Sheehy v Hobbs[2012] QSC 333

SUPREME COURT OF QUEENSLAND

1. McMeekin J: Shortly after midnight on 14 March 2007 the plaintiff, Ms Catriona Sheehy, fell down a flight of stairs in the unit where she then resided.  Tragically she was rendered a partial paraplegic as a result of injuries sustained in the fall.  She has brought proceedings claiming damages against the owners of the unit, Mr and Mrs Hobbs who were her then landlords, alleging a breach of the duties owed to her pursuant to the Residential Tenancies Act 1994 (Qld), under her tenancy agreement, and at common law. 

The Issues

2. The parties have agreed that the question of liability is to be determined separately from the assessment of damages.

3. As will be seen the essential question to be resolved is whether there was imposed on the landlords a duty to make alterations to the stairway that would have reduced the risk of injury to the users of the stairs. That in turn depends on what is reasonable to expect a landlord to do.

4. There were few contested issues of fact. One related to the state of carpet on the stairs. Another concerned the making of complaints about the stairs. A third concerned the width of the goings on the stairs. In determining these issues I am satisfied that all witnesses were endeavouring to tell the truth as they saw it.

5. While the defendants pleaded contributory negligence on the ground of intoxication that plea was appropriately abandoned in the course of addresses. I am satisfied that the occurrence of the incident was not attributable to the consumption of alcohol.

6. Contributory negligence otherwise remained in issue.

7. The plaintiff called an engineer Mr Kahler with great experience and expertise in ergonomic and safety matters. The defendants called evidence from a Mr Casey regarding the slip resistance characteristics of carpet and a Mr Catchpole who is a building inspector.

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^[1] save to the extent any statute or contractual term requires adherence to such Codes or Standards.

The Units

9. It was common ground that the unit in question was one of 56 units in the complex, construction of which was completed in May 1995. At the time the applicable building code was the Building Code of Australia 1990. The building was a class 1 building within the meaning of that Code. The Building Code of Australia was given statutory force within Queensland by the Standard Building Law 1991^[2] authorized under the Building Act 1975.  Subject to one matter it was common ground that the stairway involved in the incident substantially complied with the minimum requirements of the Building Code.

The Fall

10. On 13 March 2007 the plaintiff arrived home from work at about 5:30pm, showered, changed, had a glass of wine and then an evening meal with her son Michael. She sat down to watch television and fell asleep. She woke up, watched television for a while and then noticed it was just past midnight. The 14^th of March 2007 was her 51^st birthday.  The plaintiff went to the fridge, poured herself a glass of wine and toasted herself a happy birthday.  Her recollection is that she drank about half of what was in the glass and then threw the balance into the sink and went upstairs to her bedroom.

11. The fall occurred on a set of internal stairs leading from the lounge/kitchen area on the ground floor to the upstairs bedroom area of the unit. There was a landing part way up the stairs described as a quarter landing. From there to the upstairs floor were six steps.

12. At the time the plaintiff ascended the stairs there was an upstairs light on which threw some light onto the stairwell. The plaintiff arrived at the top of the stairs, turned towards her bedroom and then realized that she had forgotten to bring with her a bottle of water that she normally took with her when going to bed. She turned to descend the stairs.

13. She stepped down with her right foot onto the first step. Her left foot was still on the top of the landing. Her right foot slipped. Her left hand was then resting on the half wall next to the stairwell. It was too broad to hang onto. Her recollection was that she tried to correct herself, overcorrected somehow, and fell down the stairs. She ended up on the quarter landing at the bottom of the short flight of stairs.

14. The stairs were carpeted at the time of the fall. While there was no precise evidence it would seem probable that the carpet dated from the time of the original construction of the unit complex in about 1995. The evidence of the plaintiff and her witnesses was that the carpet had become worn towards the centre of the stairs through usual wear and tear.

The Breaches of Duty Alleged

15. The breaches of duty alleged against the landlords are set out in paragraph 12 of the Amended Statement of Claim and are as follows:

1. The stairs where the plaintiff slipped:

1. were at the design limits for the appropriate Australian Standard and building regulations for stairs;      

2. were in an unsafe condition;

3. were not fitted with any or any adequate hand rails;

4. had not been repaired or adequately repaired despite various complaints by tenants;

5. were dangerous because they were:

A.steep;

B.had low luminescence levels;

C.had no handrails;

D.had tread noses with large radii;

E.had no edge delineation because of an absence of     appropriate tread nosing to delineate the edge of  step and  provide grip;

F.inappropriate levels of grip given the stairs were carpeted, had large radii and contained no tread nosing;

2. The landlords:

1. Failed to provide the plaintiffs with any adequate warning as to the dangers of descending the stairs when they ought to have known the stairs were in an unsafe condition;

2. Failed to provide adequate lighting above the staircase;

3. Breached the Tenancy Agreement by not providing tenants with premises fit to live in;

4. Breached the Tenancy Agreement by not providing tenants with premises in good repair;

5. Breached the Tenancy Agreement by not maintaining the premises in a way so that the premises were fit for the tenants to live in or in good repair;

6. Breached the Act by failing to provide the tenants with premises which were fit to live in or in good repair;

7. Breached the Act by failing to maintain the premises so the premises were fit for the tenants to live in and in good repair;

8. Failed to ensure the stairs were safe by ameliorating the dangers listed in paragraph (a) above. 

The State of the Carpet

16. One of the few contested issues of fact concerned the carpet on the stairs. The carpet was potentially relevant in two ways. First, the plaintiff contended that carpet, and particularly carpet bearing the wear of 12 years of occupation of the unit, was less likely to provide a non slip surface than other surfaces. Second, the plaintiff contended that the carpet altered the nosing characteristics of the stair treads.

17. I accept both contentions.

18. Having said that, there was no evidence that the carpet had worn through, or that it was particularly slippery.

19. The carpet in place at the time of the accident has since been disposed of and was not tested beforehand.

20. Slip resistant measurements were carried out by Mr Casey on carpet in a neighbouring unit which appeared to be of a similar style and age to the carpet that had been in the subject unit.

21. The average static and estimated dynamic coefficients of friction that Mr Casey obtained for the carpet in the neighbouring unit were 0.57 and 0.55 respectively.

22. The plaintiff contended that the testing techniques used by Mr Casey were not appropriate. The criticisms that Mr Kahler makes of the testing performed by Mr Casey and which Mr Kahler set out in his report of 2 March 2012^[3] seem to me to be cogent.  It was not shown that the method of testing adopted by Mr Casey had any validity for carpet on a stairway. 

23. Nor was it shown that the coefficients of friction that he measured provide any useful information about the risk of slipping on a carpet on a stairway. Using testing appropriate for dry pedestrian horizontal surfaces, as Mr Casey did, does not assist greatly, or indeed at all, in offering guidance for the slip resistance of a carpet on a rounded nosing of a stairway.

24. In any case there are no published standards applicable to carpets to enable any reliable translation of the measurements performed by Mr Casey into some test of foreseeability of risk of harm from a slip. Mr Casey pointed to standards that suggest a coefficient of friction of less than 0.4 can present a high to very high contribution to the risk of slipping and coefficients above 0.4 can represent a moderate to very low contribution. But those standards have nothing to do with carpets on a stairway.

25. The British Standard that Mr Kahler refers to^[4] suggests that a coefficient of friction, appropriately measured, on stairways should desirably be not less than 0.7 and never less than 0.6.  This is said to be necessary on the nosing of stairs “in institutional buildings and stairs used by the public” and on “stairs and landings near entrance doors and other areas subject to wetting and those used by the elderly or incapacitated people.”^[5]

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.^[6] 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.

28. The relevant Building Code requirements^[7] were that the treads of stairs should have “a non-slip finish or a suitable non-skid strip near the edge of the nosing”. Mr Casey’s testing does not establish that the carpet on the stairs at the relevant time satisfied that requirement. However no evidence was led by the plaintiff that the carpet did not meet that description. Evidence that other forms of finish are superior to carpet in their slip resistance does not show that carpet is not “non-slip” within the meaning of the Code.

29. It is relevant to observe, as Mr Catchpole did, that it is standard practise throughout the building industry to carpet stairs in residential premises.

30. In the end the only relevance of the evidence about the carpet is Mr Kahler’s conclusion that “carpet is known to have lower slip resistance than commercial nosing strips”. The defendant led no evidence to detract from that statement. So I conclude that the floor surface on the treads of the stairs could have been made safer.

31. Mr Kahler did not argue that the carpet, by reason of its slip resistance characteristics or lack thereof, contributed greatly to the occurrence of the slip and fall involving the plaintiff. Rather it was one of the matrix of factors that he opined made the risk of slipping on the stairs “high”.

Complaints of Defects

32. Another area of dispute concerned whether any complaint had been made about the stairs before the subject incident.

33. Despite the pleading in paragraph 12(a)(iv) of the Amended Statement of Claim (reflected by me in paragraph [15](a)(iv) above) there was no evidence of “various complaints by tenants”.

34. The highest the plaintiff’s case reached was the reference by the plaintiff’s daughter, Ms McGinty, to a conversation with the then manager of the unit complex, Mr Cliff Musgrave, shortly before Christmas 2006 about a slip that she had had on the stairs. Ms McGinty said that she had slipped over a couple of times on the stairs. While it might be doubted that Ms McGinty would be likely to recall the precise terms of her conversation with Mr Musgrave given that she was first asked to recall it many years later, her present recollection of the nature of the falls suggests that nothing in the conversation would have alerted Mr Musgrave to a complaint about the state of the stairs.

35. Ms McGinty said that her slips occurred at the bottom of the stairwell each time, and so on a different part of the stairway to the section where the plaintiff suffered her fall. When asked if she could be more particular about what type of slip she had suffered Ms McGinty replied that “it was more just to do with the way I put my foot on, like I didn’t judge the footsteps … like, whether it be too far forward or too far back”.^[8]  Ms McGinty said that she had mentioned the matter to the manager.  She said that she did so “only like in casually speaking and joking about it” and “only partially like lightly mentioned”.^[9]  She explained that she spoke to Mr Musgrave at a time when he was fixing a light in the unit and when asked what she told him about the incident she replied: “just basically that I’d, liked, slipped over, and it was in a jokingly sort of manner.  I didn’t think I had to report it or I didn’t think it was a big deal”.^[10] 

36. Other members of the plaintiff’s family reported that they had slipped on the stairs. None claimed to have mentioned the matter either to the defendants or to the managing agent of the units. None claimed to have thought that the problem lay with the stairs.

37. Plainly enough Ms McGinty’s evidence does not amount to a complaint about the standard or condition of the stairs.

38. Given the manner in which Ms McGinty says the subject was approached by her it is hardly surprising that Mr Musgrave says he has no recollection of any such conversation. There was an objection taken to the receipt of the evidence of the conversation with Mr Musgrave on the ground that it was not shown that he was the agent of the landlords for the purpose of receiving any complaint. Given my conclusions I do not need to decide the issue although I cannot distinguish this case from Austin v Bonney^[11] where the managing agent there was held to be so authorised.

39. The case then is to be approached on the basis that there had been no report of any defect in the stairs, or of any injury being sustained on the stairs during the period of the tenancy by the plaintiff and her family. Nor was there any evidence of any other tenant ever complaining of the stairs or of injury being suffered on the stairs.

40. That lack of complaint does not show that the stairs were safe, or as safe as they ought to have been. Common sense suggests that a history of reports of injury or complaints of slipping would inform any reasonable landlord that there might be a problem requiring attention. It is not so clear that a lack of such a history has the converse effect although a number of cases have suggested that a lack of history of injury is relevant to the assessment of the potential for harm and so the reasonable landlord’s response to the risk presented.^[12] 

41. The facts here show the problem – Ms McGinty only jokingly reported one of her falls where she did suffer some injury and the family made no report at all of the fall which rendered Ms Sheehy paraplegic.

42. Mr Kahler pointed out that people tend not to report incidents such as slips and falls on stairs as they do not appreciate the significance of their own experience – in other words they attribute the problem to their own error rather than appreciating the role played or potentially played by the configuration of the stairs. And one can expect that only where serious injury results will there be any such report. Mr Kahler’s reference to the admission rate in Victorian hospitals for stair falls in 2000-2003 shows that a lack of report of falls in a unit complex such as that here, even over a long period, does not really provide much in the way of relevant information as to the risk presented and whether the risk the stairs present falls above or below the average.^[13] Absent some determined effort to gather information precisely directed to slips on stairs then there is very likely to be an absence of reports.

43. Here the evidence shows that the Sheehy family had experienced a number of slips and falls on the stairs over a 12 month period. That tends to confirm Mr Kahler’s points regarding the lack of significance of an absence of reporting and that the stairs presented a reasonably high risk of users slipping or falling.

44. The experience of other tenants in this unit or other units is unknown as no evidence was led. That however is a problem for the plaintiff not the defendant. The significance here of the lack of complaint or report of injury is that it is not shown that the landlords had any actual knowledge of a problem with the stairs.

45. I interpolate that it seems safe to assume that any such report would not have prompted much action – Ms Sheehy’s fall and consequent paraplegia, and the receipt of a report of an expert engineer pointing out the several ways in which the stairs could have been made safer does not seem to have resulted in the landlords taking any action to change the stairs.

Compliance with the Building Code

46. The defendant’s case was that the stairs met the requirements of the Building Code when constructed, at the time of the commencement of the tenancy, and at the time of the accident. Mr Catchpole’s opinion effectively was that the stairs met the minimum standards laid down in the Building Code of Australia. The defendants submitted that that fact, combined with the absence of any notice, actual or constructive, of any problem with the stairs, was sufficient to discharge the duties owed by the defendants.

47. Mr Kahler’s opinion, and it was not contested, was that the stairway was built to the limit of the allowable design under the Building Code. That meant that the stairs were steep. The only way in which it was suggested that the stairs fell short of the requirements of the Building Code was in the width of the treads, or the goings, and that was only minimally so.

48. The Building Code requires that the minimum going of a tread in a private stairway should be 240mm. Mr Kahler’s measurements indicated an average going of 237mm. The going of the first tread, upon which Ms Sheehy fell, he measured at 235mm.^[14]   Mr Catchpole carried out the same measurement.  He has numbered the goings in reverse order to that of Mr Kahler.  His measurement shows the going of the first tread (as defined by Mr Kahler) at 242mm.  So Mr Catchpole has the tread as just complying and Mr Kahler as just failing to comply.

49. Each of the witnesses thought that the other’s measurement differed from theirs because of the way in which they carried out their measurements. Mr Catchpole attempted to determine the going of the timber stairway beneath the carpet. Mr Kahler measured the carpeted stairway.

50. Whatever the requirements of the Building Code might be it seems evident that when one considers the safety of the stairway it is the surface that is presented to the user that is crucial for the purposes of determining the risk presented by the stairs. If a carpet has the effect of reducing the going of the stair in question then that measurement must be the relevant one. Hence Mr Kahler’s approach is to be preferred.

51. Mr Kahler explained the significance of the going dimensions:

“It can be observed that the going dimension, as measured, is close to but slightly less than the minimum allowable.  As a consequence, the stairway is quite steep and the goings are short.  These are factors known to increase the likelihood of pedestrian falls.  As the going is decreased, it becomes more difficult to place a substantial part of the foot on the step, resulting in increased opportunity for an overstep during descent.  This interacts with a large nose radius and a false visual edge.”^[15]

52. While the stairs very nearly complied with the Building Code the going dimensions fell well short of ideal. Mr Kahler referred to AS 4226 -“Guidelines for Safe Housing Design” as providing what he called “good practice design guards”. It provides:

“11.7.1 dimensions.  Stair and step treads should be at least 300mm deep, 330mm is preferred, to take the full length of most shoes.  Tread should not be shorter than 275mm, measured horizontally from nosing to nosing.”

The Stairs Could have Been Made Safer

53. I conclude then that the stairs were steep with relatively short goings. It had other features which Mr Kahler described as “undesirable” which when combined with the steepness and relatively short goings led to an increased risk of a slip and fall on the stairs. Those additional undesirable features are not addressed in the Building Code of Australia but were discussed in other Australian Standards, building guidance documents and scientific literature and were:

1. rounded nosings with a lack of edge delineation;

2. less than optimum slip resistance of the stair nosings;

3. no effective handrail; and

4. lack of illumination.^[16] 

54. The essential point that Mr Kahler makes is in the following passage^[17]:

“Thus slippage of the foot upon contact involves interaction of the leading edge of the step, and the front portion of the footwear.

Highly rounded and poorly defined nosings, as exist on this carpeted stairway, can present a number of challenges to stair users, including, but not limited to, a lack of quality visual information about the location and characteristics of the edges of stair treads, and also by presenting an incline which increased the underfoot friction requirements. 

If the toe of the shoe is placed on a large radius stair nosing, not only is the available underfoot friction reduced ( i.e. similar to stepping onto a steep ramp in comparison to a level surface) but the tactile cue is reduced.  The stair user is less likely to feel the true edge of the stair tread to assist with visual perception in judging gait required for the particular stairway.

The nosing should be shaped such that the visual cue is a true indication of the edge of the step, rather than the promotion of a false edge due to a large nosing radius……the true edge of the step tread is further rearward than what would have been perceived due to the larger radius of curvature of the nosing”.

55. To paraphrase Mr Kahler’s report the safety of a set of stairs depends upon the interaction of various factors. Those factors are not restricted to friction alone. They include the radius of the nosing of the tread of the stairs and the sharpness of delineation of the edge of the tread of the stairs. His opinion was that the nosings of the stairs in question did not give a true indication of the edge of the step but rather promoted a false edge leading a person descending the stairs to place their foot too far forward on the step. This lack of visual cue as to the true edge of the step and the tendency to place the foot too far forward was aggravated by the short going of the tread of the step and the relatively poor lighting that existed in the stairwell. The available underfoot friction was greatly reduced when the foot was placed too close to the nose of the tread and the absence of any effective handrail reduced the capacity of someone using the stairs to recover their balance if a slip occurred.

56. Mr Kahler’s point was that the Building Code of Australia did not deal with the crucial interaction of factors which inform a proper assessment of the safety of a set of stairs. Other standards and guidelines do address that issue more completely and have been long available.

57. The defendant did not lead any evidence to demonstrate that Mr Kahler’s opinion that this stairway could have been made safer was wrong. Mr Kahler’s opinion that “the products to achieve sharper tread radii, or high friction and visual delineation have been available for decades” ^[18] was uncontested.

58. I see no reason not to accept these opinions. These stairs presented an increased risk of slipping and falling than they would have if these undesirable features were absent.

59. Mr Kahler was critical too of the lighting in the area. He measured the light levels as being in the range of 15 to 33 lux. He pointed out that the relevant Australian Standard^[19] recommended that the lighting levels of a stair tread should be at least 100 lux.  Another Australian Standard^[20] is referenced in the Building Code of Australia and specifies a minimum maintenance luminance of 80 lux for internal stairways.  He points out that these standards are well below recommended levels in other studies and standards.^[21]  The light levels recorded by Mr Kahler were highest at the top of the stairway, consistently with the source of illumination being the overhead lighting on the upper landing.  The light level was recorded at 30 and 33 lux on the landing and first tread.^[22]

60. These measurements were not contested nor was it suggested that any different standards ought to apply to this residence.

61. Nor was it an issue that there was no effective handrail. As Mr Kahler pointed out the edge to the stairs, which Mr Collins, who appeared for the defendant, described as a “half wall”, was approximately 125mm wide and so not appropriate for a person to grip firmly. Mr Kahler suggested that a 40mm diameter cylindrical handrail would be an effective shape to permit a person to grasp it firmly preferable with a power grip and so maximize the ability to prevent a fall.^[23]  Mr Kahler pointed out that Australian Standards that he referred to recommend that 1 or 2 handrails be fitted to all stairways and that studies have demonstrated that the risk of falls on stairs “increased fourfold when there was nothing to hold onto on at least one side.”^[24]

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.

64. The application of the oft repeated principles explained by Mason J in Wyong Shire Council v Shirt^[25] suggest that the plaintiff is well down the path to a judgment in her favour. There is however one remaining hurdle and that is whether the law required that a landlord take these steps.

65. I turn then to a consideration of the duties owed by a landlord to a tenant.

The Contractual and Statutory Duties Owed

66. The plaintiff’s occupation of the premises was pursuant to a written Tenancy Agreement which was in a standard form with certain additional terms which are not here relevant.^[26]  She was a party to that agreement. The tenancy agreement was entered into on 20 June 2006 and so about 9 months before the subject incident. A rent of $300 per week was payable.

67. The standard terms of the General Tenancy Agreement include clause 25 which provided:

“Lessor’s obligations – s 103:

1. At the start of the tenancy, the lessor must ensure –

1. the premises are clean and fit for the tenant to live in and are in good repair:
2. the lessor is not in breach of a law dealing with issues about the health or safety of persons using or entering the premises.

2. While the tenancy continues, the lessor must –

1. maintain the premises in good repair and in a way that the premises remain fit for the tenant to live in;

2. ensure any law dealing with issues about the health or safety of persons using or entering the premises is complied with;

3. keep any common area included in the premises clean .

…”.

68. Clause 25 mirrors the obligations imposed by s 103 of the Residential Tenancies Act 1994.  Section 103 provides:

“Lessor’s obligations generally

…

(2) At the start of the tenancy, the lessor must ensure--

(a) the premises and inclusions are clean; and

(b) the premises are fit for the tenant to live in; and

(c) the premises and inclusions are in good repair; and

(d) the lessor is not in breach of a law dealing with issues about the health or safety of persons using or entering the premises.

(3) While the tenancy continues, the lessor--

(a) must maintain the premises in a way that the premises remain fit for the tenant to live in; and

(b) must maintain the premises and inclusions in good repair; and

(c) must ensure any law dealing with issues about the health or safety of persons using or entering the premises is complied with; and

(d) if the premises include a common area--must keep the area clean.

…”

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 (Gration v C Gillan Investments Pty Ltd [2005] 2 Qd R 267 per Williams JA at p271 [8]; and see Muir J at pp279-280 [53]–[57]; Wilson J at pp286-287 [86]-[89]). That statement was made in the context of the obligations in cl 25(1)(a)  and s 103(2).

70. The judgments in Gration proceeded on the basis that the obligations imposed on the landlord by s 103(2) of the Act were “no less onerous than the obligation in tort imposed by the common law of Australia on the landlord at the start of the tenancy” (per Williams JA at p272 [14]; and see Muir J at p280 [55]). It will be necessary in due course to consider the obligations under the general law. Before doing so I will deal with some preliminary points that were not in issue.

Breach of the Contractual and Statutory Duties

71. It is quite evident that the defendants took their obligations as landlords seriously. There were inspections by the managing agent at the conclusion and start of each tenancy and they themselves inspected the premises annually. They kept records. The managers carried out inspections from time to time. As previously mentioned there is no evidence that any previous tenant had identified any problem with the stairs.

72. There was no material change to the unit between the start of the tenancy and the subject incident. No evidence was led that the carpet’s condition had materially changed over that time. Thus the case is to be decided not on the basis that the landlords had actual notice of any problem with the stairs but on the basis that they ought to have appreciated that the premises, at the start of the tenancy, were not “fit for the tenant to live in” or not “in good repair” or that they were in breach “of a law dealing with issues about the health or safety of persons using or entering the premises”.

73. There is no evidence that the stairs were not in “good repair” (cl 25(1)(a) and s 103(2)) and nor was it shown that the defendants were in breach “of a law dealing with issues about the health or safety of persons using or entering the premises” (cl 25(1)(b) or s 103(2)(d)).

74. As to that last point, as I have found, the going of the first tread on which the plaintiff slipped was, because of the added carpet, minimally shorter than the requirement under the Building Code. It was not contended that that resulted in any breach of the contractual or statutory duty, nor that that feature alone, absent the other matters referred to by Mr Kahler, was causative of the slip.

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.

76. The remaining obligation then was to ensure that the premises were “fit for the tenant to live in.” It is the content of that duty which it is necessary to determine and consideration of the common law position will assist.

Jones v Bartlett

77. The leading case in Australia on the obligations owed by a landlord to an incoming tenant is the decision of the High Court in Jones v Bartlett (2000) 205 CLR 166.  Much of the reasoning in that case is applicable here.

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:^[27]

“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”^[28]

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.”^[29]

81. Gaudron J identified the duty as one “to take such care as is reasonable in the circumstances”^[30] and held that that duty required the landlord “to take reasonable care to put and keep premises in a safe state of repair.”^[31] 

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.”^[32]

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.”^[33]   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:^[34]

“The duty requires a landlord notto 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:^[35]

“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 dischargedif 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.

The Plaintiff’s Case and My Response

86. Mr Arnold, who appeared for the plaintiff, submitted that because of the commercial nature of the letting of the units within the complex it was incumbent on the defendants to have ensured that the steps were constructed to a higher standard than that provided for in the Building Code for a class 1 building. His point was that there was a significant turnover of tenants taking the unit complex as a whole. It was akin to a commercial enterprise. He pointed out that commercial premises have a different and more exacting standard, one more appropriate here.

87. There are several difficulties with that submission. One is that it makes the landlord’s duties depend on how successful the landlords of other units in the complex were in letting their premises. That is a factor that cannot be known before the event.

88. Another is that the risk presented by the unit in question does not vary by that measure - only one family at a time presumably would live in the subject unit. Why should the standard expected depend on a factor that does not affect the risk of injury?

89. A third difficulty is that the submission does not take into account why it is that public premises are usually subjected to a more rigorous standard. People coming to such premises are liable to be in greater numbers at any one time; there is the consequent prospect of unexpected interactions – bumps, jostling, difficulty looking down to see when crowded and the like; visitors have no pre-warning of the idiosyncrasies of the place; there is less ability for the occupier to control what visitors do when they come to their premises, the activities of some being likely to increase the risk of slipping or falling; and for those who have disabilities there is little or no capacity to adjust the risk for the disability – it is much easier for a visitor to a residence to be given such assistance as they might need. For these and like considerations there is a greater foreseeable risk of injury and so greater demands placed on the occupier.

90. A fourth difficulty is that similar arguments to those that the plaintiff mounts here – the need for a handrail and edge delineation strips - failed in relation to public premises in Wilkinson v Law Court Limited.^[36]

91. But fatally the submission runs directly counter to the decision in Gration and most clearly expressed in Jones by Gummow and Hayne JJ that “the Court should be slow to hold that the content of a common law duty rises above that which has been imposed by statute in various Australian jurisdictions”.^[37] Plainly the statutory duty is to comply with the applicable Building Code, that being the relevant “law dealing with issues about the health or safety of persons using or entering the premises” referred to in the statute. The Building Code required that the landlord meet the class 1 building requirements, not some other, more demanding, class.

92. I acknowledge that the plaintiff’s case here is stronger than that of the plaintiff in Jones. The glass door in Jones was not dangerous when used in the normal way. The stairs here, in a sense, were. To that extent the deficiencies in the stairs identified by Mr Kahler satisfies the test of what may be a defect suggested by Gummow and Hayne JJ in Jones: “The thread running through these cases is that a dangerous defect will, or may, cause injury to persons using the premises in an ordinary way.  They are defects in the sense that they are more than dangerous; they are dangerous in a way not expected by their normal use. … They will only be defective if they are dangerous when being used in a regular fashion and ordinarily would not be dangerous when so used.”^[38]

93. But that is a necessary, not a sufficient, condition to establish liability.

94. The major difficulty for the plaintiff is in 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^[39] 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”.^[40]

99. Another reason is cost. And the relevant cost is not restricted to the steps here in issue. As was pointed out by Gleeson CJ in Jones v Bartlett “implicit in the proposition that reasonable care required that there should have been an expert assessment is the idea that all features of the premises potentially capable of harming someone who came onto the premises, or, at least, the prospective tenants and members of their households, should have been the subject of expert assessment”.^[41] 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.

100. As mentioned the plurality in Jones v Bartlett did not agree on the precise formulation of the duty owed, but the plurality judgments at least stand for these propositions:

1. there is no duty on a landlord of residential premises to ensure that those premises are as safe for residential use as reasonable care and skill on the part of anyone could make them (Gleeson CJ at pp184-185 [57]; Gaudron J pp192-193 [90]-[92]; Gummow and Hayne JJ at p214-216 [171]-[173] and p221 [193]; Callinan J at p252 [289]);

2. 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 (Gleeson CJ at pp177-178 [22]-[26]; to an extent Gaudron J at p192 [88]; Gummow and Hayne JJ at p217 [178] and p220 [186]; Kirby J at pp140-141 [252]); and

3. there is no obligation to replace items which, although not defective, involve a foreseeable risk of injury simply because safer items are available (per Gleeson C J at p184 [56]; per Gaudron J at p192 [90]-[91] and [93]; per Gummow and Hayne JJ at p205 [137] and at p216 [173]); per Kirby J at p239 [249]; per Callinan J at p252 [289]).

101. It seems to me that the plaintiff’s case depends on one of three things - the adoption of the duty set out in (a), or an absence of any need to show knowledge or constructive knowledge of the “defect” mentioned in (b), or the imposition of the obligation mentioned in (c). In my view the reasoning in Jones precludes my finding in the plaintiff’s favour on any of those grounds.

102. I observe that where the courts have found a landlord to have breached the duties owed to a tenant, and there seem to have been very few such cases particularly in relation to falls on stairs, where the contractual and statutory duties have been as here, there invariably have been circumstances which have resulted in a finding that the landlord had actual or constructive notice of the risk that resulted in injury.

103. Hence in Austin v Bonney^[42] where there had been a prior report of a missing railing, and the presence of warped and loose treads but no evidence of notice in sufficient time to effect any change; in Gration there was a tread in the offending staircase that had previously required replacing and the ever present risk of wood rot in tropical North Queensland and so constructive notice and the plaintiff succeeded;^[43] in Gray v Queensland Housing Commission^[44] there was no such notice and the plaintiff failed; in Ridis v Proprietors of Strata Plan 10308^[45] where it was held that there was no breach of duty in failing to inspect premises for the purpose of discovering defects that were unknown and unsuspected; to like effect is the decision in Ahluwalia v Robinson^[46] where it was held that there was no duty to retain experts to look for latent defects; here the steps did not present as obvious a danger as in Sakoua v Williams^[47] yet the plaintiff failed there in the context of very similar duties owed.

Conclusion

104. The question to be decided is whether the presence of stairs that could have been made safer in the manner suggested by Mr Kahler rendered the premises unfit for the plaintiff to live in. In the absence of any evidence of actual or constructive notice of a “defect” there can be no breach of duty, whether contractual, statutory or at common law.

Causation

105. The defendant argued that causation could not be established as the plaintiff could not explain why the slip occurred.

106. If I had been satisfied that the landlords were under a duty to remedy the “deficiencies” identified by Mr Kahler then I would have found that the fall was caused by the breach of that duty. It is self evident that the plaintiff suffered the very serious injury that she did for two reasons – her descending foot failed to find sufficient purchase on the tread and she lost her balance and was unable to steady herself or recover her balance because of the absence of any handrail. Each of the factors identified by Mr Kahler – the bare compliance with minimal widths of goings, the lack of edge delineation, the presence of carpet worn to a degree, the relatively low lighting - was liable to result in a user of the stairs failing to find sufficient safe purchase. The lack of a handrail compounded the problem. It would be against common sense to find that these various features did not contribute to the fall and consequent injury. In my view that is sufficient to satisfy the test of factual causation.^[48]

107. Given my findings on breach of duty it is not feasible to discuss further the considerations such as “scope of liability” relevant under s 11 of the Civil Liability Act 2003.

Contributory Negligence

108. Contributory negligence was pleaded. The defendant argued for a 50% contribution. I must approach the analysis on the assumption, rendered false by my findings, that the plaintiff’s injury was caused by the defendants’ breach of duty.

109. The relevant question is whether the plaintiff’s conduct “amounted to mere inadvertence, inattention or misjudgment, or to negligence”: Podrebersek v Australian Iron & Steel Pty Ltd.^[49]

110. While I would accept that the misplacement of the plaintiff’s foot must have involved “inadvertence, inattention or misjudgement” I see no basis on which to find that it amounted to negligence.

111. Given the absence of any evidence the defendants’ proposition amounts to an argument that whenever someone slips on stairs they must be guilty of negligence. Where it is shown – that being the premise here – that there is another cause of the slip and fall, namely the several deficiencies already discussed – that proposition cannot be correct. Something more must be shown. None was here.

Orders

112. There will be judgment for the defendants with costs.