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.