Hong v Hutton[2018] QDC 124

DISTRICT COURT OF QUEENSLAND

1. [1]
   It was raining heavily on 5 April 2010 when the plaintiff hurried down her front stairs; fell and broke her wrist after losing her footing on stepping stones placed by the defendant landlords about six years earlier when they lived in the family home.

2. [2]
   Although the parties agree on the quantum of damages of $125,000.00 including interest, they dispute whether the defendants breached a residential tenancy agreement to become liable at all.

Background

3. [3]
   The defendants bought the house property at 3 Ponticello Street in Whitfield in November or December 2003. They lived there for about five years until January 2009 and thereafter they used real estate agents to let the house until 2015.

4. [4]
   The house was built pursuant to a building approval granted in 1974. It is a split level house constructed of rendered besser block, and consists of three bedrooms, a kitchen, a bathroom, a lounge and double lock-up garage. The lock-up garage was accessed externally via a duel driveway, and internally via a door from the kitchen.

5. [5]
   The front door of the house led onto a patio and concrete stairs, which descended to a grassed area. Two slate stepping stones embedded into the ground provided for a path with two timber sleepers to the driveway.

6. [6]
   The male defendant installed the stones in about January 2004.

7. [7]
   The plaintiff moved into the premises with her son on 16 January 2010. She occupied the house pursuant to a written residential lease with the defendants for a weekly rental of $380.00 for the period from 16 January 2010 to 11 February 2011. The lease is comprised of the pro-forma schedule, standard terms and conditions, and some special conditions.

8. [8]
   The plaintiff alleges that on 5 April 2010, almost three months into her occupation, it was raining heavily and the stones were both wet and slippery.^[1]  She alleges that as she stepped from the front stairs onto the first stone she slipped and fell, thereby sustaining personal injury.^[2]  She holds the defendant liable for her grief on the grounds that they breached the lease by failing to ensure the premises was in good repair and fit to live in at the commencement and during the term.  She sues for damages for breach of contact.

9. [9]
   The defendants deny all liability for the plaintiff’s injury on the grounds that the pathway did not constitute a risk or hazard, which the defendants were obliged to detect and correct under the lease.

10. [10]
    Otherwise, the parties agree on the quantum of damages, in the sum of $125,000.00 (including interest to judgment).

Issues

11. [11]
    The determinative issues in the proceeding are:

1. What were the circumstances of the plaintiff’s fall?

2. What caused the plaintiff to lose her footing and fall as she did?

3. Did the defendants breach clause 25 of the lease by:

1. (a)
   Failing to ensure the premises were in good repair and fit to live at the commencement of the tenancy?

2. (b)
   Failing to maintain the premises in good repair and in a state fit to live in during the tenancy?

4. Are the defendants liable to pay the plaintiff damages?

What were the circumstances of the plaintiff’s fall?

12. [12]
    Only the plaintiff and her adult son, Troy Marr, were present at the premises at the time of the incident.

13. [13]
    The plaintiff testified that at ‘around 5:30, 6:00 pm’ on 5 April 2010,^[3]she left the house through the front door entrance to get to the car parked on the driveway.^[4]

14. [14]
    The plaintiff described that it was raining ‘pretty heavy. Yeah, pretty heavy’, and she was ‘a bit hurried …. hurrying a little bit, but not a great deal’.^[5]She recalled that ‘it was all sloshy there and I had nice shoes on and I didn’t want to wet them’.^[6]They were flat-soled shoes, with rippling at the heel and toe, but had a flat and smooth centre sole.^[7] 

15. [15]
    She initially descended the front steps on the right side^[8]and described her decent down the stairs and onto the stones in these words:^[9]

“Troy was going to the car.  I was at the top of the stairs.  I had a look if he was there.  Yes.  He was at the car.  So I started down the stairs.  I held onto the railing because they’re bigger steps than I’m used to.  I hold on to the railing down.  And when I got to the bottom, you pause a little bit, I suppose, and stepped on – looked and I didn’t want to step on the sloshy part so I stepped with my left foot on the first one and I was going to step on the right one but I went up in the air, slipped on the stepping stone and I went up in the air and came down with my arm out to the side like that.  Mangled it.”

16. [16]
    She later affirmed that she ‘noticed Troy was at the car when I was at the top of the landing and then went down the stairs, and Troy was in the car by then, I think’.^[10]She was then ‘looking, where I was going’ as she descended the stairs and paused with ‘both feet’ on the bottom step.^[11]She said:^[12]

“And then I stopped at the bottom of the stairs and assessed the situation where you walk in a second, and stepped off with my left foot on to the first stepping stone.”

17. [17]
    Although she stepped with her left foot from the bottom step onto the first stone without difficulty,^[13] she described how she lost her footing as she next moved her right foot from the bottom step toward the second stone.^[14]  She testified that her foot ‘slipped’ from the first stepping stone that was ‘so slippery’:^[15]

“All right.  And ‑ and ‑ and as you stepped off the bottom step with your left foot‑‑‑?‑‑‑It slipped.

Did you put your foot on to the first stepping stone?‑‑‑Yeah, I was on the first stepping stone.

And what happened when ‑ when you put your left foot on to the first stepping stone?‑‑‑I think it was as I was moving my other right foot and I had my foot on the stepping stone, it was so slippery I just went up in the air.

All right.  Now, which way did you fall?‑‑‑Forward.

And what did you do as you fell forwards?‑‑‑I was trying to stop myself and put out my right hand.

And what happened?‑‑‑It took the full brunt of my fall.”

18. [18]
    It is significant the plaintiff’s testimony differed markedly from her pleaded allegation that she slipped when she stepped from the front stairs onto the first stone.^[16]She testified that she’d completed the first phase of her descent by securely reaching the first stone with her left foot,^[17]but that foot slipped during the second phase as she moved toward the second stone.

19. [19]
    She there cried and screamed in pain for, what seemed to her to be, a minute before her son came to her aid.^[18]She could “picture him coming around the other side of the car”,^[19]based on her recall that his car was facing the street.^[20]  During her evidence the plaintiff marked a photograph by drawing a ‘stick person’ figure to show how she lay on the ground with her head forward toward the street and to the left the sleepers leading to the driveway, and with legs and feet towards the house.^[21] 

20. [20]
    During his evidence, Mr Marr was asked: ‘Do you remember if it was raining at the time?’, to which he answered: ‘I think it was, or it'd just rained and it was wet.  Yeah.’^[22]He explained that he saw the plaintiff descend the stairs but did not see her fall as follows:^[23]

“Because I'm in the car, idling and playing with the stereo and stuff, and I looked up and she was coming down the stairs.  And ‑ and then I heard the slap when she fell, and then I looked back and she was on the ground crying.”

21. [21]
    He also marked a photograph by drawing a stick figure to show how he found the plaintiff – lying with her head toward the house (opposite to that described by the plaintiff).^[24]He described that “she was all dirty and wet from the ground”.^[25]

22. [22]
    As is apparent from that summary, Mr Marr’s evidence was inconsistent with the plaintiff’s evidence in some respects. He was also candid about his memory saying:^[26]

“Mr Marr, what’s your memory like of this incident that happened back in April of 2010?  What’s your memory like?

I don’t remember too much.  The most vivid thing I remember is just the sound of mum hitting the ground and the – while I was in my car, even with the car idling, it was just like a slap of thunder.”

23. [23]
    It seems to me that the car was likely facing the house such that Mr Marr was able to look up from the driver’s seat to see the plaintiff descend the stairs. This is consistent with Mr Marr’s evidence. I think the plaintiff was mistaken about that aspect since it was peripheral to her circumstances and contemplation at the time. However, I prefer the plaintiff’s evidence of her landing position. Mr Marr did not see her at that point, but was able to describe her position at the later time when he reached her.

24. [24]
    It seems to me, and I find, that the circumstances of the plaintiff’s fall were that:

1. At about 6:00 pm on 5 April 2010 the plaintiff was making her way via the front entry of the house to the waiting car on the driveway.  It was raining heavily. 

2. The stones at the foot of the stairs were wet and the surrounding ground was wet and sloshy. 

3. The plaintiff was moving with some haste down the stairs while holding the right side rail, then she paused on the bottom step to contemplate her path.

4. She successfully reached and made contact with her left foot on the first stone, but she lost her footing when the smooth sole of her left shoe slipped off that stone while she obliquely moved her body and aerially extended her right foot toward, but had not yet reached, the second stone. 

5. After the plaintiff slipped, she fell forward (and a little right), stretched out her right arm to break her fall, and landed heavily on her right hand, wrist and right side. 

6. She fractured her right wrist.

7. She came to rest on the ground with her head forward toward the street and to the left the sleepers (leading to the driveway), and with her legs and feet towards the house.^[27] 

8. She screamed in pain, as her son came to her aid shortly after, and helped her inside the house.

What caused the plaintiff to lose her footing and fall as she did?

25. [25]
    What caused the plaintiff’s left foot to slip on the first stone while she moved toward the second stone?

26. [26]
    The plaintiff alleges that the stones were defective in their size, colour and layout, and were slippery when wet, in that they were:^[28]

1. (a)
   set on about the same slope as the grassed area;

2. (b)
   slippery when wet;

3. (c)
   covered with a coating of mould or slime;

4. (d)
   small, the first stone closest to the front stairs measured about 335mm x 270mm and the second stone measured about 320mm x 250mm;

5. (e)
   of a dark colour, making it difficult to detect the existence of mould;

6. (f)
   spaced and placed unevenly, in particular,

1. (i)
   the first stone was placed at an awkward distance for the plaintiff to step onto, being too far from the bottom of the front stairs and was not at the same level as the “going” of the bottom step; and

2. (ii)
   the second stone was placed at an awkward angle about 45 degrees from the first stone;

7. (g)
   placed by the defendants in an attempt to alleviate water pooling on the grassed area;

8. (h)
   placed on an uneven and sloped surface;

1. (i)
   not placed in a straight line but at an angle requiring the plaintiff to take a sharp turn on the first stone to get to the second stone; and

10. (j)
    created an unusual danger for the plaintiff, especially in wet conditions, as she was required to step onto the first stone and then turn and change direction in order to step onto the second stone.

27. [27]
    To determine the matters of causation here, it is necessary to consider the disparate expert evidence in the context of the physical kinetics at play.

28. [28]
    I had the advantage of expert evidence of:

1. Justin O'Sullivan, a ergonomist and safety consultant of Ergowork;^[29]

2. Geoffrey Waddell, a consulting engineer of Dohrmann Consulting;^[30]

3. Mark Catchpole, a building surveyor of Catchpole Building Services;^[31]and

4. Frank Grigg an engineer of Forensic Engineering Consulting Pty Ltd.^[32]

Size & colour

29. [29]
    The photographs depict the stones as dark in colour.

30. [30]
    Justin O'Sullivan measured the first stone as approximately 335 millimetres ‘in the fore-aft direction and 270 millimetres in the side-to-side direction’.^[33]Mr Waddell measured the stone ‘at 33 centimetres across in a direction perpendicular to the step nosings, and 32 centimetres measuring parallel to the nosings’.^[34]Dr Grigg provided further detailed measurements.

31. [31]
    It seems to me that the plaintiff had no difficulty seeing the first or second stone as she stepped immediately before the slip and fall. Further, while the size of the stones defined a targeted and confined pathway, I am not satisfied that they were too small vis-à-vis the plaintiff’s shoe area. That is, there is no complaint by her that the contact area of her shoe was larger than the landing area of the stone.

Layout

32. [32]
    The plaintiff also points to the layout of the stones in terms of their placement on an uneven and sloped surface; as well as their horizontal, vertical and angular arrangement and spacing in relation to the stairs and each other.

33. [33]
    In his report dated 4 November 2015, Mr O'Sullivan said:^[35]

“In essence, the factors giving rise to a risk of slipping, as discussed here and in my original report, include the following:

• downward and forward momentum due to the significant step down height combined with forward stepping distance;
• significant frictional demand due to turning right when stepping down onto the first stone, located just off centre of the stairs, so as to access the second stepping stone and proceed toward the sleeper step;
• stepping onto a wet surface which is hard stone and relatively smooth as well as being sloped downhill; the surface of the stone is sloped about 6 degrees; the actual slip resistance of the stone is marginally flat but low for a slope and made worse by the momentum of contact likely and the breaking force due to turning on landing.”

34. [34]
    Later in his same report Mr O'Sullivan further remarked:^[36]

“Given the design, a person using the path in wet weather must choose to step with one foot onto the first stone and simultaneously turn to the right to step onto the second stone with the other foot – a demanding task in wet weather and involving a significant risk of slipping. Any mould present on the stones will significantly increase slipperiness in wet conditions and, due to the dark colour of the slate, be difficult to detect by casual observance.

The stones invite use in wet weather and therefore invite a person to follow a difficult and demanding path.  Without the stones, the user will tend to step down closer to the bottom of the stairs and walk directly towards the sleeper steps and be at less risk of slipping.  A more vertical approach to the ground in the first step down off the bottom of the stairs will involve less force on landing and less risk of slipping.”

35. [35]
    Mr O'Sullivan properly conceded that that there were so many variables that he could not say to any degree of probability, which were at play to cause the plaintiff to lose her footing.^[37]He agreed that the degree of departure from the Australian Standard relating to exterior paths and slopes was only 5mm across the surface of the first stone.^[38]

36. [36]
    Mr Waddell identified a number of safety issues associated with the placement and features of the stepping stones,^[39] being:

1. (a)
   The stones had an uneven surface.

2. (b)
   The horizontal stepping distance from the bottom step to the first stone was too great.

3. (c)
   The vertical stepping distance from the bottom step to the first stone was too great.

4. (d)
   The layout of the stones would cause a person using them to make a sharp turn to the right of about 70 degrees followed by a reasonably long step to the second stone.

5. (e)
   The first stone generally sloped down away from the steps – its average slope along this upper half was about 5.2 degrees, or about 9%.

6. (f)
   The stone was reportedly slippery.

37. [37]
    He opined in his report that:^[40]

“The first six points listed above each discuss a feature of the stepping stone which would have been likely to have made the stone less safe than it would have been, had its upper surface been flat, level and clean, and had it been, close to the steps, higher and better aligned with the second step.  It is possible that any one of these listed features could have caused Mrs Hong to fall, but in combination, it is unsurprising that an incident of this nature eventually occurred.”

38. [38]
    In contrast, Dr Grigg opined that the placement of the stones identified a relatively safe path to and from the steps, with the spacing within the typical step length of both males (76 cm) and females (66 cm).^[41]He testified that ‘the distance to be stepped is within the normal range for women and men – the horizontal distance is within the normal range of walking and the vertical height, whilst smaller than the normal maximum for steps, there are plenty of steps that are of those sort of proportions’.^[42] 

39. [39]
    In cross-examination, Dr Grigg agreed that for a person descending the steps on the right side, such as the plaintiff, the placement of the two stones required the person to make a right turn. This was not the case for a person descending the stairs on the left hand side.^[43]In his evidence, under cross-examination, Dr Grigg acknowledged:^[44]

“Now, what I’m suggesting to you that having to make that right turn to go from the first stepping stone to the second stepping stone of itself increases the risk of slipping? --- Yes.

And when the stepping stones are wet that risk is increased even more? --- Well, yes, we have already covered that.”

40. [40]
    Although, Dr Grigg accepted that the step down from the bottom step to the first stone is further than desirable, it is of no causative consequence in relation to the plaintiff’s first phase of securely reaching the first stone with her left foot.^[45] 

41. [41]
    It was the second phase of the plaintiff’s oblique movement toward the second stone that caused her grief when the sole of her left shoe slipped off the first stone. It is likely that the plaintiff’s left foot destabilised on the first stone as she obliquely turned and transferred her body weight while she simultaneously moved her right foot off the bottom step, and extended it toward the second stone. In this way her movement was dictated by the placement, arrangement and spacing of the stones vis-à-vis the stairs and each other. This seems to be what the plaintiff alluded to in a facsimile to the agents on 14 July 2010 in response to an exit report at the conclusion of the lease, when she wrote: ‘… I fell at the bottom of the stairs due to the slippery stepping stones so strategically placed there and broke my wrist’.

42. [42]
    Therefore, it seems to me that the vertical and horizontal layout of the stones were causative factors in the unusual circumstances of the plaintiff’s hurried movement and footwear in the rainy and wet conditions.

Slip resistance

43. [43]
    The plaintiff asserts that the stones were (a) slippery when wet; and/or (b) covered with a coating of mould or slime.

44. [44]
    In his report dated 29 August 2016,^[46]Dr Grigg carefully described the stones as follows:^[47]

 “11. Both of the stepping stones:

1. (a)
   appeared to be the same metamorphic rock type.  Assuming that it is a local stone, they are most likely to be one of the “Barron River metamorphic” which lie immediately west of the Cairns Coastal Plain and include “phyllite, slate, mica schist, gray wacke, and sub grey wacke, with minor chert, quartzite, greenstone and conglomerates.  Although slate is one of the possibilities, the stepping stones did not have the evenly layered and cleaving structure of typical slate.
2. (b)
   Had a rough cohesive surface and were non-fryable.
3. (c)
   Had a largish central area with a consistent slope (see figures 2 and 3).
4. (d)
   Under close scrutiny (confirmed with the use of a magnifying lens), had patches of light discolouration consistent with historic lichen/fungus growth.”

45. [45]
    The plaintiff is the only contemporary historian that said the stone was ‘slippery’ at the time.  She drew on her perception of how she lost her footing as she moved her right foot from the bottom step toward the second stone.^[48]There was no other contemporaneous observations or testing.  She testified that her foot ‘slipped’ from the first stone that was ‘so slippery’ in the wet conditions.^[49]This was after her initial step with her left foot from the bottom step onto the first stone without slippage.^[50]It was raining pretty heavily, and she was ‘a bit hurried ….  hurrying a little bit, but not a great deal’.^[51]She recalled that ‘it was all sloshy there and I had nice shoes on and I didn’t want to wet them’.^[52]They were flat-soled shoes, with rippling at the heel and toe, but a flat and smooth centre sole.^[53] 

46. [46]
    While there is direct evidence, which I accept, that the plaintiff was negotiating the stones in the rain, the plaintiff also advocates for a finding that the plaintiff’s stones’ were not cleaned since January 2009 and were covered with a coating of mould or slime at the time of the incident. This is predicated upon circumstantial evidence and inferences that the stones were not pressured cleaned after January 2009, and had become mossy, mouldy or slimy at the commencement of the lease on 16 January 2010.^[54]The plaintiff points to:

1. photographs of the apparently uncleaned state of the adjacent driveway and front porch/veranda as at 15 or 16 January 2010,^[55]and

2. the Entry Condition Report only signed by the plaintiff on 21 January 2010, with the plaintiff’s note that the “Entry” (referring to the front porch/veranda) was “very dirty”.

47. [47]
    The plaintiff also points to this evidence to discredit Mr Brophy, the female defendant, who testified that she pressure cleaned the two stones in January 2010 following a previous tenancy and before the start of the plaintiff’s lease in early January 2010.  Ms Brophy described that she spent three or four days cleaning the house and gardens, and also engaged contractors through her letting agent, Mr Barton.^[56]She said that she cleaned both the interior and exterior of the house, including the stones using a Gerni borrowed from a friend.^[57]She maintained her recollection that pieces flicked off the stones as she cleaned them.^[58]I accept her evidence.

48. [48]
    This evidence is consistent with an earlier Entry Condition Report signed on 16 January 2010, and the second Entry Condition Report signed on 21 January 2010, which both noted “All completely cleaned, paved areas water blasted, gardens just tidied/trimmed and mulched.”^[59]And in the latter report the defendants’ agent noted that the “Balcony/Porch Deck” - “Back patio – all pressured cleaned including ceiling”.^[60] 

49. [49]
    There are no photographs clearly showing as to the presence of moss, mould or slime on the stones as at the commencement or duration of the lease. I am also unassisted by any expert evidence, since expert testing on the stones occurred years after the incident.

50. [50]
    Even if the stones were not cleaned (or thoroughly cleaned) at the commencement of the lease, there is a dearth of evidence about moss, mould or slime on the stones, or even whether the stones were prone to any such build up by the time of the plaintiff’s slip and fall. Mr Hutton acknowledged that there was a particular mould problem with the pavers in an outdoor area at the rear of the premises. He couldn’t recall how often the stones needed cleaning, but thought it was “at least once a year”.^[61]Ms Brophy testified that the stones were cleaned every 12 months, which she believed was sufficient.  I accept her evidence that she had thoroughly cleaned the two stepping stones in January of 2009, and again in January 2010, shortly before the commencement of the lease.

51. [51]
    Ms Brophy testified that she never had or saw others experience stones being slippery when she lived in the house, including wet periods.^[62]Similarly, Mr Hutton did not have or see others have trouble, or receive any complaints about with slipperiness on the stones, including during periods of “several big cyclones”.^[63]

52. [52]
    In January 2009, after the defendants moved out of the house, they received no complaint concerning the stones from the tenants who occupied the house until December 2009.^[64] 

53. [53]
    Further, the plaintiff herself made no complaint about the cleanliness, or build up of moss, mould or slime on the stones at any time during the tenancy before the incident.^[65]The first time that the plaintiff communicated any issue with the stones was in a facsimile to the agents on 14 July 2010 in response to an exit report at the conclusion of the lease.  She stated: ‘… I fell at the bottom of the stairs due to the slippery stepping stones so strategically placed there and broke my wrist’.  Even so, there was no express assertion of mould, slime or the like. 

54. [54]
    The defendants continued to rent the house without any modification to the stones after the plaintiff’s tenancy.^[66]No complaints were received by the defendants or their agent, from the subsequent tenants before its sale in June 2015.^[67]

55. [55]
    I am not satisfied on the balance of probabilities that the first stone was mossy, mouldy or slimly at the time of the incident so as to cause or contribute to the plaintiff’s slip and fall. However, I accept that the first stone was probably wet due to the rainy and ‘sloshy’ conditions prevailing at the time of the fall. The critical issue is whether those conditions caused or contributed to the plaintiff’s slip and fall. This was the subject of expert evidence.

56. [56]
    Mr O'Sullivan performed basic testing on the stone.

57. [57]
    He had the benefit of examining at least one of the plaintiff’s shoes, and remarked that the soft sole would conform to the surface of the rock on landing.^[68]However, he did not use the plaintiff’s shoe or simulate the prevailing wet conditions.  Instead, Mr O'Sullivan used his own shoe and leg to do heel strike and heel angle tests.^[69]The heel angle test, which generated a co-efficient of friction of 0.58,^[70]is more apt in these circumstances where the plaintiff had planted her left foot on the stone before obliquely moving the other towards the second stone.^[71]The result was well within the highest rating of “P5” for slip resistance available under the Australian Standards was a formerly known as a class “V”. This related to a surface where the BPN (British Pendulum Number) was over 54. Even the heel strike result was in the midway of the second highest class of “P4” for BPNs between 45 and 54.^[72]

58. [58]
    It seems to me that Mr O'Sullivan’s measurements evidence that the first stone in its dry state had good, or at least reasonable, slip resistance. But they were not the conditions facing the plaintiff.

59. [59]
    Having already excluded moss, mould or slime, I am left with to consider whether a slipping effect was caused by the prevailing rain and ‘sloshy’ conditions.^[73]I accept that the ground surrounding the stone was ‘sloshy’, and historically prone to pooling.^[74]But it is tolerably clear that the stone was not so waterlogged as to dissuade the plaintiff proceedings lest she wet her shoes.^[75]This coupled with the plaintiff’s successful landing on the first stone excludes an aquaplaning effect.^[76]However, it is conceivable that the heavy rain on and around the stone may have created a splash effect of rainwater and surface water.

60. [60]
    Mr Waddell also drew conclusions from various tests on the stones.

61. [61]
    In his report Mr Waddell identified a number of angles, and associated different coefficients of friction taking into account the ground topography.

62. [62]
    He conducted two pendulum tests, one downhill and one uphill, which resulted in a co-efficient of friction of BPN 55 in one direction and BPN 65 in the other.^[77]These fall within a “P5” rating under Australian Standard 4586, and represent a very low slip risk of when wet.^[78]

63. [63]
    Under cross-examination, he accepted that the ground topography after six years was less than reliable, and ground levels were likely to be a little bit lower than 2010.^[79]He also agreed that the stone was variously rough, and would provide good slip resistance in such places.^[80]He also conceded that the stone was a very complicated and tiny bit of terrain, and making it an artificial exercise to measure and analyse roughness to angles and slopes,^[81]and extrapolate these findings to apply Australian Standards relating to ramps and large structures.^[82]There were innumerable numbers of small variations over the surface of the stone.^[83]He could not venture a guess at how many separate facets or slopes there were on the stone in total, and agreed there were potentially hundreds.^[84]He also agreed that the multitude of little ridges and facets and areas of roughness might be of benefit to a soft shoe, which was able to conform to the surface.^[85]The placement of the plaintiff’s foot an inch one way or the other could completely change the overall level of grip available.^[86]Mr Waddell also agreed that any number of possible external contaminants might have affected the traction of the stone’s surface.^[87]

64. [64]
    In the end, Mr Waddell’s evidence exposes considerable limitations of conventional pendulum testing to reliably and accurately measure the traction encountered by the plaintiff. This is exacerbated by the plaintiff’s choice of footwear and the prevailing wet conditions. I’m left with the impression that Mr Waddell has yielded to some speculation in his conclusionary remarks.

65. [65]
    Earlier in his report dated 17 November 2016, Mr Waddell opined that the stone’s uneven surface reduced the stability of a foot placed on them, and thereby increasing the risk of a slip or a stumble.^[88]However, the providence of the opinion is unclear.  Indeed, in cross-examination he said:^[89]

“Now, I’m not saying it’s exact or entirely accurate and I’ve said throughout that this – this is inaccurate in a number of ways, but just to give an impression of what would happen if a person put their foot on a slope of that type of magnitude, how much would the coefficient of friction need to increase?”

66. [66]
    Later in the same report be distanced himself from measurements of frictional characteristics and further speculated as follows:^[90]

“There is a risk here that the focus in this matter will be on measurements, or attempted measurements, of the frictional characteristics of the stepping stone.  Had the stone been found to be slippery this would have been a key issue.  Since it was not found to be unduly slippery in its as inspected condition all that can be said about its frictional characteristics is that at a maximum they may have been acceptable.  Its minimum frictional characteristics when contaminated with moss or other growth, and with rainfall, are unknown but would be expected to be significantly lower.”

67. [67]
    Even so, he postulated that the mechanism of the plaintiff’s slip involved her starting to slip as she landed her left foot and continuing to slip as she tried to step with her right foot.^[91]He acknowledged that this may have resulted in a different resting position that was drawn by the plaintiff in the photograph (Exhibit 7),^[92]which he agreed was also equally consistent with a trip, or a loss of traction at the time she was stepping towards the second stone.^[93]

68. [68]
    The plaintiff’s counsel submits that the marked up photograph (Exhibit 7) shows the plaintiff lying on her right side by the timber steps (sleepers) adjacent to the driveway, with her right arm and upper body on the lawn in front of the timber steps, and her legs were on the grassed area, but forward and to the right of the first stone.^[94]

69. [69]
    The plaintiff’s grounding immediately after the fall may provide some indicia of her momentum. Doing the best I can to interpret the photograph marked by the plaintiff, it seems to me that she fell forward to land with her head forward toward the street and to the left the sleepers (leading to the driveway), and with her feet towards the house.^[95] 

70. [70]
    Beyond that observation, I think it is too speculative to make a conclusion from the rudimentary drawing. I think it is too fraught interpreting the rather simplistic ‘stick person’ markings in the photograph (Exhibit 7) with any greater precision in the absence of a corresponding detailed description from the plaintiff.

71. [71]
    Dr Frank Grigg also provided expert evidence to the court.^[96]

72. [72]
    Unlike Mr O'Sullivan and Mr Waddell, Dr Grigg relied upon unchallenged measurements of slip resistance using a XL Variable Incidence Tribometer (“VIT”) conducted by his associate Dr Carnavas.^[97]That devise produced results ranging from a BPN equivalent of 55 to a BPN equivalent of 68.  These pointed to a slip resistance being equal to or greater than a class V or “P5”.^[98]

73. [73]
    Consistently with these results, Dr Grigg opined that the stones were an improvement on the pre-existing wet sloping ground, and muddy lubricant underfoot.^[99]He further opined, that the stones, even when wet, had a sufficient co-efficient of friction to be suitable for use as stepping-stones.

74. [74]
    I prefer the evidence of Dr Grigg, where it is inconsistent with Mr O'Sullivan and Mr Waddell, and conclude that the first stone did have sufficient slip resistance in wet and dry conditions. 

75. [75]
    But that is not the end of the matter and notwithstanding the adequacy of the stone’s slip resistance, causation must be considered having regard to other factors of the prevailing wet conditions, the plaintiff’s hurried movement and footwear, the stones’ placement on the uneven and sloped surface, and their horizontal, vertical and angular arrangement and spacing in relation to the stairs and each other. It seems to me that an unlikely combination of those other factors caused the plaintiff’s left foot to slip on the first stone while she moved toward the second stone.

76. [76]
    I am not satisfied that the stone’s size or surface contributed to the plaintiff’s slip and fall. Rather, the significant causative factors of the plaintiff’s slip and fall involved an unusual combination of the layout of the stones, the plaintiff’s hurried movement and footwear, and the rainy and wet conditions.

Did the defendant’s breach of clauses 25 of the lease?

77. [77]
    I now turn to consider whether these circumstances render the defendants liable for breach of contract, in particular, clause 25 of the lease.

78. [78]
    The lease is a Residential Tenancy Agreement within the meaning of s 12 of the Residential Tenancies and Rooming Accommodation Act 2008 Qld (“RTRA”) and the premises were “residential premises” within the meaning of s 10 of that Act.  Obligations of the lessor and a tenant were also statutorily imposed on the parties,^[100]and these were also expressly reflected in the lease.^[101]

Landlord’s Obligations

79. [79]
    Clauses 25(1) and (2) of the lease, relevantly, impose the following contractual obligations on the defendants as lessors:

“(1) At the start of the tenancy, the lessor must ensure:

1. (a)
   …
2. (b)
   The premises are fit for the tenant to live in; and
3. (c)
   The premises are in good repair; and
4. (d)
   …

(2) While the tenancy continues, the lessor must:

1. (a)
   Maintain the premises in a way that the premises remain fit for the tenant to live in; and
2. (b)
   Maintain the premises in good repair;
3. (c)
   ….”

80. [80]
    The plaintiff relies upon breaches of those terms as pleaded in paragraph 9 of the Further Amended Statement of Claim, especially:

“9 (a)  ….

2. (ii)
   The stepping stones were unsafe for use in wet conditions to cross the grassed area from the front stairs to the driveway;

3. (iii)
   The first stepping stone was positioned too far from the bottom of the front stairs and was not positioned at the correct height;

4. (iv)
   The Defendants should have used a number of 400mm x 400mm concrete pavers, instead of the 2 stepping stones, to make a proper and adequate pathway form the bottom of the front stairs, across the grassed area to the driveway. …

…

5. (e)
   The defendants failed to clean the stepping stones prior to the commencement of the lease and/or during the period between the commencement of the lease and the incident;
6. (f)
   The defendants provided a pathway for the plaintiff between the front stairs and the driveway, which unreasonably exposed her to the risk of injury from slipping and falling in wet weather;
7. (g)
   The defendants failed to ensure that the pathway from the front stairs to the driveway was reasonably safe for use by the plaintiff in wet conditions;
8. (h)
   The defendants failed to install a proper and adequate concrete path, or such other safe and suitable path, between the bottom of the front stairs and the timber steps across the grassed area to the driveway.”

81. [81]
    The terminology in clause 25 differentiates the lessor’s obligations at the start of the tenancy, with those while the tenancy continues. At the start of the tenancy the lessor must “ensure” that the premises are fit and in good repair, whereas the lessor must thereafter “maintain” the premises so they remain fit and in good repair.

82. [82]
    In Gration v C Gillan Investments Pty Ltd,^[102]the Court of Appeal (by majority) allowed a landlord’s appeal where a tenant was injured by a rotten step that existed at the start of the tenancy.  The case involved older but analogous contractual obligations and statutorily provisions.^[103]Under s 103(2) of the repealed Residential Tenancies Act 1994 the landlord must "ensure" that the premises are in good repair at the start of the tenancy, and pursuant to s 103(3) the obligation was that the landlord "must maintain the premises . . . in good repair." 

83. [83]
    After comparing the different terminology used in defining the obligation on the landlord at the commencement of the tenancy and subsequently throughout the tenancy, Williams JA rationalised the distinction at [4] and [5] saying:

“[4] Generally liability of the landlord during the tenancy will be dependent on the tenant giving notice of the defect; see, for example, Austin v Bonney [1999] 1 Qd R 114.  In my view the legislature deliberately chose a different formula when defining the obligation on the lessor at the commencement of the tenancy from that which applied during the currency of the tenancy.

[5] Why there should be such a distinction was clearly explained by Gaudron J in Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 359, where she said:

"If the position is considered at or immediately prior to the commencement of the lease, the relationship is not unlike that of occupier and invitee in that the state of the premises is known to, or can be ascertained by the landlord.  Moreover and as in the case of an occupier, the landlord is in a position of control in relation to the premises. In particular, the landlord is in a position to control the state in which the premises are let.  …

Once a tenancy commences, there is an important change in the features of the relationship which bear on the question of the landlord's liability in negligence.  Generally speaking, it is the tenant who is then in a position to ascertain and control the state of the premises.  And again generally speaking, if defects develop during the tenancy, the landlord will become aware of them only if informed of their existence by the tenant or by members of the tenant's household.””

84. [84]
    His Honour adopted the judicial definition of the term "ensure" formulated by Vaisey J in Reliance Permanent Building Society v Harwood-Stamper^[104]that:

“The word "ensure" has puzzled me a good deal.  I think it is used in the common and colloquial sense in which "making sure" is used, that is, as equivalent to ascertaining or satisfying oneself, and does not mean anything in the nature of warranty or guarantee.”

85. [85]
    In that sense, His Honour embraced the remarks of Kitchen J in Knueppel v Zarpas^[105]as fully and accurately setting out the obligation imposed on a lessor:^[106]

“If that is the sense in which "ensure" is used in s 68 then before the tenancy begins the landlord (or at least some person on his behalf) must inspect the premises to ascertain the state of repair in order that the landlord is in a position to make sure they are in a reasonable state of repair at the beginning of the tenancy.  That state of disrepair which such an inspection would reveal to a reasonable observer, the landlord has notice of.”

86. [86]
    After further analysis, Williams JA concluded:

‘[17] All of that to my mind reinforces the conclusion that the obligation imposed by the 1994 Act to ensure that at the start of the tenancy the premises are in good repair obliges the landlord, prior to the commencement of the tenancy, to inspect the premises to ascertain the state of repair in order that he is in a position to discharge the duty imposed on him by the statute.’

87. [87]
    In a separate judgment, Wilson J found it instructive to look to domestic and Canadian decisions when considering the provisions (which were substituted by a 1998 amending act). His Honour said:

“[86]  Despite the change from “a reasonable state of repair” to “good repair”, the standards demanded of a landlord are not absolute. The Legislature stopped short of imposing a standard of perfect repair.

…

[89]  The 1998 Amendment Act should be similarly construed as not imposing an obligation on the landlord to remedy defects beyond those of which he or she has actual or constructive notice.  Here the appellant had no actual notice of the wood rot; whether it had constructive notice was a question of fact which the trial judge must be taken to have determined against it.  Unless that finding should be reversed, the appeal cannot succeed.”

88. [88]
    In the dissenting judgment, Muir J referred to Northern Sandblasting Pty Ltd v Harris,^[107] where the High Court considered a landlord’s obligations in s 106 of the Property Law Act 1974 (Qld) and s 7(a) of the Residential Tenancies Act 1975 (Qld).  His Honour remarked:^[108]

“[43] Gummow J concluded that the obligations imposed by these provisions, although contractual in nature, and giving rise to a duty on the landlord to perform the contract, were not absolute but were directed to providing “reasonable standards for the rental premises to which [they] applied, rather than to render lessors insurers.””

89. [89]
    Muir J recognised the provenance of the conclusion from equivalent provisions in the United Kingdom and Canada. After discussing the development of the law in that context including Jones v Bartlett  (2000) 205 CLR 166, His Honour said:^[109]

“[55]  As earlier discussion shows, there is a long tradition in Australia, the United Kingdom and Canada of not construing provisions of the nature of those under consideration so as to impose absolute obligations.  That approach is consistent with the development of the common law in this area.  In Jones v Bartlett, Gummow and Hayne JJ observed that the landlord’s duty to the tenant at common law did not “exceed the content of statutory requirements in various Australian jurisdictions”.

They defined the common law duty as:

“Broadly, the content of the landlord's duty to the tenant will be conterminous with a requirement that the premises be reasonably fit for the purposes for which they are let, namely habitation as a domestic residence.”

[56] Their Honours expanded on the duty of care as follows:

“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.  The duty with respect to dangerous defects will be discharged if the landlord takes reasonable steps to ascertain the existence of any such defects and, once the landlord knows of any, if the landlord takes reasonable steps to remove them or to make the premises safe.  This does not amount to a proposition that the ordinary use of the premises for the purpose for which they are let must not cause injury; it is that the landlord has acted in a manner reasonably to remove the risks.””

90. [90]
    The most recent consideration of the principles is found in Sheehy v Hobbs & Anor,^[110]where McMeekin J considered the plight of a tenant who was rendered paraplegic when she fell down an internal flight of steps in her rented unit.  She sued in tort and contract.

91. [91]
    In that case while the evidence showed “that the Sheehy family had experienced a number of slips and falls on the stairs over a 12 month period,”^[111]McMeekin J concluded that the proper approach to the case was one in which no complaint had been made.^[112]In that regard the decision is similar to here, where there is no evidence of a previous complaint or injury.

92. [92]
    The court found that the steps did not meet the Australian Standards, and had features that “presented an increased risk of slipping and falling than they would have if these…were absent.”^[113]They were “steep with relatively short goings” and had other deficiencies including rounded nosings, less than optimum slip resistance, no effective handrail, and poor lighting.^[114] 

93. [93]
    But McMeekin J found the stairs’ non-compliance was not determinative saying:^[115]

“[8]  While much of the expert evidence called dwelt on the meeting of Building Code requirements and Australian Standards, the meeting of such Codes and Standards does not determine that the defendants have met the duties imposed on them at common law, under statute, or under their tenancy agreement nor does breach of such Codes and Standards show that they have not save to the extent any statute or contractual term requires adherence to such Codes or Standards.”

94. [94]
    His Honour saw only limited assistance of Standards to show the desirability for stairs to have a reasonably high coefficient of friction to inform foreseeability of risk of a slip. His Honour observed:^[116]

“[26]  The applicability of such standards to a case like the present is debateable.  This was not a public place.  Landlords, it might be said, are aware that members of the public, in the form of visitors, might use the stairs in question and that tenants could potentially be elderly or incapacitated in some way.  But it is well established that standards applicable to commercial or other premises might well be different to those applicable to residential premises.  And there was no evidence that landlords are in the habit of consulting Australian Standards let alone British ones.

[27]  The only relevance I can see in these Standards is that they assist in showing that a reasonably high coefficient of friction is desirable on stairs and it follows that in determining the foreseeability of the risk of a slip and fall the lower the coefficient the greater the risk.”

95. [95]
    His Honour later found:^[117]

“[62]  In summary the evidence shows that the stairs could have been made safer, that there were features of them that in all probability would lead to someone slipping and in all probability contributed to the plaintiff’s fall.  Causation, it seems to me, is a matter of common sense.  The stairway in question did not meet the minimum requirements laid down by the Building Code of Australia in their carpeted state as the going on the first tread (and on average over the treads) was slightly less than the minimum, had nosings that were rounded and provided a poor visual cue to a user of the stairs all of which lead to an increased risk of falling.  This risk was compounded by the relatively low level of lighting provided over the stairs.  There was minimal ability to avert a fall given the absence of handrails.

[63]  Steps that could have been taken that would have substantially lessened the risk of a fall included the provision of an appropriate handrail, the provision of some form of improved nosing on the stairs by the installation of a non skid strip, and improvement of lighting.  These were all simple measures and inexpensive.”

96. [96]
    Having made these findings, his Honour considered the claims for breach of contract. He observed:^[118]

“[69]  Despite the use of the words “must ensure” in cl 25(1) and s 103(2) and “must” “maintain” “ensure” and “keep” in cl 25(2) and s 103(3), it is now well established that the obligation to meet the requirements of the Building Code is not strict.  The obligation imposed on the landlord by these contractual and statutory provisions does not extend to any warranty or guarantee of safety but “obliges the lessor to take reasonable steps to ascertain and satisfy himself” about the safety of the premises.  … That statement was made in the context of the obligations in cl 25(1)(a) and s 103(2).”

97. [97]
    Considering the non-compliance of the stairs with the Building Code his Honour stated:^[119]

“[75]  It was not suggested that the defendants were aware of the minimal difference in the goings of the stairs as carpeted, or that a reasonable landlord should have been.  The difference here was a few millimetres.  The only way that the deficit could have been discovered was to take a ruler and measure the goings on each step and then compare that measurement to the requirements of the Code.  I cannot conceive that a failure by a landlord to undertake such actions between tenancies is unreasonable.  There was certainly no evidence that landlords typically did any such thing.”

98. [98]
    His Honour concluded that the deficiencies were not caught by clause 25(1)(a), (c) or (d), but went on to consider whether the premises were “fit for the tenant to live in” within the meaning of 25(1)(b).  In that regard he turned to the leading High Court decision of Jones v Bartlett,^[120]saying:^[121]

“[78] There the adult son of the tenant of the rented premises was injured when he walked into an internal glass door.  The glass shattered. Had it been thicker the injury would have been avoided.  The door complied with all building requirements at the time of its construction but not with building requirements that had been in place for some decades prior to his injury.  There was no building regulation which required the owner of the premises to replace the glass in doors so as to comply with the regulations in force from time to time unless the glass had to be replaced for some other reason.  It was held that the landlord had breached no duty that he owed to the plaintiff.

[79] The various judgments in Jones express the duty owed by a landlord to a tenant in various ways.  Gleeson CJ held:

‘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.’

[80] Kirby J’s judgment was to a like effect:

‘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 agent

And

that duty was limited to one of taking reasonable care to avoid a foreseeable risk of injury to a person in the position of the appellant.’

[81] Gaudron J identified the duty as one “to take such care as is reasonable in the circumstances” and held that that duty required the landlord “to take reasonable care to put and keep premises in a safe state of repair.”

[82] Callinan J doubted that a duty was owed at all: “If any duty were owed, a matter of which I am far from convinced, I would define it as no more than a duty to provide, at the inception only of the tenancy, habitable premises.”

[83] Gummow and Hayne JJ described the duty as being “conterminous with a requirement that the premises be reasonably fit for the purposes for which they are let, namely habitation as a domestic residence.”  The premises would not be reasonably fit for such purposes where the ordinary use of the premises for that purpose would “as a matter of reasonable foreseeability” cause injury.  Their Honours said:

‘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.’

[84] Their Honours explained what they meant in this passage:

‘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 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.  The duty with respect to dangerous defects will be discharged if the landlord takes reasonable steps to ascertain the existence of any such defects and, once the landlord knows of any, if the landlord takes reasonable steps to remove them or to make the premises safe.  This does not amount to a proposition that the ordinary use of the premises for the purpose for which they are let must not cause injury; it is that the landlord has acted in a manner reasonably to remove the risks. (emphasis added)’

[85] For the purposes of this case the key obligation there discussed is to take “reasonable steps to ascertain the existence of any such defects” and no judge in the plurality put the duty any higher.’’

99. [99]
    McMeekin J considered that the landlords were entitled to assume that the stairs were reasonably safe in the absence of knowledge of a particular risk of slipping and falling, and rejected the proposition that the landlords should have had a pre-letting expert inspection. He explained it this way:^[122] 

“[94] The major difficulty for the plaintiff is her formulation of what steps were expected by the owner of such a unit.   However the duty owed by a landlord be expressed it involves no more than the taking of reasonable steps to discover and deal with the risk of injury in question.  And I cannot accept that the steps that the landlords here would have had to undertake to discover and meet the risk could be considered reasonable.  That is so because the ‘defect’ here complained of was not only not known to the landlords but was not an obvious one to a lay person.

[95] There is no evidence that a lay person uninstructed in such matters as the relevant literature and standards on the safety of stairs, that informs Mr Kahler’s opinion and report, would appreciate that the level of risk here was out of the ordinary for stairs in a residential unit complex, if indeed it is.  And I am reasonably confident that lay persons do not in fact have such knowledge.  The essential step needed then was the retention of an expert such as Mr Kahler with his extensive knowledge of the relevant literature and standards, to examine and report on the stairs.  While there may be cases where it is reasonable to expect that such an expert be retained by a landlord I cannot see that such a step was called for in this case.

[96] There are several reasons why the retaining of such an expert was not reasonable.

[97] An obvious reason is that, so far as the evidence shows, the engagement of experts without notice of some particular problem is not usually done.  The landlords were entitled to assume that the stairs were reasonably safe in the absence of any actual knowledge the stairs constituted a particular level of risk of slipping and falling, perhaps described as over and above the average, assuming that is what Mr Kahler’s opinion amounts to.

[98] There is nothing peculiar about these stairs which single them out from typical internal stairs in thousands of units throughout the State.  The retention of such experts was not shown to fall within the course of ‘ordinary reasonable human conduct’.”

100. [100]
     His Honour added: ‘to engage experts to examine every feature of a dwelling that might potentially cause injury would very likely involve substantial and, to many landlords, prohibitive, expense’.^[123]He drew the following propositions from the plurality judgments in Jones v Barlett:^[124]

1. (a)
   there is no duty on a landlord of a residential premises to ensure that those premises are as safe for residential use as reasonable care and skill on the part of anyone could make them;^[125]
2. (b)
   it is necessary to show that the premises are defective in the relevant sense and that the landlords knew or ought to have known of that defect;^[126]and
3. (c)
   there is no obligation to replace items which, although not defective, involve a foreseeable risk of injury simply because safer items are available.^[127]

101. [101]
     Having regard to these authorities, it seems to me that the defendant’s contractual duties under clause 25 do not impose some warranty or guarantee of safety. The use of the word "ensure" in s.25(1) obliges the lessor to take reasonable steps to ascertain and satisfy himself that at the start of the tenancy the premises are in clean, fit for the tenant to live in, and in good repair. This is to be contrasted with the use of the term “maintain” in s 25(2) which to my mind depends on the tenant giving notice of the defect (unless otherwise noticed by the landlord). Nevertheless, the landlord must take reasonable steps to ascertain and satisfy himself that at start and during the tenancy that he has not breached of laws about the health or safety of those using or entering the premises.^[128]

Tenant’s Obligations

102. [102]
     The defendants rely upon the plaintiff’s ongoing obligations to maintain the premises during the tenancy found in clauses 26 and 46, Part 3 and separate ‘special conditions’.

103. [103]
     Clauses 26 provides:

“(1) The tenant must keep the premises clean, having regard to their condition at the start of the tenancy.

(2) The tenant must not maliciously damage, or allow someone else to maliciously damage, the premises.”

104. [104]
     Clauses 46 relevantly provides:

“(1) During the tenancy, the tenant must: …

(d) maintain the lawns and gardens of the premises having regard to their condition at the commencement of the tenancy, including mowing the lawns, weeding the gardens and watering the lawns and gardens (subject to council watering restrictions); …”

105. [105]
     The Lease also contained a special term in Part 3 as follows:

“(3) Maintenance:  the tenant agrees to refer all repairs and maintenance to our office.”

106. [106]
     Special conditions ‘as per attached special conditions to lease’ signed by the plaintiff were also incorporated into the lease.  It included an obligation that: ‘gardens (including the Nature Strip) are to be kept well maintained at all times throughout your tenancy.  Including Mowing, Edges, Weeding and Watering on a regular bases [sic] or as council permits’.  It also provided that rent was to be kept a minimum of one week in advance at all times.

107. [107]
     It is within this legal framework of mutual obligations, that I consider whether the defendants have breached their obligations as landlords.

Did the defendants fail to ensure the premises were fit to live in, or in good repair at the commencement of the lease, in breach of sub-clauses 25(1)(b) &(c) of the lease?

108. [108]
     The plaintiff alleges that:^[129]

1. (a)
   The stones were unsafe for use in wet conditions to cross the grassed area from the front stairs to the driveway;
2. (b)
   The first stone was positioned too far from the bottom of the front stairs and was not positioned at the correct height;
3. (c)
   The defendants should have used a number of 400mm x 400mm concrete pavers, instead of the 2 stones, to make a proper and adequate pathway from the bottom of the front stairs, across the grassed area to the driveway.
4. (d)
   The defendants failed to clean the stones prior to the commencement of the lease and/or during the period between the commencement of the lease and the incident.
5. (e)
   The defendants provided a pathway for the plaintiff between the front stairs and the driveway, which unreasonably exposed her to the risk of injury from slipping and falling in wet weather;
6. (f)
   The defendants failed to ensure that the pathway from the front stairs to the driveway was reasonably safe for use by the plaintiff in wet conditions;
7. (g)
   The defendants failed to install a proper and adequate concrete path, or such other safe and suitable path, between the bottom of the front stairs and the timber steps across the grassed area to the driveway.

109. [109]
     Many of these matters have merged into the discussion about factual causation above. I have concluded that the colour, size and slip resistance of the stones were adequate, and not causative of the plaintiff’s slip and fall. I also accept Ms Brophy’s evidence that the defendants cleaned the stones and they remained without moss, mould or slime as at the commencement of the lease. I am also satisfied that the layout of the stones provided an adequate pathway in dry conditions. However, it seems to me that the vertical and horizontal layout of the stones where causative factors in the unusual circumstances of the plaintiff’s hurried movement and footwear in the rainy and wet conditions.

110. [110]
     Even so, it is not enough for the plaintiff to merely point to the layout of the stones placed by the defendants before the start of the lease. The question of liability requires consideration of whether the defendants took reasonable steps to ascertain and satisfy themselves that at the start of the tenancy the premises were fit for the tenant to live in, and/or in good repair in wet conditions.

111. [111]
     The defendants argue that:^[130]

1. (a)
   The contractual obligations on a landlord do not constitute a warranty or guarantee of the safety of the premises, but merely oblige a landlord to take reasonable steps to satisfy himself or herself of the safety of the premises at the outset of the lease, and to reasonably respond to hazards subsequently brought to their attention.
2. (b)
   The pathway did not, as a question of fact, present a risk or hazard at the commencement of the lease which a reasonable inspection would be expected to detect.  In the absence of any contamination, the first stone was not as a matter of fact unduly slippery.  It was clean at the commencement of the tenancy and afforded good traction underfoot. Its position was not such as to create an unreasonable risk of injury, or such as to make the premises not fit to live in.
3. (c)
   The defendants conducted a reasonable inspection of the premises generally, and the stones in particular, prior to the commencement of the lease (which included the female defendant spray-blasting each of the stones).  There was no duty at law to engage an expert for the purposes of establishing compliance or detecting potential hazards.
4. (d)
   The defendants had no actual knowledge or notice of any problem with the stones or pathway at the commencement of the tenancy.  They had lived in the house for many years without any concern in that regard.

112. [112]
     Mr Hutton testified that he laid the stepping stones in January 2004.^[131]He acknowledged that he was motivated to embed the stones to create a safe pathway through the area which ‘had a slight depression in it and it would pool a little bit with water, get a bit wet.’^[132]

113. [113]
     Mr Hutton undertook the work as a homeowner with no qualifications in building or construction or anything of that nature, and had no familiarity with the academic area of ergonomics. He also had no knowledge of, or any regard to, the Building Code of Australia or any associated Australian Standards.^[133]He explained that he installed the stones by using a shovel to dig a couple of holes, then before laying the stones in them.  He said ‘tried to make sure they were in good positions and as flat as possible’.^[134]He testified how he used his own judgement and assessment about the layout of the stones.  He explained that he took a few steps back and forth and ‘taking into consideration my height and the size of my steps and, you know, trying to reduce that a bit further to allow for, you know, like my partner and woman [sic] who are a bit shorter’.^[135]In cross-examination, Mr Hutton emphasised that he placed the two stones where he thought that was a natural position for them.^[136]He also explained that he used his shoes to determine that the stones were ‘good, grippy stones to use and would not cause an issue’.^[137]

114. [114]
     Similarly, Mr Hutton also testified about using the stones “all the time” daily,^[138]and recalled periods of “several big cyclones”.^[139]He did not have or see others have trouble, or receive any complaints about with slipperiness on the stones.^[140]He described the stones at the front as “really good” and emphasised that he’d never had an issue with their slipperiness.^[141] 

115. [115]
     Ms Brophy testified that she never experienced any awkwardness,^[142]or difficulty with the stones being slippery when she lived in the house, including wet periods.^[143]She described the house as a social place with constant drop-ins and so forth.^[144]She never saw, or heard complaints from, others about the steps or the stones.^[145]Similarly, a close friend and visitor of the defendants, Ms Drinkwater, did not recall any awkward, or unnatural movement.^[146] 

116. [116]
     In January 2009, after the defendants moved out of the house, they received no complaint concerning the stones from the tenants who occupied the house until December 2009.^[147]This is consistent with the plaintiff’s testimony to the effect that she had no apparent difficulty with the reach to the stones from her occupation starting on 16 January 2010.^[148]

117. [117]
     In all the circumstances, I think the defendants took reasonable steps to ascertain and satisfy themselves that at the start of the tenancy the premises were fit for the tenant to live in, and/or in good repair in wet conditions.

118. [118]
     Having reached that conclusion, it was not necessary for the defendants to use a number of 400mm x 400mm concrete pavers, or build a concrete or other path, between the bottom of the front stairs and the timber steps across the grassed area to the driveway.

119. [119]
     For completeness, I will consider these alternative construction methods.

120. [120]
     Mr Waddell opined:^[149]

“7.19 By placing the stone in the landing at the foot of the stairs, the landing was made less safe, and less compliant with the BCA (it was already non-compliant, but adding the stepping stone made it worse).

7.20 The Defendants could have prevented exposing Mrs Hong to risks such as this by constructing at the foot of the stairs a landing which complied with the BCA. This could have comprised six pavers arranged in two rows of three, each paver measuring 40cm square. This would have been enough to span the width of the stairs, and the required depth of the landing. Had this been done, even simply embedding the pavers in the existing surface, the risk to which Mrs Hong was exposed would have been significantly reduced, possibly to the point where the incident would not have occurred.

7.21 Had Mr Hutton done this work himself (a task of which he appears to have been capable, since it was reportedly he who placed the slate stepping stones), the job could have been completed for less than $100 (based on paver prices in Cairns, as listed on various internet sites, although those seen do not specify the level of slip resistance). I note that Mr Hutton said that he did not need to place sand under the stones.

7.22 Ideally, pavers would have been laid at the required height, and at a slope of not less than 1 in 50, thus fully satisfying the requirements of the BCA. This, however, would then have required additional works to tie in the raised landing edge with the rest of the path to the driveway.

7.23 Ensuring that the stones remained clear of fungal and other growth would also have reduced the risk to which Mrs Hong was exposed, assuming that this was a factor which contributed to the incident.”

121. [121]
     Dr Grigg rejected the notion that concrete pavers were preferable to the stones, and noted that some concrete pavers are slippery.^[150]Indeed, Mr Hutton made the observation that there were pavers at the back of the house and that these were “probably the first thing to go mouldy and get slippery on the property…”. 

122. [122]
     Dr Grigg unsurprisingly also accepted that there were a number of possible ways to make changes to the pathway,^[151]one of which would be to use a few more stepping stones,^[152]but suggested that the extent of any improvement would be a pretty subjective thing to assess.^[153]This exchange occurred with cross-examining counsel:^[154]

“What I’m suggesting to you, that two just wasn’t enough.  What he needed to do was to have several? --- Well, if you – if you had several – if you want you can reduce the stepping that – the stride length you need to use.

Yeah? --- And you can have it so that you can step down directly onto the stone in front of the step.  You can do all those things, for sure.

 By just using a few more of the stepping stones? --- Yes.

Yeah.  And that significantly reduces the risk of slipping and falling? --- Well, that – that’s something I’m not too sure about: how significant the difference would be. I accept that there would be an – it would be an improvement, but that’s a matter – to what extent it is an improvement, is a pretty subjective thing to assess.

But that’s something that, I suggest to you, doesn’t require the expertise of an engineer like yourself.  It’s a matter that the ordinary lay person could do when putting stepping stones in the landing area at the base of the stairs? --- Yes. It – it – I’m not quite sure what you’re asking me in – in the sense of are you asking me to say how I would design it? 

No. No, I’m just saying – what I’m suggesting to you, that you don’t need special expertise as an engineer to realise that you should put down more of the stepping stones in the landing area than just the two that the defendant did.  You should put down several? --- Yes, I would probably recommend more than were there.”

123. [123]
     In re-examination Mr Grigg gave the following clarification about this:^[155]

“You were asked a question just then about whether a lay person would appreciate the desirability of the effect of putting in stones at the immediate bottom of the stairs and you said that you would recommend they put those stones there.  Were you talking about yourself as an expert in that regard? --- Was I talking about ---

Were you drawing upon your own expertise in that evidence? --- Probably more of a – lay person’s opinion in most respects.”

124. [124]
     It is obvious that the defendants prior to commencement of the lease could have employed superior alternative construction methods instead of the stepping stone method. But this should also not distract from the applicable test. It is not to determine whether or not there was a better way to set up stepping stones. The critical issue in whether the defendants took reasonable steps to ascertain and satisfy themselves that at the start of the tenancy the premises were fit for the tenant to live in, and/or in good repair in wet conditions.

125. [125]
     Having concluded that the defendants did so, there is no need to further hypothesise about alternative construction methods. Suffice it to say that I find that the defendants took reasonable steps to ascertain and satisfy themselves that at the start of the tenancy the premises were fit for the tenant to live in, and/or in good repair in wet conditions, and did not breach sub-clauses 25(1)(b) &(c) of the lease.

Did the defendants fail to maintain the premises in a state fit to live in, or in good repair during the lease, in breach of sub-clauses 25(2)(a) &(b) of the lease?

126. [126]
     This issue necessitates consideration of:

1. Whether the premises were fit for the tenant to live in, and in good repair during the tenancy? 

2. If not, did the defendants have notice of a risk of injury to the tenant?

3. Did they then take reasonable steps to:

1. (a)
   Maintain the premises in a way that the premises remained fit for the tenant to live in during the tenancy?

2. (b)
   Maintain the premises in good repair during the tenancy?

127. [127]
     The plaintiff relies on the same alleged failures of the defendants’ (set out above) as continuing after the start and during her tenancy in breach of sub-clauses 25(2)(a) & (b) of the lease.^[156]

128. [128]
     As I have determined that the defendants have not breached sub-clauses 25(1) (b) & (c) of the lease. For reasons already set out above, I am not satisfied that the stepping stones rendered the premises unfit for a tenant to live in, or not in good repair at the start of the tenancy. For those same reason reasons, I am not satisfied that this materially changed before the plaintiff’s slip and fall.

129. [129]
     There was no evident change to the layout of the stones in terms of the topography of the area being an uneven and sloped surface; as well as their horizontal, vertical and angular arrangement and spacing in relation to the stairs and each other. I have already discussed the process used by the Mr Hutton in setting the stones, and the absence of any apparent difficulty by the start of the lease.

130. [130]
     The stones were clean in January 2010 at the start of the tenancy, and there is no evidence they became had become mossy, mouldy or slimy or were prone to any such build up by the time of the plaintiff’s slip and fall. Mr Hutton distinguished the particular mould problem with the pavers in another outdoor area at the rear of the premises, but thought the stones needed cleaning “at least once a year”.^[157]Ms Brophy testified that the stones were cleaned every 12 months, which she believed was sufficient.  Further, as to cleanliness the plaintiff had an obligation to keep the premises clean, having regard to their condition at the start of the tenancy in accordance with clause 26 of the lease.

131. [131]
     Even if I’m wrong in this conclusion, liability here turns to whether the defendants had notice of a risk to injury to the tenant.

132. [132]
     That is so, because there is a clear distinction between making premises fit prior to the commencement of the lease and maintaining those premises after the commencement of the lease. As usually, the lessor no longer has control over the premises, and therefore cannot ascertain the existence of any defects. As discussed above, the distinction is aptly put by Gaudron J in Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 359, where she said:

“Once a tenancy commences, there is an important change in the features of the relationship which bear on the question of the landlord's liability in negligence.  Generally speaking, it is the tenant who is then in a position to ascertain and control the state of the premises.  And again generally speaking, if defects develop during the tenancy, the landlord will become aware of them only if informed of their existence by the tenant or by members of the tenant's household.”

133. [133]
     In this context the defendants further contend that they had no means of constructive or actual notice of any problems before or after the start of the lease. Therefore, the defendant’s maintain that they took reasonable steps to maintain the premises for the plaintiff to live in, and in good repair during the tenancy.^[158]

134. [134]
     The plaintiff was herself an experienced real estate agent of 'twenty years on and off”.^[159]She is 173 centimetres tall, with no evident difficulties in movement or gait.

135. [135]
     She moved into the house with her son Troy Marr on 16 January 2010.^[160]For about two and a half months before the incident on 5 April 2010 she used the front steps on many occasions,^[161]but it is likely she did not use them during  the 6 rainy days immediately before the incident.^[162]She agreed in cross-examination that there was no obvious problem,^[163]nor did she identify any problem with the stones, either in terms of their placement or their surface, prior to the fall.^[164]

136. [136]
     Neither the plaintiff nor anyone else experienced or identified any apparent difficulty with the stepping stone pathway after the commencement of the tenancy prior to the fall. Neither defendants nor their agent received any complaints from the plaintiff (or son) during her occupation, or any subsequent tenants before the sale of the house in June 2015.^[165]When giving evidence, the plaintiff agreed that there was no obvious problem with the stone prior to the fall,^[166]and that she did not identify any problem with the stones, either in terms of their placement or their surface, prior to the fall, despite having raised a considerable number of other complaints.^[167]

137. [137]
     On 21 January 2010, the plaintiff completed an Entry Inspection Report.^[168]She identified a number of issues with the house, but did not make any reference to a problem with the paving stones at the front.^[169]

138. [138]
     From late March 2010 the plaintiff and her son started to fall behind in their rent.^[170]On 24 March 2010 she sent an email to the agent, Barton, raising complaints about numerous matters, but made no mention of anything to do with the steps or stones.^[171]The defendants fixed all the matters raised.^[172]

139. [139]
     On 12 April 2010 the plaintiff rang the property agents to advise that a palm tree in the backyard had fallen on the clothes line. She also advised that she had slipped out the front and broken her wrist.^[173]She did not identify the stones as having caused the fall, or even mention them as the location of the fall. It is submitted that in the context of a rental dispute, where the plaintiff had already raised complaints as trifling as there being only 1 tray for the oven, had she perceived the steps as intrinsically dangerous, or as having caused her fall, she would certainly have raised this proposition by this stage.

140. [140]
     On 19 or 20 April 2010 the property managers delivered a Notice to Remedy Breach for failure to pay rent to the plaintiff and her son.^[174]In the context of a deteriorating relationship, based on the plaintiff failing to pay her rent, she sent an email to the property agent on 22 April 2010 which contains the first written reference to her injury: “typing one-handed due to broken wrist”.^[175]The email goes on to inquire about her two weeks of compensation (relating to the initial problem with the sewerage), the presence of the fallen tree, the griller, the lights, and her desire for a blind in the bathroom.  Yet again, despite the injury having occurred 17 days before, there was no reference by the plaintiff to any problem with the steps or stone that had, by this stage, allegedly caused the plaintiff injury.^[176]

141. [141]
     The relationship between the plaintiff and the Defendants, via the agent, further deteriorated. On 29 April 2010 the plaintiff wrote to Barton in an email again asserting a purported right to compensation, related to “the sewerage leaking everywhere and having to use public toilets and shower”.  She said that she would press the claim for compensation on this basis “and furthermore demanded” it.^[177]  Yet again the plaintiff made no complaint about the stones.^[178]

142. [142]
     The plaintiff co-signed a notice to remedy breach on 25 May 2010.^[179]Again, despite a list of concerns about the house, there was no mention of the stones at the front.^[180]This form was completed well over a month after the fall. It is submitted that it is inconceivable that if the plaintiff or her son had identified the stone as being causally related to the occurrence of the fall on 5 April 2010 they would not have included it in their list of grievances.  The only cogent explanation is that neither of them considered the stone to be particularly noteworthy or to represent an unreasonable risk of injury, notwithstanding the fall.

143. [143]
     On 22 May 2010 the agents issued a Notice to Leave to the plaintiff.^[181]QCAT terminated the tenancy effective from 7 July 2010.^[182]The plaintiff vacated the premises on 12 July 2010.^[183]

144. [144]
     The first occasion that the plaintiff identified any issue with the stones was by way of a facsimile to the agents on 14 July 2010. Prior to the facsimile being sent the real estate agent, Mr Barton, delivered an exit report to the plaintiff at her business premises, which the report identified outstanding issues.^[184]In her facsimile the plaintiff stated that: “… I fell at the bottom of the stairs due to the slippery stones so strategically placed there and broke my wrist”.  The context of this email was yet another broad criticism of the property overall: “also I was electrocuted by the boggy antennae set-up for the TV when I tried to adjust it.  I was thrown across the room onto my back.  Not to mention the sewerage had overflowed out the back and we couldn’t use the bathroom for days.  Is that a good rental?  I don’t think so.  I did mention to you that I feel we are entitled to compensation for these things.  But apparently the owner chose not to issue any compensation”. The plaintiff agreed that this was the first time that she made any reference in correspondence to a slippery stone.^[185]The facsimile concluded “I again say that the amount owing to her is for compensation to the above details here and also for the breach that Troy issued to you”^[186]making it clear, it is submitted, that the issues were being raised only in the context of the plaintiff owing money on account of arrears of rental and/or in relation to the condition of the Premises when the plaintiff vacated the Premises, and in an attempt by the plaintiff to justify not making any further payment to the Defendants in relation to those issues.

145. [145]
     It seems to me the plaintiff had no apparent difficulty with the layout of the stones throughout her occupation starting on 16 January 2010.^[187]She made no complaint about the stones’ cleanliness, or build up of moss, mould or slime at any time during the tenancy before the incident.^[188]And the first time that the plaintiff communicated any issue with the stones was too late, well after her slip and fall, at the conclusion of her tenancy on 14 July 2010 in response to an exit report at the conclusion of the lease. 

146. [146]
     Having regard to all the circumstances, I am not satisfied the defendants had any actual or constructive notice of a risk of injury to the plaintiff during the period of her tenancy. There was no reason, or necessity, for the defendants to take any further steps towards additionally maintaining the premises since it remained fit for the tenant to live in, and was in good repair during the tenancy.

Are the defendant’s liable to pay the plaintiff damages?

147. [147]
     The parties agree that if the defendants are found liable, damages (including interest to the date of this judgment) should be assessed at $125,000.  Given my concision about liability, the defendant is not liable for damages and there is nothing more to add.

Conclusion

148. [148]
     For these, reasons, I give judgment to the defendant against the plaintiff.

149. [149]
     Unless either party applies for a different costs order within 14 days of this judgment, I will also order that the plaintiff will pay the defendant’s costs of the proceeding (including reserved costs) to be assessed on the standard basis.

Judge DP Morzone QC