled to rely on cl 12 as being evidence tending to establish the scope of any duty of care that might be owed by the respondent to the appellant and to the steps that the respondent might reasonably be required to take in discharge of any such duty. But cl 12 is no more relevant than that.

The credibility findings 58 Black DCJ said (Red 15): "[W]herever there is conflict between the defendant and the plaintiff and Miss Burgess I prefer the defendant's evidence." 59 On my understanding of his Honour's reasons, he was not prepared to accept the evidence of the appellant and Ms Burgess even when there was no direct evidence contradicting their testimony. This is particularly the case in regard to his finding that, on 24 April 2002, when the appellant and Ms Burgess inspected the property with Mr McKnight, the ladder was not inside the house providing access to the loft as the appellant and Ms Burgess alleged. 60 The latter issue gives rise to an independent ground of appeal as the appellant contends that his Honour wrongly failed to draw an inference adverse to the respondent by reason of her failure to call Mr McKnight. 61 The respondent was not able to testify directly as to this issue as she was not present at the time. Nevertheless, she did state in evidence, categorically, without objection and without being further questioned on the point, that the ladder was not in the house when the premises were let to the appellant (Black 210). This aspect of the way in which the trial was conducted no doubt reinforced his Honour in the conclusion to which he came, but it is plain from his finding in this respect that he rejected the testimony of the appellant and Miss Burgess generally. It is this finding that I discuss under this heading. 62 Mr Elliott criticised the credibility findings the judge made and submitted that there was no sound basis for them. 63 Black DCJ gave detailed reasons for preferring the respondent's evidence. He said that she gave her evidence in a straightforward and forthright manner, she made appropriate concessions and her diary corroborated her testimony. This reasoning is unexceptionable and I did not understand the appellant to challenge it. 64 In rejecting the evidence of Miss Burgess, his Honour said: "[S]he was prepared to say whatever she thought might assist the plaintiff irrespective of whether or not it was so." 65 Here, too, he gave detailed reasons for his view of the witness. The more important reasons were that drug use had affected her memory, her evidence was inconsistent in many respects with that of the appellant and, significantly, he viewed her demeanour when she gave evidence, particularly when she was cross-examined, as "unusual". The judge thought that the witness might have ingested some kind of mind-affecting substance before testifying. It was not suggested that his Honour erred in this view. 66 Mr Elliott did not, in substance, challenge the unfavourable credit findings against Miss Burgess, and in my view this is quite understandable. These findings, too, were unexceptionable. 67 Black DCJ gave detailed reasons for rejecting the appellant's evidence. Mr Elliott criticised most of these. 68 The judge said that drug use had obviously affected the appellant's memory and observed, "any examination of his evidence will show inherent inconsistency and conflict". Mr Elliott submitted that his Honour did not give details of the inherent inconsistency and conflict that he had in mind, but I do not think that is correct. 69 His Honour referred to "clear acts of dishonesty" on the part of the appellant in dealing with the respondent's battery charger and generator. These included pawning them without the respondent's knowledge and permission and lying about their whereabouts to the respondent. He was also not forthcoming in his evidence in chief about what he had done with the generator. 70 The appellant admitted in evidence that he had stolen the battery charger and lied to the pawnbroker about its ownership. At first he resisted the accusation that he had stolen the generator but under cross-examination admitted that he had done so and also lied to the pawnbroker about that. 71 The appellant's conduct in regard to the generator and the charger must be seen against the background that, shortly before the appellant took occupation, the respondent purchased the generator for $1,500 and the battery charger for $360. 72 As his Honour observed, the appellant gave conflicting evidence as to the heroin dose he had been taking and as to the periods during which he had taken heroin. He also admitted in cross-examination that he had not told the truth to the Court about a methadone program which he had undertaken. It was for his Honour to determine the weight to be given to this conduct. 73 The appellant admitted that he had dishonestly removed the generator and the battery charger from the leased premises and thereby caused the lighting system in the premises not to work. Nevertheless, as part of his case, he alleged that the respondent had failed to provide adequate lighting in the premises. The judge regarded this conduct adversely, as he was entitled to do. 74 The appellant admitted in cross-examination that he had lied to the respondent after he fell from the ladder by telling her that there was then no-one living in the house and that he had taken the generator and battery charger and given them to someone else (Black 86). 75 The appellant testified in chief that, when he saw the property on 24 April 2002, the house had no front door. He said that two weeks after moving in he had a discussion with the respondent about having a front door installed. The respondent, however, said that she arranged for a front door to be installed and this occurred on 19 April 2002. She produced documentary evidence from tradesmen who had installed the door that supported her evidence. This conflict as to the existence of the door two weeks after the appellant moved into the premises is not as insignificant as on first glance it might seem. 76 There was some suggestion by or on behalf of the appellant that some other unidentified person had brought the ladder into the house and had nailed it into position underneath the loft. The absence of a front door for two weeks after he moved in tended to support this theory. Of course, the theory becomes more difficult to establish once it is accepted that the front door was installed before the appellant took occupation. 77 His Honour referred to a "conviction" on the part of the appellant for breaking and entering "in the late 90s". He erred in this respect as the appellant was not convicted of breaking and entering, but was given a three-year good behaviour bond. I do not regard this error as significant. 78 In my view the evidence on which his Honour relied supports the credibility findings he made. No material error in this regard has been shown.

The failure to call Mr McKnight 79 Mr McKnight showed the appellant the house on 24 April 2002, prior to him deciding to lease it. According to the appellant, he went into the house with Mr McKnight. The appellant said that the ladder was inside the house in position underneath the loft and he and Miss Burgess used it to climb into and down from the loft. The inference is that Mr McKnight must have seen the ladder in position. The appellant submitted that the respondent should have called Mr McKnight to refute this evidence. 80 As I have mentioned, in April 2002 the respondent took the ladder out of the house and "put it on the rubbish heap outside". She had no personal knowledge as to whether the ladder was there on 24 April. She did not visit the premises between 9 April and 19 May 2002. The next time she saw the ladder was on 19 May 2002 when she went back to the premises. The ladder was then back in place. 81 Black DCJ said: "It seems to me that it is inappropriate to use [Mr McKnight's] absence as a witness against either party. He could either have confirmed or denied the presence of the ladder and there was some other aspects upon which he could have given relevant evidence. I do not hold against either party their failure to call him. I think the situation could only be described as neutral." 82 Mr Elliott submitted that the judge erred in failing to draw an adverse inference against the respondent for not calling Mr McKnight to testify. Mr Elliott submitted that Mr McKnight's testimony was crucial to the determination of whether the ladder was present on 24 April 2002 when the appellant and Miss Burgess visited the premises. 83 I accept that the finding that the ladder was not there on 24 April was significant. Were the ladder to have been there on that date, the inference could readily be drawn that it had been installed by or at the instance of the respondent. This, in turn, might have led to the rejection of her evidence that she did not put the ladder in the house and that she told the appellant that the loft was excluded from the premises let. 84 The failure to cross-examine the respondent about her evidence that the ladder was not in place when the property was let to the appellant detracts from the appellant's criticism of the finding that the ladder was not there on 24 April 2002 and, indeed, from the submission that the judge should have drawn an adverse inference against the respondent by reason of her failure to call Mr McKnight. 85 Mr Elliott submitted that it was inappropriate to expect the appellant to have called Mr McKnight, as he (the appellant) was not on good terms with him. Mr Elliott drew attention to the fact that, in cross-examination, the appellant had accepted that he was responsible for paying the levy of $15 per week to the Co-op and, from May 2002 until the date of the trial (29 May 2007), the appellant had not paid that levy. The cross-examiner asked: "So I take it that you've left poor old Mr McKnight who's got nothing to do with this, to pay that levy for you?"

The appellant replied in the affirmative. 86 I accept that this argument is not without force. Nevertheless, I am not persuaded by it. At trial, it was merely submitted to the judge that he should find that Mr McKnight was "in the defendant's camp" and it was for that reason that the respondent should have called him. No specific attention was drawn to the debts that Mr McKnight seems to have incurred by reason of the appellant's failure to pay the levy to the Co-op. No specific explanation was given to the judge as to why he should find that Mr McKnight was in the respondent's camp. 87 On my reading of the transcript (Black 260) the appellant's adverse inference submission seems to have been made almost as a side wind, as a "by-the-way" observation. This is understandable when it is appreciated that it was made in response to an even more offhand submission by counsel for the respondent at trial who said, merely, "[i]nterestingly, the plaintiff of course chooses not to call Mr McKnight". My impression after reading the transcript is that Mr Elliott was responding briefly to the short point made by counsel for the respondent and was not seeking to present a strong argument based on the failure of the respondent to call Mr McKnight. 88 In all the circumstances, particularly having regard to the failure to cross-examine the respondent, and the particularly strong adverse impression Black DCJ had of the credibility of the appellant and Miss Burgess, I am not persuaded that the judge erred in this regard.

The extent of the premises that were leased 89 The oral agreement of lease was arrived at on 24 April 2002 at a meeting between the appellant and the respondent at the respondent's home at Suffolk Park. The respondent testified that at this meeting she told the appellant: "[t]here wasn't any access to the loft at the time and it wasn't to be used" (Black 192). According to the respondent, the appellant did not object to this exclusion of the loft. 90 The respondent also testified that on 19 May 2002, when she saw the ladder in the premises leading up to the loft, she was shocked. According to her, the appellant said to her, "[t]hat ladder is not safe" and she replied, "[n]o, it shouldn't be there". She also said "I told you that there was no access to the loft" (Black 212). 91 Black DCJ accepted the respondent's account of the conversation on 24 April 2002 at Suffolk Park. He also accepted her account of the 19 May 2002 conversation. His Honour found that the appellant knew perfectly well that he was not meant to go up to the loft and to go there would be "against the express prohibition" of the respondent and "contrary to the terms upon which he was granted a lease". His Honour concluded that the loft "was not included in the letting and indeed further was expressly excluded". 92 I have expressed the view that Black DCJ made no error in his credibility findings. Accordingly, his findings as to what was said in the conversations at Suffolk Park and on 19 May 2002 and, therefore, as to the extent of the premises leased (and whether the loft was excluded) must stand. 93 During the course of argument, reference was made to s 25(2) of the Act which provides: "(2) in this section: residential premises includes everything provided with the premises (whether under the residential tenancy agreement or not) for use by the tenant." 94 There was nothing to establish that the rubbish heap where the appellant threw the ladder was part of the leased premises. 95 It was never put to the respondent that she had provided the ladder to the appellant, or caused it to be installed under the loft. There was no evidence that anyone else, apart from the appellant, had any incentive to do so. There is a compelling inference (on the overall findings made by the judge) that the appellant himself brought the ladder into the house and installed it under the loft. He was a carpenter by trade and at the time had a cordless drill in his possession. No stranger, without invitation, is likely to have walked into the house (in which he was not living) and nailed a ladder to the joist at the loft. 96 Irrespective of who it was who brought the ladder into the house, on the judge's findings it was not the respondent. Thus, it cannot be said that the ladder was "provided with the premises (whether under the residential tenancy agreement or not) for use by the tenant" within the meaning of s 25(2). 97 Accordingly, the questions of duty and breach have to be approached on the basis that neither the loft nor the ladder formed part of the leased premises.

Conclusion 98 In the light of my conclusion that neither the loft nor the ladder formed part of the leased premises I would hold that the respondent owed no duty of care to the appellant in relation to the loft and ladder. 99 If the respondent did owe a duty of care, that duty was not affected by cl 12 of the standard tenancy agreement (amongst other things, because neither the loft nor the ladder was part of the leased premises). 100 If the respondent did owe a duty of care, it was a generalised duty that she discharged by telling the appellant not to use the loft and that the ladder "shouldn't be there". He knew very well that the ladder was dangerous. Before the accident happened, he told the respondent that himself. 101 As regards damages, the appellant made no detailed submissions about those so I do not propose to deal with them. 102 In my view the appeal should be dismissed with costs. 103 McCOLL JA: I agree with Basten JA. 104 BASTEN JA: I agree with Ipp JA that the appeal should be dismissed with costs. Subject to what follows, I also agree with his Honour's reasons.

Mandatory terms of lease 105 The Residential Tenancies Act 1987 (NSW) prescribes both the content and the form of residential tenancy agreements in this State. Part 2 of the Act provides that regulations may prescribe a standard form of residential tenancy agreement: s 8. If such a standard form is prescribed, it must be used, and an agreement which is "not in or to the effect of" the form is described as void: s 9(1) and (2). The terms contained in the form "shall not be varied" and, to the extent that they are varied, "shall be deemed not to have been varied": s 9(3). Although the parties may insert additional terms, they must be terms which are not inconsistent with those set out in the prescribed form: s 10(1)(b). An additional term is not declared by the Act to be void, but becomes void only upon order of the Consumer, Trader and Tenancy Tribunal: s 10(2). 106 Part 3 of the Act prescribes terms. Section 25, set out at [34] above, is similar to ss 17-30, each of which provides that the matter set out "is a term of" a residential tenancy agreement. To the extent that the prescribed form is inconsistent with any aspect of Part 3, it would no doubt, to that extent, be invalid. However the form prescribed by the Residential Tenancies (Residential Premises) Regulations 1995 (NSW) follows closely the language of Part 3. A term which is inconsistent with any term included in the agreement by Part 3 is void: s 11. Contracting out of the provisions of the Act is prohibited: s 120. 107 It is not disputed that the relevant standard form of residential tenancy agreement (for tenancies not exceeding three years) was not executed. The Act appears to require that every residential tenancy agreement be in writing, because the landlord is obliged to give the tenant a copy of the agreement: ss 9(1) and 17(1). Failure to do so constitutes an offence: s 17(2) and s 125(1). Where there is a residential tenancy agreement which is not in writing, it is doubtful whether the agreement is deemed to be in terms of the standard form, although that is a possible construction of s 9. However, it is not in doubt that the oral agreement will contain the terms prescribed by Part 3. The terms of s 25(1)(b), requiring the landlord to provide and maintain the premises "in a reasonable state of repair", do not impose a different obligation from cl 12.2 of the standard form requiring the landlord "to keep the premises in reasonable repair". At least, it was not contended that the obligation in s 25(1)(b) to "provide" the premises in a reasonable state of repair was not encompassed by cl 12.2, nor was it suggested that there was any material difference between the language of "a reasonable state of repair" in the section and "reasonable repair" in the standard form. Although the case was run by reference to the obligation under cl 12.2, rather than s 25(1)(b), nothing turns on that for the purposes of the present appeal. The contractual obligation of the landlord was to provide premises in a reasonable state of repair to the appellant.

Breach of obligation 108 The appellant's argument was that the tortious duty, for breach of which he sued, was not materially different from the contractual duty: cf Koehler v Cerebos (Australia) Ltd [2005] HCA 15; 222 CLR 44 at [39]-[40] (McHugh, Gummow, Hayne and Heydon JJ). The question is whether the respondent breached that duty. 109 Accepting that the ladder, crudely nailed in position, did not provide a safe form of access to the loft, the first question was whether the loft and its means of access formed part of the leased premises. If they did not, the plaintiff was, in effect, a trespasser on that part of the premises. That did not mean that his cause of action would necessarily fail, but it would undoubtedly have been more difficult for him to succeed if the dangerous ladder had been placed in position by the appellant himself, against the express instruction of the lessor: see generally Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479, 487-488 (Mason, Wilson, Deane and Dawson JJ); and Jones v Bartlett [2000] HCA 56; 205 CLR 166 at [195]-[197] (Gummow and Hayne JJ). On the other hand, the loft might have been treated as an attractive feature of the premises which, even if placed "out of bounds" by the lessor, might have encouraged or enticed an occupant into seeking access by means which were available and capable of use for that purpose. In other words, the use of the ladder, which had not been removed from the curtilage, was foreseeable: cf the discussion of "allurement" in Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 81 ALJR 1773 at [64] (Gummow J). 110 The argument that the loft was not part of the leased premises is unattractive. It invites questions as to how the lessor would have responded if the lessee had used it merely for storage. The fact that it may be risky to seek access to particular parts of premises (such as the roof) does not mean that they were not part of the leased premises. Given the highly informal agreement reached between the parties, it is more likely that, at the highest, the lessor intended there to be a contractual obligation on the lessee not to use the loft. As will be seen below, that was consistent with her comment when she realised that the respondent was using the loft, namely that there was "no access to the loft". 111 Ultimately, the case was run primarily on the basis that the lessor was liable because the ladder was in place prior to the lessee's occupation of the premises. That question turned largely upon credit findings in respect of the appellant and the respondent. For the reasons explained by Ipp JA, the findings can only be set aside if the failure on the part of the respondent to call Mr McKnight could properly give rise to an inference that his evidence would not have assisted her, an inference not accepted by the trial judge. If that inference could be drawn, it would then be necessary to consider whether his Honour's error in failing to do so may have had consequences for the outcome. 112 While I do not disagree with the analysis of Ipp JA with respect to the issues concerning Mr McKnight, in my view they are ultimately of limited relevance. There is no dispute that the ladder was in place, thereby providing access to the loft, and was seen to be in place by the respondent on 19 May 2002, more than two months before the accident. In her evidence the respondent agreed that she had seen the ladder in place on 19 May. When asked whether she knew that he was using the ladder for access to the loft she said: "I presumed that, yes." She also agreed she had heard the appellant say that it was dangerous and had responded (Tcpt, 30/05/07, p 58(5)): "Yes that ladder shouldn't be there and I told you there was no access to the loft." 113 The obligation of a lessor to keep premises in a reasonable state of repair, having regard to the age of the premises and the rent payable for them, provides no absolute requirement of safety. Premises may be constructed according to standards which would not be adequate for new premises, or may deteriorate with age and become unsafe in particular respects. There may be delay in carrying out repairs. The nature of the danger, the size and structure of the premises, the number of tenants and whether they are of full age, together with a variety of other factors, will be important in determining whether or not the action (or inaction) of a lessor with respect to identifying and rectifying the danger is reasonable. In the present case, the premises were occupied by a single adult tenant; the premises were extensive; the risk arose out of use of the loft, which was by no means an essential room for the comfortable enjoyment of the premises; the risk was well-known to the appellant and required no warning. 114 The trial judge dealt with the matter by accepting the respondent's account of the conversation on 24 April, holding that "this particular room was not included in the letting and indeed further was expressly excluded": Judgment, pp 19-20. That conclusion was reinforced, his Honour held, by the respondent's evidence of what was said on 19 May: p 20. Further, his Honour accepted as the determinative principle to be applied in the present case the statement by McColl JA in New South Wales Department of Housing v Hume [2007] NSWCA 69; (2007) Aust Torts Rep 81-879 where, after referring to the views of Gummow and Hayne JJ in Jones v Bartlett, which were held not to have support from other members of the Court, stated at [88]: "On that basis the appellant owed a duty to the respondent to take reasonable care to avoid foreseeable risk of injury, but did not have to make the premises as safe as reasonable care could make them … ." 115 This approach derived from the remarks of Gaudron J at [90] and [92] in Jones. However, as Beazley JA remarked in Hume, in some situations there may be little difference between the apparently differing approaches: at [3]. To succeed in Jones, the plaintiff had to establish that the lessor should have replaced a glass door which was not defective when the building was constructed, but which did not live up to modern standards, with a door which satisfied the current standard. The comments were made in the context of a general law duty, rather than by reference to the terms of the Residential Tenancies Act 1987 (WA), s 42(1), which was relevantly in very similar terms to s 25(1) of the New South Wales Act. Unless it is contended that the statutory term imposes some higher duty, little is to be gained from semantic permutations. As stated by Gleeson CJ at [57]: "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." 116 It is not necessary in the present case to consider whether the judgments in Jones, using different formulations, give rise to a different standard of care as between a lessor and lessee, compared with a lessor and a visitor. On one view, Gummow and Hayne JJ were merely pointing out that the factual circumstances involved in each relationship will differ, if for no other reason than that the lessor has no control over the immediate state of the premises, whereas the lessee does: at [197]. Further, the duty may be affected by contractual terms as between the lessor and the lessee, which will not necessarily affect the relationship between the lessor and the visitor. 117 Rather than applying the passage from Hume referred to by the trial judge, the question was whether, rather than constructing a staircase or otherwise providing safe access to the loft, it was reasonable and sufficient for the lessor, in circumstances noted above, to direct her tenant not to use the loft. In substance, his Honour found that such conduct did not amount to a want of reasonable care, with the result that the appellant failed. No error of fact or law has been demonstrated in that conclusion. Accordingly, the appeal should be dismissed with costs.

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