Determination
12 The fourth defendant seeks indemnity or contribution from the third defendant pursuant to the provisions of the Law Reform (Miscellaneous Provisions) Act 1946 which provides "where damage is suffered by any person as a result of a tort (whether a crime or not) -
"… (c) any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued had been, liable in respect of the same damage, whether as a joint tortfeasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be identified in respect of the liability in respect of which the contribution is sought."
13 The third defendant conceded that "to the extent that it can be shown that someone had a liability to the plaintiff in respect of the accident, the settlement which is recorded in the first of the two sets of orders that your Honour made today is an appropriate settlement." The first of the two sets of orders was the judgment in favour of the plaintiff against the fourth defendant.
14 The initial question for determination was whether a liability of the third defendant to the plaintiff for the damage conceded by the fourth defendant could be established. If this was established there was a further question as to the apportionment of responsibility between the third and fourth defendants.
15 The third defendant submitted that it did not owe a duty of care to the plaintiff. Alternatively, if a duty was owed, there was no breach of that duty as the evidence did not establish the railing was in a defective condition at the time of the inspection or that, if it was, there was any sign which ought to have made the third defendant aware of the defect.
16 It was common ground that the High Court in Jones v Bartlett (2000) 205 CLR 166 established a landlord may be liable to a tenant in respect of defects in rented property provided the landlord was aware of, or ought to have been aware of, the defect at the time the lease was entered into - see also Sakoua v Williams (2005) 64 NSWLR 588 at [3] and [8].
17 The fourth defendant submitted that, as a result of the agreement between the first and third defendants, the third defendant was in the same position as the first and second defendants in terms of the duty owed to the plaintiff. The third defendant submitted the third defendant was not the landlord. It was the agent of the landlord. As such it owed duties to the landlord but those duties did not extend to the plaintiff.
18 In State of NSW v Watton (1998) NSW Conv R 55-885 the Court of Appeal held that there was an obligation to inspect residential premises before the commencement of a tenancy which obligation arose under statute implied from the requirement to complete and provide the tenant with a condition report at the start of the tenancy. Pursuant to the Residential Tenancy (Residential Premises) Regulations there was a duty to carry out the inspection with due care. Fitzgerald AJA who was a member of the court said:
"The report relating to the condition of residential premises must be completed by or on behalf of the landlord and given to the tenant at or before the time the residential tenancy agreement is executed by the landlord. These statutory regulatory provisions necessarily import a requirement that residential premises be inspected with reasonable care prior to letting to a new tenant. Breach of that obligation is evidence of negligence."
19 In my opinion the third defendant undertook the obligation to inspect and complete the condition report and by so doing became subject to a duty of care to the plaintiff to warn the plaintiff and/or the landlord of any dangerous defects in the premises of which it was, or ought to have been aware.
20 Such a duty was acknowledged by Miss Andreadis when she observed that the condition of the railing was obviously a safety issue and that if the railing was defective "we wouldn't rent the property" until it was fixed.
21 I do not accept that it has been proven that the gap at the join of the railings was present at the commencement of the tenancy. There is no direct evidence that anyone observed a gap at that time, notwithstanding that the premises were inspected by the plaintiff, her husband and Mr Liu and Miss Andreadis for defects and damage. Mr Buckland was unable to say that the gap would have been present at that time.
22 I do not accept that the evidence of splitting in the timber was, by itself, such as to put a lay person on notice that the railing was dangerously defective nor do I accept that the condition of the bracket attaching the railing to the wall of the unit was such as to put the third defendant on notice that it was defective.
23 Nevertheless I find the railing, on the balance of probabilities, was in a dangerously defective condition at the time of the commencement of the tenancy for the following reasons: