200706071639110.NSW Dept Housing v Hume bhnf Donna Hume

New South Wales Department of Housing v Hume bhnf Donna Hume & Anor...

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CITATION: HEARING DATE(S): JUDGMENT DATE: JUDGMENT OF: DECISION: CATCHWORDS: LEGISLATION CITED: CASES CITED:

New South Wales Court of Appeal

New South Wales Department of Housing v Hume bhnf

Donna Hume & Anor [2007] NSWCA 69

This decision has been amended. Please see the end of the judgment for a list of the amendments.

16 October 2006 28 March 2007 Beazley JA at 1; McColl JA at 16; Basten JA at 102 1. Grant leave to appeal. 2. Appeal allowed. 3. Verdict for the plaintiff in the District Court set aside and in lieu thereof order that there be judgment for the first defendant against the plaintiff. 4. The plaintiff pay the first defendant’s costs in the District Court 5. The First Respondent pay the Appellant’s costs in this Court and have a certificate under the Suitors Fund Act 1951 in respect thereof.

NEGLIGENCE - duty of care - landlord’s liability - personal injury - rented premises - injury to visitor - fall off porch no more than one metre high down stairs - no hand-rails present - landlord’s duty of care to visitor - breach of duty of care - whether landlord breached duty of care - whether landlord should have installed hand-rails where no statutory obligation to do so.

Crown Proceedings Act 1988 Housing Act 1985 Suitors' Fund Act 1951 Supreme Court Act 1970 Supreme Court Rules 1970 Ahluwalia & Ors v Robinson [2003] NSWCA 175 Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 497 Baulkam Hills Shire Council v Pascoe [1999] NSWCA 431 Computer Edge Pty Ltd and Another v Apple Computer Inc and Another [1984] HCA 19 (1984) 54 ALR 767 Brock v Hillsdale Bowling & Recreation Club Ltd [2007] NSWCA 46 Francis & Ors v Lewis [2003] NSWCA 152 Harrington v Lowe [1996] HCA 8; (1996) 190 CLR 311 http://www.lawlink.nsw.gov.au/scjudgments/2007nswca.nsf/09da2a0a2a2744...

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PARTIES: FILE NUMBER(S): COUNSEL: SOLICITORS: LOWER COURT JURISDICTION: LOWER COURT FILE NUMBER(S): LOWER COURT JUDICIAL OFFICER: LOWER COURT DATE OF DECISION:

Jones v Bartlett [2000] HCA 56; (2005) 205 CLR 166 North Sydney Council v Pamela Plater [2002] NSWCA 225 NSW Land and Housing Corporation v Watkins [2002] NSWCA 19; (2002) Aust Torts Reports 81-641 Owners Strata Plan 30889 v Perrine [2002] NSWCA 324 Sakoua & Anor v Williams [2005] NSWCA 405; (2005) 64 NSWLR 588 Sheridan & Anor v Borgmeyer [2006] NSWCA 201 Taber v NSW Land and Housing Corporation [2001] NSWCA 182 Tame v State of NSW; Annetts v Australian Stations Pty Ltd [2002] HCA 35; (2002) 211 CLR 317 Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 Vairy v Wyong Shire Council [2005] HCA 62; (2003) 223 CLR 422 Wilkinson v Law Courts Ltd [2001] NSWCA 196 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 New South Wales Department of Housing - Appellant Tyler Hume by his next friend - First Respondent South Western Sydney Area Health Service - Second Respondent CA 40544 of 2005 M L Williams SC with M J B Turnbull - Appellant D J Russell SC with J Heazlewood - First Respondent R H Weinstein - Second Respondent McCabe Terrill Lawyers - Appellant Michael Jokovic & Associates - First Respondent Government Insurance Office - Second Respondent District Court CD 917 of 1998 Delaney DCJ 2 June 2005 IN THE SUPREME COURT OF NEW SOUTH WALES http://www.lawlink.nsw.gov.au/scjudgments/2007nswca.nsf/09da2a0a2a2744...

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Page 3 of 26 COURT OF APPEAL CA 40544/05 DC 917 of 1998 BEAZLEY JA McCOLL JA BASTEN JA

Wednesday 28

March 2007 NSW Department of Housing v Hume bhnf Donna Hume & Anor Ms Hume commenced proceedings as the next friend of her son, Tyler Hume, who was injured when she dropped him after falling while leaving a flat owned by the NSW Department of Housing (the “DOH”), but rented from it by an acquaintance of Ms Hume. For some years Ms Hume had suffered from a problem with her right knee dislocating. She never knew when that might occur. The flat was on the ground floor flat. There was a side entrance opening onto a porch which did not exceed one metre above ground level. There were four risers and three steps to the ground from the porch. On the right hand side in the direction of descent, the steps stopped short of the wall leaving a relatively narrow gap between the side of the stair and the wall. There was no balustrade on the porch, nor a handrail on either side of the steps. As Ms Hume approached the stairs that descended to ground level from the porch of the house, her knee dislocated and she “free fell” into the gap between the stairs and the porch, dropping Tyler in the process. Some days after the accident a railing was installed which extended up the four stairs and across the landing. The primary judge heard the issue of liability alone. The critical issue was whether the DOH had breached its duty of care to Tyler by failing to install a handrail to guard the porch and the steps. There was no statutory requirement for a handrail in either place. The primary judge found that the DOH had breached its duty of care to Tyler by failing to provide a handrail. His Honour held that it was foreseeable that such an incident could occur if there were no handrails installed. He found that while Ms Hume’s disability had caused the fall, the DOH’s breach had caused Tyler’s injury, as if there had been a rail, Ms Hume would have taken hold of it and Tyler would not have been dropped. The Department sought leave to appeal from the primary judge’s findings as to breach and causation. It argued that having regard to the fact the premises were leased, its duty of care was confined to one to take reasonable care that the premises contained no dangerous defects.

Held, per McColl JA (Basten JA agreeing), granting leave to appeal and allowing the

appeal:

As to duty of care

Per McColl JA (Basten and Beazley JJA agreeing) 1. The appellant owed a duty to the respondent to take reasonable care to avoid foreseeable risk http://www.lawlink.nsw.gov.au/scjudgments/2007nswca.nsf/09da2a0a2a2744...

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Page 4 of 26 of injury, but did not have to make the premises as safe as reasonable care could make them. [87]

Jones v Bartlett

[2000] HCA 56; (2000) 205 CLR 166; Wilkinson v Law Courts Ltd [2001] NSWCA 196; Owners Strata Plan 30889 v Perrine [2002] NSWCA 324;

Ahluwalia & Ors v Robinson

[2003] NSWCA 175; Sakoua & Anor v Williams [2005] NSWCA 405; (2005) 64 NSWLR 588 considered As to breach

Per McColl JA (Basten JA agreeing)

2. The primary judge erred in finding that the appellant breached its duty of care to the respondent.

Jones v Bartlett

[2000] HCA 56; (2000) 205 CLR 166, NSW Land and Housing

Corporation v Watkins

[2002] NSWCA 19, Thompson v Woolworths (Queensland) Pty

Ltd

[2005] HCA 19; (2005) 221CLR 234 applied.

Sheridan & Anor v Borgemeyer

[2006] NSWCA 201 distinguished. 3. The porch and stairs were no more or less inherently dangerous than any such structures or the many other dangers in premises. There is no doubt they could have been made safer but that did not mean they were dangerous or defective. [93]

Jones v Bartlett

[2000] HCA 56; (2000) 205 CLR 166; Baulkham Hills Shire Council v

Pascoe

[1999] NSWCA 431; Wilkinson v Law Courts Ltd [2001] NSWCA 196; Sakoua

& Anor v Williams

[2005] NSWCA 405; (2005) 64 NSWLR 588 applied.

Taber v NSW Land and Housing Corporation

[2001] NSWCA 182; North Sydney

Council v Pamela Plater

[2002] NSWCA 225, Owners Strata Plan 30889 v Perrine [2002] NSWCA 324, Francis & Ors v Lewis [2003] NSWCA 152; Ahluwalia & Ors v

Robinson

[2003] NSWCA 175 considered. Per Beazley JA 4. The stairs and landing, without a rail, posed a risk of serious injury to users. The erection of a handrail would make the stairs and landing significantly safer. Erecting a handrail was a simple, inexpensive response to the risk. [8], [9] As to Causation Per Beazley JA 5. There can be more than one cause of an accident so as to found liability. The cause of Ms Hume’s “free fall’, which was the immediate cause of the incident, was the absence of any structure to break her fall into the gap. Orders 1. Grant leave to appeal. 2. Appeal allowed. 3. Verdict for the plaintiff in the District Court set aside and in lieu thereof order that there be judgment for the first defendant against the plaintiff. 4. The plaintiff pay the first defendant’s costs in the District Court. 5. The First Respondent pay the Appellant’s costs in this Court and have a certificate under the http://www.lawlink.nsw.gov.au/scjudgments/2007nswca.nsf/09da2a0a2a2744...

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Suitors Fund Act

1951 in respect thereof. ******************* IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40544/05 DC 917 of 1998 BEAZLEY JA McCOLL JA BASTEN JA

Wednesday 28

March 2007 NSW Department of Housing v Hume by his next friend Donna Hume & Anor Judgment 1 BEAZLEY JA: I have had the opportunity to read in draft the judgment of McColl JA. However, in my opinion, the appeal should be dismissed. In reaching this conclusion, I agree with her Honour’s analysis of the authorities. In particular, I agree with her Honour’s statement at [87] that: “… the appellant owed a duty to the respondent to take reasonable care to avoid foreseeable risk of injury, but did not have to make the premises as safe as reasonable care could make them (observing that the latter phrase appears to have been intended to adopt Gaudron J’s test (Jones v Bartlett (at [92])) that ‘the occupier of premises is only required to take such care as is reasonable in the circumstances’ and ‘a landlord should not be subjected to a higher duty to make premises as safe for residential use as reasonable care and skill on the part of anyone can make them’, a test applied in the Court in Wilkinson v Law

Courts Ltd

and Owners Strata Plan 30889 v Perrine.” 2 The resolution of the appeal depends upon whether it can be said that his Honour’s assessment that there had been a breach of duty and that that breach caused the appellant’s injury has been shown to be appellably erroneous. That question has to be determined against the background that an appeal to this Court is by way of rehearing: Supreme Court Act 1970, s 75A. There also needs to be taken into account that his Honour made a factual error in his judgment: see McColl JA at [33]. 3 It is possible that in a given situation, there may be little difference between making the “premises as safe as reasonable care could make them”, which is not the standard of care required of a landlord, and “taking such care as is reasonable in the circumstances”. This case, in my opinion, is one such case. 4 The subject premises were part of a number of adjoining public housing residences. The lessee, Ms Slade, gave evidence that she had complained to the appellant about the state of the steps. The appellant’s evidence about her complaint was that in approximately 1991 or 1992, she had spoken to a Mr John Mills at the Housing Commission, who was “the officer in charge

of my street

” “for many years”. Her evidence was: http://www.lawlink.nsw.gov.au/scjudgments/2007nswca.nsf/09da2a0a2a2744...

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Page 6 of 26 “A. I told him that my friend had fallen off the veranda down the stairs and that I thought that they should come and have a look. I believed it should have a railing and I also said that my son and other children had fallen prior and I said could they look at it, and do you want to know his response? Q. Yes? A. He responded by saying that he would look into it but he had to inform me that there wasn’t a great deal of funding at the time, and did not know whether there’d be sufficient funds to be able to fix it for me at that stage.” 5 Ms Slade said she had a discussion with Mr Mills two weeks later. She said: “A. I asked him whether anything was going to be looked into, whether he was going to – that if they were going to come out and investigate, and he said he was still looking into it.” 6 The appellant had a record of complaints made by Ms Slade over the years. There was no record of this particular complaint. The trial judge, however, accepted that Ms Slade made the complaint. There is no appeal from that finding. 7 The expert evidence of Mr Cooke, in his report dated 22 November 2004, was that although there was no applicable Australian Standard that specified that a guard rail should be erected: “… the safety of the porch and stair (at the front entrance to public housing) would have been significantly improved if railings had been provided along the open sides of the porch and down the side of the stair.” 8 In my opinion, this evidence, which was unchallenged, was not a counsel of perfection – that is, it was not evidence that the erection of a handrail would make the “premises as safe as

reasonable care could make them

”. Rather, it was evidence that it would make the stairs and landing significantly safer. This was a commonsense view. The stairs and landing, without a rail, posed a danger to users, including children, who had fallen from the landing into the gap and where the presence of the gap “increased the risk of serious injury” (emphasis added). 9 The appellant would know that the occupants and visitors to these premises would include persons in a range of age groups and the premises would be used in a variety of circumstances. The likelihood of children falling, for example, was particularly high. The erection of a handrail was a simple, inexpensive response to the risk, which, as I have emphasised, was a risk of serious injury. In my opinion, it was relevant, although not decisive that the appellant had been informed of previous falls. The unguarded steps and landing posed a risk of injury, regardless of complaint. Likewise, it was relevant, but not decisive in the appellant’s favour that the construction of the stairs did not breach any Australian Standard. As I have said, these steps were unsafe and posed a risk of serious injury. 10 There is a further issue on the appeal as to whether the appellant’s breach cause the respondent’s injury. The appellant’s argument was that the cause of the respondent’s injury was that his mother’s knee suddenly gave way on her, and not the absence of a handrail. The appellant relies upon the description given by Ms Hume that in falling as her knee gave way, she instinctively put both of her arms out to stop falling and in doing so, dropped the respondent. It was submitted that the presence of a rail would not therefore have prevented the respondent being dropped. http://www.lawlink.nsw.gov.au/scjudgments/2007nswca.nsf/09da2a0a2a2744...

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Page 7 of 26 11 I consider that there are two problems with the appellant’s submission. First, there can be more than one cause of an accident so as to found liability. The appellant’s submission focuses only on the immediate cause of the fall. Secondly, I do not consider that it provides an accurate assessment of Ms Hume’s evidence, but concentrates on one question and answer in cross examination, which, when taken in context, does not have the apparent force for which the appellant contends. 12 Ms Hume’s evidence was that she was carrying the respondent on her left hip. As she walked from the front door along the porch, the gap was to her right. She had not stepped onto the stairs when her knee gave way. In her evidence in chief, she explained what happened: “A. I went to step towards the, to go down the stairs but didn’t get to reach the stairs. My right knee dislocated which caused my body to move to the right and we freefell, like Tyler freefell out of my arms as I was falling down the gap because I had nothing to hold on to, to stop myself from falling.” 13 In cross-examination, she said: “Q. When your knee gave way you put your arms out, both of them, to stop you falling didn’t you? A. As I was falling, as I was falling. Q. … you dropped Tyler is that right? A. Yeah. Q. … do you know where Tyler first struck? A. On the pathway. … A. At the bottom of the stairs. Q. … but do you remember where you landed when you fell? A. Down in the – the gap between the stair and the wall with my top half of my torso about here, directed over on to the cement at the bottom of the stairs, so I was sort of in it and the top half of me was over Tyler on the cement. Q. But you had fallen off the porch completely is that correct? A. Yeah. I didn’t even fumble, I just freefell. … Q. How far from the edge of the porch were you when you put that right leg down when the knee gave way, do you remember? A. About a foot maybe, maybe less.” 14 In my opinion, Ms Hume’s evidence is clear that the cause of her “free fall” was the absence of anything to grab on to. That evidence was not the subject of direct challenge in cross examination and in my opinion was not otherwise undermined. But in any event, it is apparent that the cause of the “free fall”, which was the immediate cause of the incident, was the absence of any structure to break Ms Hume’s fall into the gap. http://www.lawlink.nsw.gov.au/scjudgments/2007nswca.nsf/09da2a0a2a2744...

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Page 8 of 26 15 I would dismiss the appeal with costs. 16 McCOLL JA: The New South Wales Department of Housing seeks leave to appeal from a judgment of Delaney DCJ who found it had breached its duty of care to Tyler Hume. Tyler was injured on 14 August 1995, when he was dropped by his mother, who fell while carrying him and leaving premises at 3/37 Tarlington Parade, Bonnyrigg. Tyler was approximately two and a half years old at the time of the accident, having been born on 23 February 1993. The proceedings were commenced in his name by his next friend, his mother, Donna Hume. Leave to appeal is necessary because the primary judge determined the issue of liability only and hence his judgment was an interlocutory decision: Computer Edge Pty Ltd and Another v Apple

Computer Inc and Another

(1984) 54 ALR 767; Harrington v Lowe [1996] HCA 8; (1996) 190 CLR 311 at 320 (footnote 19). Leave to appeal should be granted as, in my view, the primary judge erred in concluding the appellant had breached its duty of care to Tyler. 17 The Statement of Claim alleged that as a result of the accident the respondent suffered a fractured skull, brain damage and development retardation. It also alleged that when, as a result of those injuries, the respondent was taken to Fairfield District Hospital, the second respondent, the South Western Sydney Area Health Service, examined and discharged him in a manner which constituted negligence on its part. 18 The proceedings were commenced on 14 August 1998 in the District Court however their hearing was initially deferred because of the respondent’s age. It came on for hearing on what was said by the primary judge to be the issue of liability alone in February 2001. The hearing proceeded against the appellant only as the second respondent admitted breach of duty of care (but not causation). Statement of the Case 19 The respondent was born suffering Down’s syndrome. At the date of the accident he was being carried because he could not walk. The primary judge did not make explicit findings about the circumstances in which the respondent’s mother fell, however they were uncontroversial. 20 The appellant rented the property at 3/37 Tarlington Parade, Bonnyrigg to Dianne Betty Slade, who was a friend of Ms Hume’s. She had occupied the premises since 1981 originally with her husband who had been the party to the lease with the appellant. She remained in occupation after she and her husband separated in 1986. There was no evidence as to the terms of any lease between the appellant and Ms Slade. 21 Ms Hume had stayed at the premises for two or three nights a week for about five years. She had entered and left the house using the back stairs and the back porch on many occasions over that time. For some years she had suffered from a problem with her right knee dislocating. She never knew when that might occur. 22 3/37 Tarlington Parade was a ground floor flat with a side entrance opening onto a porch which, it appears to have been common ground, did not exceed one metre above ground level. There were four risers and three steps to the ground from the porch. On the right hand side in the direction of descent, the steps stopped short of the wall leaving what the respondent’s expert described as “a relatively narrow gap between the side of the stair and the wall.” There was no balustrade on the porch, nor a handrail on either side of the steps. 23 Ms Hume came out of the door carrying the respondent on her left hip. She was eight and a half months pregnant at the time. She closed the screen door with her right hand, and, as she http://www.lawlink.nsw.gov.au/scjudgments/2007nswca.nsf/09da2a0a2a2744...

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Page 9 of 26 said in her evidence in chief: “I went to step towards the, to go down the stairs but didn’t get to reach the stairs. My right knee dislocated which caused my body to move to the right and we free fell, like Tyler free fell out of my arms as I was

falling down the gap because I had nothing to hold onto, to stop myself from falling

. Q. So you fell from, you fell from where, from where to where? A. From the top of the porch down the hole, right down the hole and across it to the path where Tyler’s head hit the ground.” (emphasis added) 24 The accident occurred on a sunny day. There was no difficulty with Ms Hume’s ability to see where she was going or where she was immediately prior to her knee dislocating. 25 Ms Hume gave the following evidence in cross-examination. “Q. When your knee gave way you put your arms out, both of them, to

stop you falling didn’t you?

A. As I was falling, as I was falling. Q. And in doing that, sadly and no criticism, but you dropped Tyler is that right? A. Yeah, Q. And where did Tyler – and you may not be able to answer, but do you know where Tyler first struck? A. On the pathway …at the bottom of the stairs. …… Q. …do you remember where you landed when you fell? A. Down in the – the gap between the stair and the wall with my top half of my torso about here, directed over onto the cement at the bottom of the stairs, so I was sort of in it and the top half of me was over Tyler on the cement. Q. But you had fallen off the porch completely is that correct? A. Yeah. I didn’t even fumble, I just free fell. …. Q. How far from the edge of the porch were you when you put that right leg down when the knee gave way … A. About a foot maybe, maybe less.” (emphasis added) 26 The respondent’s case at trial was that the appellant breached its duty of care by failing to provide a handrail to guard the porch and the steps and that the appellant had been notified of previous accidents involving the steps and that those notifications enlivened an obligation on its part to install safety railings. 27 Some days after the accident a railing was installed which extended up the four stairs and across the landing. The primary judge concluded (at [7]) that while this action was not evidence the appellant had been negligent in not installing a railing prior to the accident, it indicated the options available to the appellant to protect the occupants of the premises from the risk of injury. 28 The appellant’s case at trial was that there was nothing it could reasonably have done to prevent the accident because, having regard to Ms Hume’s evidence about her position when her knee gave way, she would have been unable to prevent her fall by taking hold of a railing. Ms Hume had marked her position when her knee dislocated on photographs (exhibit A). On the http://www.lawlink.nsw.gov.au/scjudgments/2007nswca.nsf/09da2a0a2a2744...

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New South Wales Department of Housing v Hume bhnf Donna Hume & A...

Page 10 of 26 basis of these markings, the primary judge found (at [10]) that she was on the top step or landing at the time her knee gave way. 29 The evidence of prior notice was given by Ms Slade. She said she had spoken to a Mr John Mills, the person responsible for her street on behalf of the appellant in about 1991 or 1992 and told him: “… my friend had fallen off the veranda down the stairs and that I thought they should come and have a look. I believed it should have a railing and I also said that my son and other children had fallen prior and I said could they look at it …and he responded by saying he would look into it but he had to inform me that there wasn’t a great deal of funding at the time, and did not know whether there’d be sufficient funds to be able to fix it for me at that stage.” 30 Ms Slade said she had rung Mr Mills approximately two weeks later and asked “whether anything was going to be looked into … and he said he was still looking into it.” 31 Ms Slade said that while her son had fallen off the porch over periods “until he was smart enough when he was eight or nine or ten”, what happened in 1991 or 1992 when an adult fell “worried me and I was embarrassed because an adult had fallen.” She thought the adult who fell was “just bruised”. 32 The respondent called Ms McKay who said she fell from Ms Slade’s porch in about 1991. Her evidence as to how she came to fall was that as she was commencing to take a step onto the first step off the porch: “… I really don’t recall all I know is I stepped and the next minute I was like down.” She did not say whether she was injured in the fall, nor what, if any, role a handrail might have played. 33 The primary judge found (at [6]) that “the evidence about previous falls was imprecise and unclear as to the cause and the nature of those falls” but accepted “that [the appellant] had been told of the fact that falls had occurred and had agreed to undertake work at the premises but had not done so for budget reasons as at the date of the accident.” The appellant challenges the second finding (that it had agreed to undertake the work) and concedes that there is no evidence to support the third. 34 The respondent tendered a report from Dr John Cooke, an architect, which described the regulatory history relevant to the design of buildings from 1921 (Ordinance 71, Ordinance 70 and the Building Code of Australia) the provisions of which substantially corresponded. Although Dr Cooke had no information as to when the premises were constructed, he concluded, having regard to the fact the stairs had only four shallow risers, that even if the stairs had been built after 1 April 1972 (the date cl 44B of Ordinance 71 commenced), there was no statutory requirement for a handrail on the porch or the sides of the stair. Dr Cooke nevertheless opined: “20. However, as falls on stairs are common and were foreseeable in the case of the subject stair, the safety of the porch and stair (at the

front entrance to public housing) would have been significantly improved if railings had been provided along the open sides of the porch and down the side of the stair.

In particular, the unguarded gap http://www.lawlink.nsw.gov.au/scjudgments/2007nswca.nsf/09da2a0a2a2744...

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Page 11 of 26 between the side wall and the right hand side of the stair on descent deprived stair users (including the plaintiff’s mother at the time of the accident) of using the side wall to steady themselves and a gap increased the risk of serious injury caused by bodily impact on the brick wall and/or the edge of the concrete stair in the event of a fall down or near that stair. 21. I am instructed that other front stairs in the complex do not stop short of the side wall. The additional cost of extending the side of the stair to meet the side wall would have been trivial at the time of construction. ** I am instructed that handrails were added after the accident. The subsequent addition of handrails significantly increased the safety of the stair, reduced the risks of falls on the stair, eliminated the risk of falls into the narrow gap between the side of the stair and the side wall, and eliminated or significantly reduced the risk of injury of the type suffered by the plaintiff.” (emphasis added) **The respondent did not pursue a case that the stairs ought to have been constructed adjacent to a wall. 35 Dr Cooke was not cross-examined. 36 The appellant called no evidence. 37 The primary judge noted that it was common ground that the appellant owed a duty to the respondent to take reasonable care to avoid foreseeable risk of injury, but did not have to make the premises as safe as reasonable care could make them. 38 The primary judge found (at [11]) that Ms Hume’s knee “gave way suddenly because of a pre-existing disability in her knee [and] there was no evidence that this disability had ever caused her to fall at the house before; it was an unexpected event.” 39 The manner in which the primary judge recorded submissions made it difficult to disentangle findings from submissions. His Honour appeared to conclude (at [13]) that the appellant had breached its duty of care by failing to provide a handrail, saying: “The plaintiff submitted that the defendant breached its duty of care by failing to provide the handrail. There is no doubt that in those circumstances the defendant should have foreseen that a person in the position of the plaintiff [sic, this should have been Ms Hume] could have fallen on the stairs as a result of misjudgement of their step or by accident, and having been acquainted with previous incidents the duty required the defendant to act to avoid the risk that further incidents could occur.” 40 However his Honour then went on to consider whether there had been a breach by reference to Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 (at 47-48). He said (at [15]): “… the magnitude of the risk was significant, although the likelihood of it occurring was not great, nevertheless it was foreseeable that such an incident could occur … in my opinion, the defendant should have had the perception referred to by Dr Cooke** in his report as to the risk if handrails were not installed. In my opinion, the failure to install these handrails was a breach of the defendant’s duty of care.” http://www.lawlink.nsw.gov.au/scjudgments/2007nswca.nsf/09da2a0a2a2744...

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Page 12 of 26 ** This appears to have been a reference to the portion in Dr Cooke’s report I have emphasised in the extracts above. 41 The appellant’s case at trial on causation was that the absence of a handrail had not caused the accident because Ms Hume’s position when her knee gave way “would have prevented her from taking hold of the rail and thereby avoiding a fall.” Although the primary judge found (at [12] that it was Ms Hume’s disability which caused her to fall, not the condition of the stairs, this was not his ultimate finding on causation. He dealt with the ultimate causation issue in the following way (at [16]): “The question is whether or not, even if that handrail had been installed, the plaintiff would still have been injured as his mother let go of him. The reason his mother let go was because she was trying to stop herself from falling. If she had not had that concern and been able to grasp the handrail with her spare hand then in my opinion more likely than not the accident would have been avoided. The question of causation can be approached in accordance with the views expressed by the High Court in Betts v Whittingslowe (1945) 71 CLR 637. In my opinion, no substantial reason to the contrary has been advanced that would suggest that the failure to install the handrail was [sic, the word “not” should appear here] a cause of this accident. The fact that the

handrail could be installed across the landing and was indeed installed in due course in that way indicates to me that had it been in place the plaintiff [sic, this should have been Ms Hume] would have taken hold of it and her son would not have been dropped to the ground.

The breach of duty caused the injury.” (emphasis added) 42 His Honour concluded there should be a verdict for the respondent. The Appeal 43 The appellant challenges the primary judge’s findings that it breached its duty of care in failing to install handrails and that the respondent’s injuries were caused by that failure. 44 It argues that having regard to the fact the premises were leased to Ms Slade, its duty of care to the respondent was confined to one to take reasonable care that the premises contained no dangerous defects, being defects which “are more than dangerous; [and] … are dangerous in a way not expected by their normal use”: see Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 at [178], [196] per Gummow and Hayne JJ. 45 As to breach the appellant submits that compliance with its obligation to take reasonable care to avoid foreseeable risk of injury did not require it to have a railing on the porch or stairs at the date of the accident. Its essential argument is that Ms Hume fell on a porch which was not defective in any sense and that, having regard to her position at the time her knee dislocated, she had already dropped the plaintiff in an instinctive reaction to prevent herself falling by the time she might have been able to grasp any handrail. 46 As to the stairs, the appellant relies upon the primary judge’s finding that it was Ms Hume’s pre-existing disability, not the condition of the stairs which caused her fall. It also argues that the evidence about previous falls was imprecise as to both their cause or nature and was insufficient to ground a finding that it had been informed of the necessity to have a railing in the area where Ms Hume fell. It also challenges the primary judge’s finding that after being notified of previous falls it had agreed to undertake work at the premises. http://www.lawlink.nsw.gov.au/scjudgments/2007nswca.nsf/09da2a0a2a2744...

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Page 13 of 26 47 It submits that in circumstances where there was no defect in the stairs or porch, either in fact or probably notified to it, there was nothing to which it ought to have responded. It argues the fact the porch and stairs complied with relevant legislation at the time was a “more powerful factor in [its] favour than the knowledge that was passed on to the Department.” 48 The appellant submits the primary judge’s finding that the absence of a handrail caused the accident because Ms Hume would not have dropped him had she not been concerned that she might fall was an exercise in speculation. It points out his Honour did not identify any evidentiary foundation for this finding. It submits that to the extent that finding may have found support in the passage emphasised in the first extract from Ms Hume’s evidence (at [23]), that evidence had to be read in the light of the cross-examination, particularly that portion emphasised in the second extract (at [25]). It argues that once it is accepted Ms Hume’s reaction in dropping the respondent was instinctive, the accident would have happened whether or not a railing had been present. It also submits the primary judge engaged in impermissible speculation in concluding that if there had been a handrail Ms Hume would have taken hold of it and not dropped the plaintiff. 49 As to breach, the respondent submits that Jones v Bartlett is distinguishable because, in that case, there was nothing unusual about the premises which alerted, or should have alerted, the owner of the premises to any unusual danger. He emphasises the evidence of prior complaints in this case and, in particular, that those who had previously fallen, Ms Slade’s son and Ms McKay, had both fallen from the porch. He argues that, having been on notice of prior falls, the appellant was also on notice that further falls could occur, whether through inadvertence or because of a person’s age or infirmity. He submits it was irrelevant that building standards did not require a rail across the porch, as the appellant ought to have realised that any fall from it could result in serious injuries, particularly when there was a hard surface below. The risk was exacerbated, he argues, when the person who fell had no control over whether they fell, and was unable to protect themselves while falling. 50 As to causation, the respondent submits that when Ms Hume walked onto the porch her right hand was free (he was on her left hip) and that she fell towards the right side of the porch and stairs. Had there been a railing, she would have been able to grab it with her right hand. Alternatively, he argues, even if she could not have grabbed a railing, her body would have fallen against it, so that she would not have fallen off the porch. 51 The respondent concedes that “if no prior complaint had been made, then, on the authority of

Jones v

Bartlett, [he] would probably have lost as the [appellant] would not have known of the defect”. However, he argues, once the primary judge accepted the evidence of prior complaint, the appellant was on notice of the dangerous condition of the premises, and it would have been reasonable for it to have installed the handrails erected shortly after the accident. 52 The respondent also challenges the appellant’s submission that the evidence disclosed Ms Hume dropped him when she put her arms out to prevent her fall. He argues he was “propelled from [Ms Hume’s] arms during [her] fall” and that she would not have fallen off the porch if a railing had been present. 53 As to causation, the respondent submits the primary judge’s conclusion was supported by Ms Hume’s unchallenged evidence that she fell because she had nothing to hold onto. Consideration 54 As the primary judge noted the parties were agreed on the content of the duty of care the appellant owed the respondent. In this Court, however, the appellant sought to confine its duty http://www.lawlink.nsw.gov.au/scjudgments/2007nswca.nsf/09da2a0a2a2744...

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Page 14 of 26 to the respondent to that delineated by Gummow and Hayne JJ in Jones v Bartlett as a landlord’s duty to entrants to leased residential premises to take reasonable care that the premises contained no dangerous defects. The respondent did not complain about the appellant’s departure from the agreed basis upon which the case had been conducted at trial and relied upon the submissions I have recorded concerning Jones v Bartlett. 55 In Jones v Bartlett the appellant, the adult son of the tenants of a house was injured when he accidentally walked into an internal glass door. The door was made of annealed glass of 4mm thickness. At the time the building was constructed the glass complied with the relevant legal standard. However, it was not of the thickness required under Australian Standards for glass in new doors which had applied from 1973. Further, a 1989 standard required replacement glass in such a door to be toughened safety glass and laminated safety glass at 10mm thickness. The appellant brought proceedings alleging that before the premises were leased to his parents, the landlords owed him a duty to have the premises inspected by an expert glazier capable of recognising that the glass door contained 4mm annealed glass and to replace that glass with 10mm glass or laminated safety glass in accordance with the then current standard. He put his case on a number of bases, one at least being that the landlord’s duty arose as part of the general law of negligence. He failed on all bases, albeit that McHugh J (in dissent) would have allowed the appeal on the basis the appellant was entitled to succeed in respect of his claim for breach of common law duty of care. 56 Jones v Bartlett concerned the extent of the obligation a landlord of residential premises owed to tenants and members of their family occupying the leased premises. It did not concern the nature of the duty a landlord might owe to other entrants to residential premises, and while Gummow and Hayne JJ (in their joint judgment at [195] – [197]) and Kirby J (at [231], [237]) also considered that issue, those passages were obiter. 57 Gleeson CJ held (at [57]) that the landlord’s duty was to take reasonable care to avoid foreseeable risk of injury to prospective tenants and members of their household and (at [58]) that the question whether that duty had been breached was to be determined by “the standards of the reasonable person” and “involve[d] a factual judgment, and [did] not provide the occasion for the imposition of a requirement of the law.” 58 Gaudron J said (at [92]) that “there [was] no basis for the imposition of a higher duty of care on a landlord than is cast on an occupier of premises” and, referring to Australian Safeway

Stores Pty Ltd v Zaluzna

[1987] HCA 7; (1987) 162 CLR 479, that “[a]s the occupier of premises is only required to take such care as is reasonable in the circumstances … a landlord should not be subjected to a higher duty to make premises as safe for residential use as reasonable care and skill on the part of anyone can make them.” 59 Gummow and Hayne JJ said (at [168] - [169]) that the duty of care between the landlord and a guest lawfully upon the premises was "that which arises under the ordinary principles of the law of negligence, namely, a duty to take reasonable care to avoid foreseeable risk of injury to the respondent [and] [t]he nature and extent of the duty in the particular instance depends upon the circumstances of the case" and that the same held true of the duty between the landlord and tenant. However, in their Honours’ view, it was difficult to determine the nature and extent of any duty that existed and what constituted a breach thereof, and “[t]he ‘circumstances’ to be considered may differ between landlord and tenant and landlord and other persons”, with “the latter … likely to be less stringent than the former”. They held (at [171]) that “the relationship between landlord and tenant [was] so close and direct that the landlord is obliged to take reasonable care that the tenant not suffer injury” but that, having regard to the fact “that ordinarily the landlord will surrender occupation of the premises to the tenant… the content of any duty is likely to be less than that owed by an owner-occupier who retains the ability to direct what is done upon, with and to the premises.” Accordingly, they concluded (at [171]), a http://www.lawlink.nsw.gov.au/scjudgments/2007nswca.nsf/09da2a0a2a2744...

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Page 15 of 26 landlord’s duty to a tenant of residential premises was “conterminous with a requirement that the premises be reasonably fit for the purposes for which they are let, namely habitation as a domestic residence and (at [173]) that 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.” 60 Insofar as dangerous defects (which they identified (at [178]) as defects which “are more than dangerous; [and] … are dangerous in a way not expected by their normal use”) were concerned, Gummow and Hayne JJ held (at [173]) that the duty would “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.” In their Honours’ view “[t]his [did] 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”. Their Honours appear to have assimilated the appellant’s position to that of the tenant noting, (at [180]) that “[i]t [was] not suggested that any higher duty was owed to a permitted occupant such as the appellant”. They concluded (at [180]) that the respondents had not breached their duty of care as the glass door was not a dangerous defect and “[t]he injury to the appellant was caused by his using the premises in the usual course of an occupancy of residential premises.” 61 Notwithstanding that this conclusion was sufficient to dispose of the appellant's case insofar as it rested upon the existence and breach of a duty of care owed to him by the respondents (see [182]), Gummow and Hayne JJ went on to consider the taking of reasonable care to ascertain dangerous defects, and to remove them or otherwise to make the premises safe, as well as the landlord’s duty to entrants to leased premises. The latter topic was dealt with in the passage upon which the appellant relies (at [195] – [198]). 62 In this respect their Honours emphasised (at [195]), that, consistently with Australian

Safeway Stores Pty Ltd v Zaluzna

, liability for injury suffered by an entrant “primarily will rest with the occupier”. They concluded (at [196]), however, that “[t]he landlord's duty to take reasonable care that the premises contained no dangerous defects, owed … to the tenants, extends to … other entrants” on the basis that “dangerous defects are unlikely to discriminate between tenants and those on the premises whether as an incident of a familial or other personal relationship…or some other social or business relationship or occasion.” 63 Kirby J was the only other member of the Court who considered the nature of the duty a landlord owed to visitors to leased premises. On his Honour’s approach (at [231]), no distinction was to be drawn between the duty a landlord owed to tenants and other entrants to the leased premises, whether they be permitted occupants or visitors. He concluded (footnotes omitted): “237 … (1) a landlord owes a duty of care not solely under the contract of lease and not only to tenants but also to third parties (such as permitted occupants and visitors) injured as a result of a patent defect in the tenanted premises; (2) a landlord may discharge such duty of care by undertaking an inspection of the premises prior to each lease or renewal of a lease, by responding reasonably to defects drawn to notice, and by ensuring that any repairs are made which such inspection or notice discloses to be reasonably necessary; and (3) a landlord may ordinarily discharge its duty by delegating such inspection and repair to a competent person …” 64 McHugh J was critical of Gummow and Hayne JJ’s “dangerous defects” model, saying (at [100]) that such a limitation, as well as the concept of the "ordinary use of the premises … would reintroduce into the law the categories expelled by this Court in Australian Safeway http://www.lawlink.nsw.gov.au/scjudgments/2007nswca.nsf/09da2a0a2a2744...

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Page 16 of 26

Stores Pty Ltd v Zaluzna

.” In his Honour’s view “[r]easonable care in all the circumstances of the case is the benchmark of negligence law [and] [n]o exception to it should or need be made for landlords' liability.” 65 As the foregoing reveals there was no agreement between the members of the High Court who formed the majority as to the scope of the landlord’s duty to the tenants and members of their family. Nor, insofar as the question was considered was there any agreement between Gummow and Hayne JJ on the one hand and Kirby J as to the scope of a landlord’s duty to other entrants to residential premises. 66 The scope of an occupier’s duty of care in relation to the safety of premises, in particular in relation to the stairs in premises, has been considered in recent decisions of this Court of which only two, Wilkinson v Law Courts Ltd [2001] NSWCA 196 and Francis & Ors v Lewis [2003] NSWCA 152, appear to have been cited to the primary judge. Some have concerned leased residential premises, where the defendant was the landlord. None has distinguished between the duty of care the landlord owed to a tenant as opposed to a visitor. 67 In Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at [2] Gleeson CJ and Kirby J said “[t]he issue of breach of duty in an action framed in negligence is one of fact, although its resolution involves the application of normative standards” and that while “comparisons with similar cases will be made …decided cases in this area are fact-sensitive, and it is a sterile exercise, involving a misuse of precedent, to seek the solution to one case in decisions on the facts in other cases” Nevertheless their Honours recognised that it was “understandable that, in a search for consistency, comparisons with similar cases will be made”. 68 With their Honours’ caveat in mind, but with a concern to ensure consistency, I turn to consider the decisions of this Court to which I have referred. 69 In Baulkham Hills Shire Council v Pascoe [1999] NSWCA 431 the respondent/plaintiff fell while descending a flight of eight wooden stairs, carrying either three or four chairs, in premises of which the appellant/defendant was the occupier. The stairs were worn. The primary judge concluded the appellant/defendant had been negligent, although the basis for that conclusion does not appear from the judgment. In allowing the appeal Brownie AJA (with whom Sheller and Giles JJA agreed) observed (at [3]) in his ex tempore judgment that “[t]he great difficulty with the plaintiff’s case was that he was unable to describe how it was that he came to fall.” A “Dr Cook” (who appears to have been the Dr Cooke who gave expert evidence in the present case) gave evidence for the plaintiff. In the course of cross-examination he opined that “there is no such thing as a perfectly safe stair”, an opinion Brownie AJA endorsed (at [9]). Brownie AJA would have allowed the appeal on the basis (at [9]) that there was no evidence to justify a finding that the accident occurred by reason of any defect in the stairs. His Honour added (at [10]): “11 There is a further reason, in my view, why the appeal should be allowed … That is that on the evidence it does not seem to me to have been established that a reasonable person in the position of the respondent ought to have done anything to avert the danger to which Dr Cook referred. As I [sic, this may have been “he”] said, no stairs are perfectly safe, and that although they complied with the appropriate standard they could have been made a bit safer. Many people had used this set of stairs, so far as the evidence goes, without incident. The plaintiff himself had used the stairs on a number of occasions without incident and without, it seems, any sense of alarm.” 70 In Taber v NSW Land and Housing Corporation [2001] NSWCA 182 the appellant/plaintiff http://www.lawlink.nsw.gov.au/scjudgments/2007nswca.nsf/09da2a0a2a2744...

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Page 17 of 26 who was renting premises from the respondent/defendant was injured when she overstepped the bottom step in a flight of four steps down which she was carrying a basket of laundry. She alleged the respondent/defendant had breached its duty of care in failing to erect a handrail. She failed at trial and on appeal. Rolfe AJA (with whom Heydon JA and Ipp AJA agreed) considered (at [40] – [55]) the landlord’s duty to a tenant in the light of Jones v Bartlett and concluded (at [56]) that while the “majority of the High Court were of the view that a landlord owes a duty to a tenant [the] duty was expressed in … various ways [but was] consistent with [a] contractual obligation to keep the premises in reasonable repair”. He described the steps (at [60]) as “essentially unremarkable” and (at [61]) rejected the argument that the respondent/defendant had breached its duty of care, finding: “(a) the steps were obvious; (b) the appellant was proceeding carefully down them until she came to the last when she was very careless; (c) there was no suggestion that the fourth step, although 25 millimetres short of the code-required width, was inadequate to take her foot if she had placed it upon the step; and (d) the appellant did not assert that in using the steps in the way in which she was, she suffered any inconvenience or difficulty by reason of other breaches of the code in the construction of the higher steps.” 71 In Wilkinson v Law Courts Ltd, the appellant/plaintiff (an athletic 34 year-old) was injured when he fell down the steps outside the Law Courts building in Sydney. There was no handrail, edge-delineation strip or warning sign near the steps. He sued the occupiers of the building. After the accident a white, slip resistant, nosing strip was affixed to the steps giving “a highly visible contrast to each step” and “a number of handrails [were] installed”, not in response to the accident but as a result of an access audit of the building conducted by a Commonwealth authority: see [6]). The primary judge concluded that the respondent/defendant had not breached its duty of care and that the appellant had not established the accident was caused “by anything other than a mistake he made in the way he placed his feet as he descended the stairs”: see [10]. Heydon JA (with whom Meagher JA and Rolfe JA agreed) said, in rejecting the allegation the respondent had been negligent in failing to provide a handrail: “21 The proposition that the failure to have a handrail at or near the place of the accident was a breach of duty encounters the difficulty that the steps run a considerable distance from north to south and turn a corner to run a further distance from west to east. Members of this Court, obviously, have observed the steps and the way they are used thousands of times. Pedestrians go up and down the steps at numerous points along their length and at a great variety of angles. The defendant was sued as the occupier of premises. An occupier of premises is only required to take such care as is reasonable in the circumstances. The duty is not to make the premises as safe as “reasonable care and skill on the part of anyone can make them”, as Gleeson CJ, [sic, this should be Gaudron J] speaking of landlords as a sub-class of occupiers, said in

Jones v Bartlett

(2000) 75 ALJR 1; 176 ALR 137 at [92]. If safety was to be assured by procuring that every user of the steps had a handrail within reach, a handrail would be needed at many points along the considerable length of the steps. An extensive system of railings would be expensive. It would be ugly, which is not irrelevant: Phillis v Daly (1988) 15 NSWLR 65 at 68F-G; Jones v Bartlett (2000) 75 ALJR 1; http://www.lawlink.nsw.gov.au/scjudgments/2007nswca.nsf/09da2a0a2a2744...

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Page 18 of 26 176 ALR 137 at [23]. The plaintiff points out that people using the steps may be seriously disabled. It may also be pointed out that many users of the steps are carrying bags or folders, or are manoeuvring trolleys. Any system of handrails would have to accommodate their needs. It would also interfere with many customary uses of the steps. … 22 The steps were obvious in appearance, their edges were clear, there were not many of them, and dimensions and variations in the step sizes have not been shown to create any danger or create any inadequacy in them if they were properly used. In Stannus v Graham (1994) Aust Torts Reports ¶81-293 at 61,566, Handley JA pointed out that there are ‘extensive steps outside public buildings in Sydney such as the Joint Courts Building, the Public Library, the Art Gallery, Parliament House and the Opera House. A handrail is not to be found within reach of every person using these steps’. … 32 Stairs are inherently, but obviously, dangerous. Many measures might have been taken to make the stairs as safe as human skill could possibly make them; but the duty is only to take care which is reasonable under the circumstances. Among the essential circumstances is the following fact: ‘persons using steps may misjudge their footing and slip or trip but this is an everyday risk which members of the public avoid by taking care for their own safety’:

Stannus v Graham

(1994) Aust Torts Reports ¶81-297 at 61,566 per Handley JA…” 72 In North Sydney Council v Pamela Plater [2002] NSWCA 225 the plaintiff was injured when descending concrete stairs in the defendant’s multi-storey car park. To the extent she was able to describe how she came to fall, she said (see [38]) “she put her foot out, it touched the step very briefly, and she fell down the stairs.” The stairs had been constructed in the late 1960’s or early 1970’s, and complied with all relevant ordinances and standards at the time of their construction. Each step had two strips of carborundum material placed towards its nose. The primary judge found (see [39]) that the plaintiff fell “because her foot landed on the nosing which did not offer her sufficient friction”, and that the carborundum strips provided no assistance to her “because her foot would not come to rest on the strips on the tread”. There was no specific evidence as to wear on the nose of the steps, save that from a photograph the primary judge concluded that the nose was worn. Giles JA (with whom Handley JA agreed) having observed (at [40]) that “the photograph was most indistinct” reversed the primary judge’s conclusion that the defendant had breached its duty of care, saying (at [43]): “43 The claimant was not obliged to take care to ensure that the stairs offered as much friction at the nose as possible. It was required to take reasonable care for the safety of users of the stairway. From the evidence of the opponent’s prior usage without incident, and the lack of evidence of other slips or falls, the stairs fulfilled that requirement. From the expert evidence of the friction offered, they met that requirement, and there was no evidence on which it could properly have been found that the surface at the nose of the steps was unreasonably slippery.” 73 In Owners Strata Plan 30889 v Perrine [2002] NSWCA 324 the plaintiff/respondent was injured when she fell down a flight of stairs at the entrance of a Credit Union located at http://www.lawlink.nsw.gov.au/scjudgments/2007nswca.nsf/09da2a0a2a2744...

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Page 19 of 26 Parramatta in a building owned by the appellant/defendant. The primary judge concluded (see [7]) the appellant/defendant had breached its duty of care “[b]y reason of a combination of factors relating to the design of the building, the comparative darkness of the foyer to the brilliant sunshine outside, the same coloured nosing on the steps which made them just that much harder to see on a very sunny day and the lack of a handrail to break the fall…” In reversing the finding of negligence, Santow JA (with whom Sheller JA and Davies AJA agreed) held: “44 The lack of the handrail to break the fall presupposes an obligation to have one. This is when there is no basis for that in Ordinance 70. Moreover, the duty of an occupier of premises is not to make the premises as safe as ‘reasonable care and skill on the part of anyone can make them (Gleeson CJ [sic, this should be Gaudron J] speaking of landlords as a sub-class of occupiers in Jones v Bartlett (2000) 176 ALR 137 at [92] ). Rather it is ‘to take such care as is reasonable in the circumstances; compare Wilkinson v Law Courts Ltd [2001] NSWCA 196 at [21]. Accepting that the Respondent would not have used the stair-rail save as a possible way of breaking her fall, her description of the accident and its suddenness at the first step strongly militates against the possibility that she would have had the opportunity to stop that ‘free fall’ in time; that is by reaching for a railing even if she were close enough to it.” 74 In Francis & Ors v Lewis the respondent/plaintiff slipped when ascending an external fire escape (which was wet from rain), which she had traversed hundreds of times before. The stairway was in commercial premises leased by her employer from the appellants/defendants, the building’s owners. The stairway was steep, consisting of 19 steps without a landing. The top step was three and half metres above the ground. It was made of steel. The left side was adjacent to a wall. There was a handrail on the right side comprising a single rail consisting of a 35mm diameter pipe at a height of 865mm, but the respondent/plaintiff did not have a hold of it when she slipped. When she slipped, she started to fall backwards and down, put out her left hand and grabbed at the step in front of her, but she swung to the right and passed under the handrail. She fell to the concrete below and was injured. Dr Cooke gave evidence, on this occasion for the appellants/defendants, which was accepted by the primary judge that on the basis of the relevant code and ordinance, a mid-rail was not mandatory. Nevertheless, the primary judge found the appellants to have been negligent in failing to make the stairs safe by ensuring that there was a mid-rail, i.e. a second rail approximately halfway between the existing handrail and the stairs. In his Honour’s view “it was foreseeable … that persons such as the plaintiff using the stairs may slip, fall and need a mid-rail to prevent their falling off the stairs and injuring themselves…[t]he risk of injury was neither far-fetched nor fanciful, but in the circumstances it was real [and] [a] mid-handrail was a practical and relatively cheap preventative measure”: see judgment at [5] – [6], [9], [16], [21], [23], [55] per Mason P (with whom Hodgson JA substantially agreed and Tobias JA agreed). There was no debate about the nature of the appellants’ duty of care and the issue of breach was determined in accordance with Wyong Shire Council v Shirt at 47-8: see Mason P (at [39]). Mason P said: “40 Foreseeability of risk of injury is not determinative of breach of duty of care. If, which I doubt, the learned trial judge overlooked this he would have been in error. The duty is one of reasonable care, not

whether safety could have been improved by some modification.

The duty is not confined to one owed to those who are careful for their own safety, but it is relevant to take into account that plaintiffs are themselves expected to act reasonably and take care for their own safety when determining what is reasonable (see generally Phillis v http://www.lawlink.nsw.gov.au/scjudgments/2007nswca.nsf/09da2a0a2a2744...

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Page 20 of 26

Daly

(1988) 15 NSWLR 65 at 74, David Jones Limited v Bates [2001] NSWCA 233, Waverley Municipal Council v Swain [2003] NSWCA 61 at [114]). 41 In recent years, this Court has emphasised that no stairs are perfectly safe and that it is wrong to suggest that a plaintiff who is injured by falling on stairs has prima facie some cause of action (see

Baulkham Hills Shire Council v Pascoe

[1999] NSWCA 431 at [12],

North Sydney Council v Plater

[2002] NSWCA 225 at [43]-[44],

Owners Strata Plan 30889 v Perrine

[2002] NSWCA 324). [His Honour then set out para [32] from Wilkinson v Law Courts Ltd].” 75 The Court dismissed the appeal. Mason P held (at [53]) that the fact the steps were steep, exposed to the elements, had one more riser than the maximum permitted for a fire escape under Ordinance 71 and had no landing “made them inherently dangerous, more so than many stairways encountered in everyday life” and (at [59]) that the gap between the handrail and the stairs was dangerous. He said: “54 It was reasonably foreseeable that persons might slip and fall when ascending or descending these stairs. This could happen in circumstances either involving fault or absence of fault on the part of the user. It was equally foreseeable that some persons using the stairs would be carrying things and thus be impeded in their capacity to hold or grab hold of the handrail. 55 What to my mind was also quite foreseeable was the possibility that, if a person slipped and fell, then he or she might slide off the edge and fall to the concrete below. The gaps between the balustrades spanned six steps in the middle section and five steps at the top. The top step was three and half metres above the floor surface and it was obvious that a person who fell could suffer serious injury. On the Shirt calculus, the risk was ‘real’ (in Sorby DCJ’s words) and the probability of its occurrence was in my view not negligible. 56 There were available and relatively cheap means of avoiding or minimising this risk by providing a mid-handrail or some equivalent barrier.” 76 Similar observations were made by Basten JA in Brock v Hillsdale Bowling & Recreation

Club Ltd

[2007] NSWCA 46 (at [57]). 77 Ahluwalia & Ors v Robinson [2003] NSWCA 175, did not concern a staircase accident, but did concern a visitor to leased residential premises. The respondent/plaintiff was injured when she slipped on water on the floor of the bathroom in premises leased by the father of her son. Her right foot went through a glass shower screen, which shattered causing her substantial injury. The shower screen was not constructed with safety glass, and, it appears (see [9]), was not required to be constructed with such glass when the premises were built. The respondent/plaintiff was present to collect her son who had been on an access visit with his father who rented the premises from the appellants/defendants. The trial judge held (see [11]) that the appellants had breached their duty of care because, having regard to a number of reports by the managing agent of defects in the premises requiring repairs, they should have arranged for an expert inspection of the premises to ensure they were fit for habitation. His Honour also held that on such an inspection, the presence of the annealed glass would have been discovered and, sub silentio, it would have been replaced with safety glass. If it had been the respondent’s http://www.lawlink.nsw.gov.au/scjudgments/2007nswca.nsf/09da2a0a2a2744...

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Page 21 of 26 foot would not have penetrated the glass. In this Court the appellants submitted, on the basis of

Jones v Bartlett,

that a verdict for the appellants was required. 78 The case appears to have been approached on the basis that the landlord’s duty to the respondent was conterminous with that owed to the tenant. Hodgson JA (with whom Sheller JA and Bryson JA agreed) said: “23 In my opinion, Jones v. Bartlett makes it clear that, in the absence of a contract supportive of a higher duty, the duty of a landlord in relation to the safety of premises does not in general require a landlord to commission experts to inspect premises to look for latent defects, nor is it a duty to make premises as safe as reasonable care can make them. In general terms, the duty of the landlord is to be determined by

reference to foreseeable risk of harm and what a reasonable person would do in response to that risk.

” (emphasis added) 79 While his Honour was of the view (at [25]) that “the history of problems with the house suggested by the agents’ file was such that there was a foreseeable risk of injury from faulty electrical wiring and/or a foreseeable risk to health from faulty plumbing and drainage”, so that “reasonable care might have required that there be an inspection by an electrician and/or a plumber to make recommendations as to what should be done to deal with these risks”, he rejected the proposition (referring to Jones v. Bartlett at [19], per Gleeson CJ and to [250] and [251] per Callinan J) “that these foreseeable risks would mean that reasonable care would have required that there be a report obtained from experts in other areas, or a person with general building or architectural expertise.” 80 The different approaches in Jones v Bartlett to the issue of a landlord’s duty of care to a tenant were analysed by Mason P (with whom Brownie AJA agreed) in Sakoua & Anor v

Williams

[2005] NSWCA 405; (2005) 64 NSWLR 588. In that case the respondent/plaintiff brought proceedings against the appellants/defendants, from whom she rented a residential property, after she was injured when she fell down the three front steps of the property. There were three steps in all, with a fourth riser up into the house (see Beazley JA at [42]). The respondent alleged the appellants were negligent in failing to provide safe access to the house and that, inter alia, the absence of a handrail and landing on the stairs made them unsafe. Both parties led expert evidence from which the primary judge concluded, relevantly, the construction of the premises did not involve any breach of the building ordinances that applied at the time of construction. 81 The evidence was that good building practice required that there be a landing and, in the absence of a landing, some other method of ensuring the safety of the steps, such as a railing [and] … that the unsafe condition of the steps was obvious, as a matter of ordinary observation: see Beazley JA (at [65]). The trial judge found the appellants to have been negligent and the respondent to have been guilty of contributory negligence. In his Honour’s view, the front steps of the premises were unsafe for the purpose for which they were to be put, namely the principal means of access to and egress from the premises, that the unsafe nature of the steps was apparent, and was known or should have been known to the appellants who should have realised, if they applied their minds to the question (as, in his Honour’s view, reasonableness required) that the steps were a potential danger: see Beazley JA at [61]. The Court by majority (Beazley JA dissenting) allowed the appeal. 82 Mason P said (at [3]) that Jones v Bartlett established that “the lessor of residential premises owes a duty of care to an incoming tenant (and by extension to the tenant’s visitors) [but that] [t] he scope of that duty was not … formulated in identical terms by their Honours”. He added (at [8]) that “none of the majority reasons extended a landlord’s duty to repair beyond a http://www.lawlink.nsw.gov.au/scjudgments/2007nswca.nsf/09da2a0a2a2744...

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Page 22 of 26 requirement to address defects of which he or she was aware, or ought to be aware [and that] …

each … defined ‘defect’ in this context to mean something more than a condition capable of causing injury

” (emphasis added). His Honour concluded (at [22]): “22 I therefore cannot agree with the trial judge or with Beazley JA (at [61]) that the question to be decided was whether the steps were reasonably safe for the purposes for which they were to be put. In a tort case, such a test appears both to be unhelpful and to contradict the scope of the duty found by the majority in Jones.” 83 His Honour also rejected (at [23]) the proposition that “the ‘obviousness’ of the dangers identified provide a basis for liability” (cf Beazley JA at [63]), saying “[s]uch obviousness was equally apparent to both parties and is not, in itself, a criterion of liability.” He then said: “24 Turning to the facts, I am not persuaded that there was negligence on the landlords’ part. Nothing was established beyond the likelihood

that the stairs could have been safer

. This is not the same as proving unreasonable want of care with respect to defects at the inception of the letting. 25 The stairs were not defective in the sense or senses identified in

Jones

. 26 All stairs are inherently dangerous, especially if traversed by users who (like the respondent) fail to some degree to take reasonable care for their own safety. [His Honour then repeated his remarks in Francis

v Lewis

(at [40]-[41]) set out above and continued]. 27 This stairway only had three steps, with a fourth riser up to the house itself. Its configuration was patent, as regards the absence of a landing and handrail and the differences in the height of risers. … 30 … any factual enquiry as to whether the steps constituted a dangerous defect and/or whether it was unreasonable not to repair them before letting should at least have regard to the history of safe usage. Several of the justices in Jones adverted to the absence of previous accidents as a relevant matter. Nothing in the history of these steps suggested any hidden trap or dangerous defect in the sense discussed in

Jones

. The previous owner knew of no incident or accident over the previous 27 years.” 84 Beazley JA concluded (at [61]) in the passage with which Mason P disagreed, that Jones v

Bartlett

supported the proposition that: “61… a landlord is under an obligation at the time of the commencement of the tenancy to ensure that premises are reasonably safe for the purposes for which they are let. In this case, that required that the steps be reasonably safe. It did not matter for that purpose that the steps were in place at the time that the appellants purchased the premises, or that there was no breach of any building ordinance at the time that they were built.” http://www.lawlink.nsw.gov.au/scjudgments/2007nswca.nsf/09da2a0a2a2744...

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Page 23 of 26 85 Her Honour concluded that the primary judge’s finding that “the steps were obviously dangerous … was open to him on the evidence” and no basis had been shown as to why it should be disturbed. In her Honour’s view (at [66]) the fact that there had been no known prior accident on the steps did not assist the appellant. 86 The foregoing analysis reveals that in Ahluwalia & Ors v Robinson, the only authority in this Court decided since Jones v Bartlett which concerned a landlord’s duty of care to a visitor to leased residential premises, no distinction was drawn between the duty owed to a tenant and that owed to a visitor. In Hodgson JA’s view the ambit of the landlord’s duty of care was to be determined by reference to foreseeable risk of harm and what a reasonable person would do in response to that risk. Sakoua concerned a tenant plaintiff and, to the extent Mason P opined that

Jones v Bartlett

was authority concerning the nature of the lessor’s duty to the tenant “and, by extension to the tenant’s visitors”, his remarks were obiter. His Honour did not refer to Gummow and Hayne JJ’s remarks about a landlord’s duty of care to a visitor to leased residential premises. 87 My researches do not reveal any decision of this Court in which Gummow and Hayne JJ’s views about a landlord’s duty of care to a visitor to leased residential premises have been accepted as authoritative. Accordingly, in my view the appellant’s submission that this Court should hold that its duty to the respondent was confined in the manner outlined by their Honours should not be accepted. Rather, in my view, the case should be approached on the basis agreed before the primary judge which, as I understand the authorities applied the duty of care which has been found to apply as between landlord and tenant. 88 On that basis the appellant owed a duty to the respondent to take reasonable care to avoid foreseeable risk of injury, but did not have to make the premises as safe as reasonable care could make them (observing that the latter phrase appears to have been intended to adopt Gaudron J’s test (Jones v Bartlett (at [92])) that “the occupier of premises is only required to take such care as is reasonable in the circumstances” and “a landlord should not be subjected to a higher duty to make premises as safe for residential use as reasonable care and skill on the part of anyone can make them”, a test applied in this Court in Wilkinson v Law Courts Ltd and Owners Strata

Plan 30889 v Perrine

. 89 I have earlier recorded the primary judge’s conclusions on the issue of breach. Allowing for the slight confusion identified as between submissions and conclusions, it is apparent that his conclusion of breach turned on the fact the risk of injury was foreseeable and his acceptance of Dr Cooke’s opinion that the porch and steps could have been safer. That, as the foregoing discussion reveals, is not a sufficient basis for a finding of breach. 90 Photographs of the porch and stairs in evidence at trial indicate an unremarkable configuration of a small porch (its dimensions were not in evidence) and three steps. Neither the porch nor the stairs were defective per se. As the primary judge held, it was not the condition of the stairs which caused Ms Hume to fall, nor, I would add, was it the condition of the porch where Ms Hume appears to have been when her knee dislocated. 91 It might be accepted, as the primary judge held, that Ms Hume would not have fallen had there been a handrail either along the porch or down the steps. It might also be accepted that it was foreseeable that in the absence of a handrail a person who fell off either the porch or down the steps might be injured. The appellant did not need the imprecise complaints of Ms Slade’s complaint about Ms McKay’s fall to be aware of that risk. It was a matter of commonsense. However failure to eliminate a risk that was reasonably foreseeable and preventable is not necessarily negligence. It is necessary to determine what was a reasonable response to that risk:

Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd

[2002] HCA 35; (2002) 211 CLR 317 at [99] per McHugh J. http://www.lawlink.nsw.gov.au/scjudgments/2007nswca.nsf/09da2a0a2a2744...

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Page 24 of 26 92 The primary judge appears to have drawn comfort in reaching his conclusion that the appellant had breached its duty of care from the “previous incidents” which had been notified to the appellant, even though he had concluded that the evidence concerning them was “imprecise and unclear as to the cause and the nature of those falls”. The evidence concerning those falls entirely justified his Honour’s description. Even though Ms Slade thought her friend had been “just bruised”, she did not say she advised Mr Mills of that fact, nor that she had notified him that anybody had suffered injury in a fall from her porch. Further there was no evidence to support the primary judge’s finding that the appellant agreed to undertake work at the premises after Ms Slade’s calls. The highest the evidence reached was that Mr Mills said he “was still looking into it”. 93 In my view the evidence concerning prior incidents did not alert the appellant to any defect in the porch or stairs which attracted an obligation on its part to erect a handrail. While I accept that in several of the cases in this Court evidence of prior use without incident has been regarded as relevant, although not determinative, evidence of prior complaints attended by the imprecision in this case did not attract any obligation on the appellant’s part to respond by erecting a handrail. The porch and stairs were no more or less inherently dangerous than any such structures or the many other dangers in premises. There is no doubt they could have been made safer but that does not mean they were dangerous or defective: see Jones v Bartlett (at [24] per Gleeson CJ; Baulkham Hills Shire Council v Pascoe t [11] per Brownie AJA;

Wilkinson v Law Courts

Ltd at [32] per Heydon JA; Sakoua & Anor v Williams at [24] per Mason P. 94 As the primary judge recognised, the fact that a handrail was erected after Ms Hume’s fall does not demonstrate the appellant was negligent: NSW Land & Housing Corporation v Watkins [2002] NSWCA 19 at [78]; (2002) Aust Torts Reports ¶81-641. 95 The circumstances of this accident were highly unusual, but, as the primary judge recognised, not so much as to be described as far-fetched or fanciful: cf Wyong Shire Council v

Shirt

(at 47-48). There was a risk, albeit probably a low one, that a person whose hands were full whether because carrying a child, shopping or some other household items, might stumble and fall on either the porch or steps and be injured because there was no handrail to break the fall. That risk was one of the many encountered in domestic premises, which, as has been frequently emphasised, are not “risk-free”: Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 at [36]. As Gleeson CJ said in Jones v Bartlett (at [23]: “[23] There is no such thing as absolute safety. All residential premises contain hazards to their occupants and to visitors. Most dwelling houses could be made safer, if safety were the only consideration. The fact that a house could be made safer does not mean it is dangerous or defective. Safety standards imposed by legislation or regulation recognise a need to balance safety with other factors, including cost, convenience, aesthetics and practicality. The standards in force at the time of the lease reflect this. They did not require thicker or tougher glass to be put into the door that caused the injury unless, for some reason, the glass had to be replaced. That, it is true, is merely the way the standards were framed, and it does not pre-empt the common law. But it reflects common sense.” 96 In the present case the building standards in force over the relevant period Ms Slade occupied the premises did not require a handrail along either the porch or down the steps. As Gleeson CJ observed, this is not determinative of the issue of breach, but it reflects what, in my view, the reasonable person would have regarded as a reasonable response to the risk posed by the porch and steps: Jones v Bartlett (at [58]) per Gleeson CJ. http://www.lawlink.nsw.gov.au/scjudgments/2007nswca.nsf/09da2a0a2a2744...

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Page 25 of 26 97 The respondent sought to rely upon Sheridan & Anor v Borgmeyer [2006] NSWCA 201 to support the proposition that it was negligent for the appellant not to have erected a handrail to guard the porch. In that case a shearer was injured when he fell off a platform about 0.8 metres high. The immediate cause of his fall was that he was tugging on a malfunctioning harness which gave way suddenly causing him to go backwards and fall over the edge of the platform. The appellants were sued as occupiers of the premises. The trial judge found that the appellants were negligent on the basis that a reasonably prudent occupier, in their position, would have placed a guardrail around the platform, upon which the respondent was carrying out the shearing work: see judgment at [3]. The evidence was that there was a “frantic working pace … in a busy shearing shed”: see judgment at [9], [48]. The first appellant recognised the risk of someone falling from the platform and sustaining injury and had previously placed a guardrail around the platform. He had not replaced it when he was rebuilding the shed after a fire because the shearers were hitting their heads on the guardrail when shearing: judgment at [17]. Beazley JA (with whom Santow and Tobias JJA agreed) said in her ex tempore judgment (at [18]) dismissing the appeal, applying Wyong Shire Council v Shirt, that the provision of a guardrail was both “a reasonable response” to the foreseeable risk of injury from falling from a platform 0.8 metres high, and “it was in fact dictated by … Australian Standard 1657-1985”. Tobias JA (who while agreeing with her Honour, made some additional comments) described the Standard as follows (at [49]): “… the Australian Standard required in relation to a raised working area such as a shearing board that it have a guardrail around its edge unless it is at a level not greater than 300 millimetres above the adjacent floor. That guardrail is required by cl 3.2.1.1 of the Australian Standard to be continuous around the sides and ends of the platform except at points of access from the stairway. The design of such a guardrail is to be such that at the very minimum the top rail should be supported by posts and parallel to the floor at a vertical height of not less than 900 millimetres above the edge of the raised platform.” 98 While the Australian Standard was not binding, the trial judge took it into account in determining whether or not there had been a breach of duty. The Court concluded it was open to his Honour to do so: judgment at [18]. There was no discussion in the case about the nature of the duty the appellants owed to the respondent. He had alleged the appellants were negligent in failing to provide a safe place of work: see [2]. On the assumption that the duty of care relied upon was, nevertheless, that owed by an occupier to an entrant (rather than that of employer vis à-vis de facto employer), the fact that the respondent was working on an elevated platform in an industry which worked “at a frantic pace” was clearly relevant to the question of whether the appellants had breached their duty of care as, of course, too was the Australian Standard.

Sheridan

does not, in my view, support the proposition that the appellant was under a duty to provide a handrail to guard a porch used for everyday passage. 99 In my view the primary judge erred in concluding the appellant breached its duty of care to the respondent and the appeal should be allowed. 100 Although the proceedings brought by the first respondent in 1998 in the District Court named the New South Wales Department of Housing as the first defendant, the Department is not a legal entity. If the landlord of the premises was the New South Wales Land and Housing Corporation, it could have been sued as a statutory body in its own right: see Housing Act 1985, s 6. In the alternative, the proceedings should have been brought against the State of New South Wales, pursuant to the Crown Proceedings Act 1988, s 5. Although no issue was raised as to this matter at any stage in the course of the appeal, the appellant should have leave to correct the name of the proceedings, if it thinks fit, before entering judgment. http://www.lawlink.nsw.gov.au/scjudgments/2007nswca.nsf/09da2a0a2a2744...

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Page 26 of 26 101 Finally, it is pertinent to make some observations about the approach taken to the appeal by the second respondent, the South Western Sydney Area Health Service. When the matter was called on for hearing Mr R H Weinstein announced his appearance for that party, but informed the Court that he did not intend to make any submissions about the substantive issues in the appeal and that the second respondent would bear its costs of its appearance. The appellant had not joined the second respondent as a party to the appeal in its first Notice of Appeal, but did so in a further amended Notice of Appeal at the second respondent’s behest. Notwithstanding that joinder, the second respondent did not have, nor had it apparently sought, a copy of the appeal books and had taken no active part in the appeal. Mr Weinstein informed the Court the second respondent was present because it had an interest in the outcome of the proceedings and that it was to its advantage to that end to hear the argument in the case. Even if that be accepted, there was nothing the second respondent could have usefully gained in that respect which could not have been achieved by its legal representative sitting in Court, rather than being joined as a party. The only parties to an appeal should be those affected by the relief sought by a notice of appeal or interested in maintaining the decision under appeal: Pt 51 r 9 Supreme Court Rules 1970. 102 I propose the following orders: 1. Grant leave to appeal. 2. Appeal allowed. 3. Verdict for the plaintiff in the District Court set aside and in lieu thereof order that there be judgment for the first defendant against the plaintiff. 4. The plaintiff pay the first defendant’s costs in the District Court. 5. The First Respondent pay the Appellant’s costs in this Court and have a certificate under the Suitors Fund Act 1951 in respect thereof. 103 BASTEN JA I agree with the orders proposed by McColl JA and with her Honour’s reasons. **********

Amendments

22/05/2007 - Date of hearing: 16 October 2006 - Paragraph(s) front cover sheet

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200706071639110.NSW Dept Housing v Hume bhnf Donna Hume

New South Wales Court of Appeal

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New South Wales Court of Appeal

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