New South Wales Court of Appeal CITATION : Taber v NSW Land and Housing Corporation [2001] NSWCA 182 FILE NUMBER(S) : CA 40889/00 HEARING DATE(S) : 8 June 2001 JUDGMENT DATE : 19 June 2001 PARTIES : Colette Taber v NSW Land and Housing Corporation JUDGMENT OF : Heydon JA at 1; Ipp AJA at 2; Rolfe AJA at 3 LOWER COURT JURISDICTION : District Court LOWER COURT DC 3994/98 FILE NUMBER(S) : LOWER COURT Bowden ADCJ JUDICIAL OFFICER : COUNSEL : Appellant - A.J. Morrison SC / R.I. Goodridge Respondent - A. Katzmann SC / J. Springthorpe SOLICITORS : Appellant - Firths The Compensation Lawyers Respondent - McCabes, Lawyers CATCHWORDS : Negligence - duty of care - causation - personal injury - leased premises. LEGISLATION CITED : Evidence Act 1995 (NSW) ss 55(1), 78 Chappel v Hart (1988) 195 CLR 332 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 CASES CITED: Jones v Bartlett (2000) 75 ALJR 1, 176 ALR 137 Northern Sandblasting Pty Limited v Harris (1997) 188 CLR 313 Phillis v Daly (1988) 15 NSWLR 65 DECISION : Appeal dismissed with costs. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40889/00 DC 3994/98 HEYDON JA IPP AJA ROLFE AJA Tuesday, 19 June 2001 TABER v NSW LAND & HOUSING CORPORATION Negligence - Duty of Care - Causation - Personal Injury - Leased premises - whether failure to install handrail on uneven stairs constituted breach of duty - whether failure to install a handrail on stairs was causative of the injury suffered. The appellant was carrying a basket of laundry down a set of four steps at the back of the house she was renting from the respondent housing authority when she overstepped the bottom step, fracturing her ankle. The appellant sued the respondent in negligence, alleging that the respondent owed her a duty of care to provide safe steps. The appellant claimed that the stairs were unsafe because they did not comply with the building code in terms of consistency of depth as between the steps, and no handrail was in place. The appellant relied in particular on a number of factors. The respondent knew of the medical condition which caused the appellant difficulty in climbing steps. The appellant had, before her accident, requested that a handrail be installed, and a handrail had previously been in place on the steps. The respondent's case at trial was that the appellant fell because her foot was not properly positioned on the step, and it would not have made a difference if there had been a handrail. The trial judge found that the respondent was not in breach of its duty to the appellant by not installing a handrail, and that the accident did not occur because of the absence of a handrail. The appellant claimed that the trial judge erred in finding there was no breach. The respondent submitted that the failure to install a handrail did not amount to a breach. The respondent sought leave to file a notice of contention containing the following grounds:- 1. that it had not breached its duty because the stairs were installed by an independent contractor, and the respondent's duty was discharged by the hiring of a competent contractor; and 2. that even if there had been a breach by providing stairs of uneven depth, this breach was not causative of the appellant's injuries. The appellant objected to the first but not to the second ground of the notice of contention. HELD: (per Rolfe AJA, Heydon JA and Ipp AJA agreeing) 1. The respondent was not allowed to raise the point concerning the independent contractor. Such a claim should have been specifically pleaded at trial and a general denial of negligence was insufficient to put the appellant on notice of this claim, or to enable it to be dealt with at an evidentiary level. 2. Although the trial judge was in error in stating that the appellant conceded she would have fallen even if there had been a handrail, his finding that the accident would have occurred even if there was a handrail was also based on his view of the evidence as to how the fall occurred. For this reason, the error as to the concession did not infect the further findings. 3. A landlord owes a duty to a tenant to keep the premises in reasonable repair. However this does not mean that the landlord must make the premises as safe as they can possibly be - Jones v Bartlett (2000) 75 ALJR 1, 176 ALR 137 discussed. 4. In all the circumstances, the respondent did not breach its duty to the appellant by not installing a handrail. The steps were obvious, and the action of the appellant in missing the final step was very careless. 5. A number of issues going to the question of causation were also considered. The trial judge was correct in allowing the appellant to answer a question in cross examination as to whether she would have fallen even had the step been the correct depth. This evidence was both relevant and fell within s78 of the Evidence Act 1995 (NSW). 6. The appellant sought to rely upon her answer to the question, posed during re-examination, of whether she would have fallen if there was a handrail. However, even if the appellant would, as suggested, have been using the handrail, in the circumstances this was unlikely to have prevented or substantially decreased the severity of her fall. It follows that, even if breach by the respondent had been established, this breach was not causative of the appellant's fall. ORDERS Appeal dismissed with costs. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40889/00 DC 3994/98 HEYDON JA IPP AJA ROLFE AJA Tuesday, 19 June 2001 TABER v NSW LAND & HOUSING CORPORATION JUDGMENT 1 HEYDON JA: I agree with Rolfe AJA. 2 IPP AJA: I agree with Rolfe AJA. 3 ROLFE AJA: Introduction . The plaintiff/appellant, Mrs Colette Taber, for whom Dr A.S. Morrison of Senior Counsel and Mr R.I. Goodrich of Counsel appeared on the appeal but not at first instance, brought proceedings in the District Court against the defendant/respondent NSW Land & Housing Corporation, for which Ms A. Katzmann of Senior Counsel and Mr J. Springthorpe of Counsel appeared. Ms Katzmann did not appear at the trial, which was conducted on behalf of the respondent by Mr Springthorpe. 4 The appellant's claim, to which I shall refer in some detail in a moment, was heard in the District Court by Bowden ADCJ and, on 27 October 2000, his Honour ordered a verdict for the respondent. He made no other findings such as on the issues of contributory negligence and damages, which may have been helpful in finally resolving the litigation if this Court were of the view that his primary finding was in error. 5 Prior to 27 December 1995, the appellant, who was born on 11 November 1956, resided with her three children in premises she rented from the respondent. She applied for priority rehousing on the basis that she suffered from sciatica and left knee ligament injury, such that she was unable, at times, to clean the upstairs of the house, and she had:- "Inability to climb or descend stairs more than 5 times a day. With 3 asthmatic children, one chronic during attacks it is unbearable to use stairs 20-30 times a day for changes & medication. My doctor's advice is to have a house with no internal stairs". 6 Consideration was given to the appellant's claim, principally by Mr G.K. Ferguson, a senior client service officer with the Department of Housing at its Macquarie Fields office. The result was that the appellant was offered accommodation at 26 Rosewood Drive, Macquarie Fields at a weekly rent of $155 commencing from 25 December 1995. She entered into a Residential Tenancy Agreement with the respondent on 21 December 1995 and moved into the premises on 27 December 1995. 7 Clause 11 of that Agreement provided:- "The landlord agrees:- 11.1 to make sure the residential premises are reasonably clean and fit to live in; and 11.2 to keep the premises in reasonable repair, considering the age of, the amount of rent paid for and the prospective life of the premises." 8 There was a patio at the rear of the premises, which gave access to the back yard in which the clothes line was erected. The patio was about four feet above ground level and, at some time prior to the appellant's taking possession, a set of steps from it to the back yard and a handrail on the lefthand side of those steps as one descended had been removed, presumably in consequence of a theft. The appellant requested the respondent to replace the steps and his Honour was satisfied that she made enquiries about the installation of a handrail on the same side as it had previously been. It was not suggested that there should have been a handrail on the other side. 9 On or about 3 January 1996, the respondent caused a set of four pre-cast concrete steps to be placed in position at the edge of the patio. No handrail was provided. 10 The steps, it was conceded, failed to comply with a building code, which it was accepted at trial was relevant, in various respects. Relevantly for present purposes the bottom step failed to comply with the code in that its depth, i.e., the width of the tread, was 25 millimetres (one inch) less than the code required. In the circumstances of this case the other breaches of the code in relation to the steps are, in my opinion, irrelevant. The failure to install the handrail did not constitute a breach of any code. 11 The appellant used the steps from about 3 January 1996 until 24 February 1996. At about 1 pm on 24 February 1996, she approached them carrying a heavy duty plastic washing basket, which was filled with wet clothes. She described that she was carrying the basket by resting it partly on her right hip with her right arm over the top of it. Her left hand was "up the front near the bottom" of the basket and was not taking any weight "... it was just like a guide, most of the weight was on my right". 12 The appellant's obvious intention was to descend the steps and hang out her washing. She said she was looking where she was going down the steps and that she stepped off the patio with her right foot on to the first or topmost step. She then put her left foot on the second step and her right foot on the third. She gave no evidence of any defect in the steps, to that point, causing her to lose her balance or to become unstable. What happened thereafter is, perhaps, best described by a short passage from her evidence in chief, Black AB p 20:- "Q. It was your intention to place your left on to the fourth step? A. Yes on the fourth step. Q. And as you were progressing down the stairs as you've described, where you were looking (sic)? A. Where I was going down the stairs. Q. Still holding the basket in the manner you've described? A. Yes. Q. Now as you went to take that step on to the bottom step with your left foot, what happened? A. My foot missed the step and I felt it going down on to the footpath and I felt a scratch on the back as my foot was going down and then it hit the footpath and I went over on to the ground". No other person witnessed the incident. 13 The second question I have quoted should, obviously enough, read at the end:- "... where were you looking?" The appellant, from her answer, understood this. 14 What had happened, clearly enough, was that notwithstanding her familiarity with the steps; the fact that she intended to put her left foot on the bottom step; and that she was keeping a proper lookout, she simply overstepped the bottom step and, thereby, caused herself to land heavily on the ground on her left foot and to overbalance. In the result she fractured her left ankle. 15 There was an issue at trial as to whether her left foot missed the bottom step completely, or whether she grazed the back of her left heel on its edge. In my opinion, it does not matter because she agreed that if the additional 25 millimetres had been in place and her heel had struck that, it would have been insufficient to enable her to remain stable: Black AB p 53:- "Q. When you descend stairs the normal thing to do is to put the majority of your foot on the stair tread isn't it? A. Yes. Q. Otherwise you'd just topple forward. In fact anything back from about the ball of your foot, protruding past the stair you're unstable aren't you? A. Yes". 16 These two questions were asked in cross-examination and established, in my opinion, that even if the appellant had put her heel on the missing 25 millimetres, she would have become unstable and toppled forward. Her evidence was that she was wearing soft, flat soled shoes. 17 The appellant's evidence in chief, after describing how the accident occurred, continued that there was no handrail in position and, Black AB p 21, she was asked:- "Q. Now if there'd been one? A. I would have used it. Q. Well how would you have done that? A. The same, carrying the washing like that, in this hand. Q. With the left hand? A. With the left hand. Q. Could you have done that? A. Yes I could. Q. And would you have done that? A. Yes I would have". 18 The appellant said that prior to her accident she had negotiated the steps, which felt "awkward walking" in the sense that there were "different widths on the way down". She said that this knowledge caused her to be very careful going up and down. 19 I have referred to two questions and answers the appellant gave in cross-examination in par 13. It is now necessary to set out the evidence, which was given immediately thereafter:- "Q. And you're quite likely to fall forward. Let's assume that this step had an extra 25 millimetres to it, an extra inch, the most likely scenario is, is it not, that even had you made contact with that extra inch - let's even assume that you made contact with a full extra inch you would have fallen in any event wouldn't you? (Objection. Question allowed.) WITNESS: Would you repeat the question please? Q. I can't remember the exact question, but what I am putting to you is that basically if we assume that you had made contact with the heel of your left foot with the whole of the extra inch that may have been on this stair then you would have fallen in any event, you couldn't have not fallen, that's what I am putting to you? A. I probably would have fallen -- Q. You probably would have? A. - - but I wouldn't have broken anything. Q. You wouldn't have? A. Broken any bones. Q. Well you don't know do you? A. No. A twisted ankle. Q. Well that's just mere speculation isn't it? FIRTH: That's what your question called for. SPRINGTHORPE: I wasn't asking about the injury. FIRTH: That was my objection. SPRINGTHORPE: Q. In any event what I am putting to you is that even if the extra inch had been there you would have fallen, you agree with that? A. Yes. Q. That's assuming of course that you made contact with the full inch. The fact is you completely missed the step and the back of your leg didn't graze the step at all did it? A. Yes it did. I didn't miss it by that much. Q. Missed by what? A. I did not miss it by that much. Q. Well how much do you think you missed it by? A. I don't know - half an inch. Q. Half an inch. How is it that you missed it at all if you were watching where you were going? A. That particular step wasn't as long as the others. Q. No but you've just acknowledged that it's very difficult - well you can't balance going downstairs unless you've got the majority of the ball of your foot on the stair surface. So you missed nearly by the length of your foot? A. It just wasn't there when I put my foot down. Q. So we can assume from that can't we that you weren't looking where you were putting your feet? A. I was looking where I was going. Q. Well then why did you decide to put your foot out that far ahead of you if you're looking where your putting your feet? A. I walked down the way I normally walked down. Q. What did you normally miss the bottom step? A. No I did not normally miss the bottom step". 20 No objection was taken to the first two questions at Black AB p53, which I have quoted. Objection was taken to the next question and the issue of its admissibility is one which must be decided on this appeal. 21 The appellant was not cross-examined about her evidence in chief that had a handrail been in position she would have used it. 22 In re-examination, Black AB p 56, the appellant gave the following evidence:- "Q. The last question Mrs Taber concerns that question you were asked about whether you would have fallen anyway if there was an extra inch on the step, do you remember that? A. Yes I do. Q. And the answer you gave was, I would have but I wouldn't have broken any bones. Do you remember that answer? A. Yes I do. Q. Could you explain why you gave that answer? A. My foot wouldn't have come from this height straight down on to the ground. It would have connected with the step. Q. In that same vein, I want you to assume that there was a handrail there, do you think you would have fallen in that situation? A. No I wouldn't. I would have been using the handrail". This evidence was given without any objection. The Appellant's Case 23 The appellant's case, both at trial and on appeal, was that the respondent owed her a duty of care to provide safe steps. I think that overstated the duty. It was submitted that this duty had to be considered against the background of the appellant's medical condition as known to the respondent, including her difficulty with steps; her request for a handrail to be placed in position, which would have cost about $150; a drawing of steps, which appears at Blue AB p 72, and obviously contemplates the existence of a handrail; the deficiencies, when measured against the building code of the steps; and the failure, in all the circumstances, to have a handrail in position. She also relied on the fact that previously a handrail had been provided. 24 The respondent's reply to this case was that it did not owe the appellant a duty to install a handrail, and that she fell because her left foot, for some inexplicable reason, was not placed properly on the bottom step. This caused her to lose her balance, it mattering not whether she completely overstepped the bottom step or grazed her heel on it for present purposes. In these circumstances, so it was submitted, the existence of a handrail would not have made any difference. The Trial Judge's Reasons . 25 His Honour set out the essential facts and the various bases on which the claim was made, noting, RAB p 15 that the appellant's case "was based mainly on the fact that there was no handrail in place". He considered the legal question as to the applicable duty of care and, RAB p 18, noted that there was no suggestion by the respondent that it had delegated any duty in relation to the construction of the steps. He also said that there was no issue as to a liability in relation to a non-delegable duty. 26 At RAB p 21 his Honour referred to the appellant's evidence that there should have been a handrail and to the submission that this was made both as a general proposition and was a requirement heightened because of the respondent's knowledge that she had difficulty with steps. He found she had made enquiries about such an installation, although she was not, prior to the accident, promised a handrail. His Honour was of the view that her difficulty with stairs would not, of itself:- "... alert a reasonable person in the defendant's position to a special requirement for a rail to a short set of external stairs when no rail was required by any code". (RAB p 22.) 27 His Honour then turned to the steps and referred to the appellant's evidence that after the handrail was installed she could hold it with her left hand, which she did. He thought that evidence was somewhat surprising in the light of her evidence that she was unable to do any washing, and continued:- "The plaintiff conceded that she probably would have fallen, even if there had been a handrail, but that the accident would not have been as severe. I find no evidence to support such a proposition and in particular I rejected from the evidence the statement to that effect in Mr McLennan's report". 28 His Honour was in error in stating that the appellant said that she did no washing and, perhaps more significantly, in saying that she made that concession. The evidence to which he was referring was, clearly enough, that given in answer to the question to which objection was taken and those following it at Black AB p 53. However, the plaintiff was not cross-examined about what she would have done if a handrail had been installed, and the evidence at pp 53-54 was not predicated on an assumption that there was a handrail. 29 If the matter had rested there, I would have formed the conclusion based on the error about the concession, but not the washing, that his Honour had proceeded on an erroneous basis and that his further findings were infected with that error. 30 Whilst on this passage, I think it appropriate to state that in my opinion his finding of an absence of evidence was confined to an absence of evidence to support the proposition "that the accident would not have been as severe". 31 His Honour stated in two ways how he considered the accident happened. At RAB pp 23-24, he said:- "The accident occurred not because of a breaking or tipping movement of a step, but from the fact that the plaintiff completely missed the bottom step. She gave evidence that she grazed her heel. This led to the proposition that she only just missed the step and that the cause was the fact that the step was 25 millimetres less in depth from the one above it. I am not satisfied on the plaintiff's evidence that such was the case. In any event, as was conceded, if the step had been 25 millimetres deeper her heel would have come down so close to the edge that a fall would have been inevitable. Again I am not satisfied that the result would necessarily have been any less severe." 32 At RAB pp 25-26, his Honour said:- "I find that the accident occurred not because there was no handrail and not because the bottom step had a tread depth of 25 millimetres less than the one above it, and not because the top step was wider than the others. I find that the accident happened because the plaintiff missed putting her foot on the bottom step. She knew about the steps, she negotiated them often, she could see them, nothing tipped or moved". 33 His Honour was, therefore, satisfied that the accident did not occur because of the absence of a handrail. 34 His Honour then discussed the appellant's case based on the necessity to install a handrail. He posed the question whether the defendant was reasonably required to do so, and found that it was not in breach of its duty in not doing so. His reasons for this conclusion appear at RAB p 25:- "In deciding this I take into account the magnitude of the risk, its degree of probability and other relevant factors which include the fact that the risk is ordinary and that it is obvious. Stairs in a sense are dangerous and the danger is obvious. There is always the possibility of someone missing footing and stumbling. No doubt that is why there is a requirement that stairs over a certain height should have a rail. These steps were used by the plaintiff for nearly eight weeks. She had not complained about the stairs themselves. The situation was obvious". The Issues Raised on Appeal . 35 The appellant, as I have stated, asserted that in all the circumstances there was a duty on the respondent to install a handrail. She submitted that it was this failure, combined with the various facts to which I have referred, which imposed the duty in this particular case. The respondent's reply was that the failure to install a handrail did not constitute a breach of the leasing contract or of duty at common law and, in any event, if there was a breach of duty it was not causative of the accident, the cause arising from the appellant's failing to put her foot properly on the bottom step. 36 The respondent sought leave to file a notice of contention containing the two following grounds:- "1. The Respondent did not breach its duty of care to the Appellant because the stairs were installed by an independent contractor and the duty of the Respondent was discharged by the hiring of a competent contractor. 2. Alternatively, even if the Respondent breached its duty of care to the Appellant in providing stair treads of uneven depth, there was no causal connection between such a breach and the Appellant's injury". 37 Dr Morrison objected to the first ground on the basis that this had never been a matter in issue at the trial and the appellant was thereby prejudiced because evidence may well have been called in relation to that issue. Ms Katzmann responded that the respondent had denied negligence and that this denial, in some way, was sufficient to alert the appellant to an argument that the respondent had delegated its duties to a competent independent contractor, which was therefore liable to the appellant, and in circumstances where the respondent was not. 38 Dr Morrison raised no objection to the second ground. 39 The Court stated that it would deal with the appellant's objection to the first ground in its reasons. In my opinion, the respondent ought not to be allowed to raise the first ground. There was no such issue before his Honour and the appellant should not have been expected to divine that such an issue would be raised by a denial of negligence. It was an issue which should have been specifically pleaded by way of defence, as a matter of fairness, to put the appellant on notice of it and to enable it to be dealt with at an evidentiary level: District Court Rule 9(9)(2). However, it was never raised, and his Honour was of the view that it was not a matter in issue. The Duty of Care . 40 The duty of care owed by a landlord to a tenant was considered in detail by the High Court of Australian in Northern Sandblasting Pty Limited v Harris (1997) 188 CLR 313, albeit in a case involving a defect. In view of the High Court's analysis of and remarks concerning that decision in Jones v Bartlett (2000) 75 ALJR 1, 176 ALR 137, I think it preferable to turn to that case immediately. The facts were that the appellant, who was the son of tenants of a residential property, suffered injury by putting his knee through an internal glass door of the property. The glass in the door complied with the building standards and regulations at the time of its construction, although the glass did not comply with newer standards which would have been applicable had the house been constructed immediately prior to entry into the lease. At first instance it was found that the accident occurred because the appellant, who had been living in the house with his parents for about four months, walked into the door without looking to see whether it was open or closed. The alleged negligence or breach of contractual duty was stated to be the failure to have an expert inspect the premises before they were let, and the failure to have the glass in the door replaced with thicker glass, which would have complied with the more up to date safety standards. It was also found, at first instance, that the costs of replacing the door would have been cheap relative to the risk of the danger and the potential gravity of injury, and that the defendants were negligent by failing to have the premises adequately inspected for safety prior to allowing the plaintiff's parents into possession, on the basis that it was likely that such an inspection would have resulted in the state of the glass door being brought to the defendants' attention in which case they should have known that its present state gave rise to serious danger and replaced it with a door that complied with the safety standard at the time. The Full Court of the Supreme Court of Western Australia reversed that decision. 41 In the Full Court the leading judgment was delivered by Murray J. Portion of it is set out in the judgment of Gleeson CJ at par 18. Murray J expressed the view that in the circumstances established at trial there was a very remote prospect of a collision between a person and the glass in the door, although once that occurred the risk of injury was substantial:- "... there was no danger that would occur without such a collision, or when the door was used normally. Certainly it was, on the evidence, a well trafficked area allowing access between the interior of the house and the backyard, but the door was positioned so that it could be clearly seen and the fact that it was made of glass in a wide wooden frame clearly observed. The handle was readily accessible. It formed no trap to the ordinary user of the door, particularly not to an adult". 42 Gleeson CJ, at pars 19 and 20 said:- "(19) The conclusion that the respondents were not negligent in failing to have the door expertly assessed at the time of the lease, is, in one respect, expressed in terms which are unduly favourable to the appellant. As was noted above, if there were to be an expert assessment at the time of the lease, there is no reason why it would have been restricted to an assessment of the glass door in question. 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 on to the premises or, at least, the prospective tenants and members of their households, should have been the subject of expert assessment. The glass door had been there for thirty years without causing any harm. It was an ordinary door, constructed in accordance with building practice and standards at the time when the house was built. There was no reason why it would have been the focus of special attention. (20) Having reached that conclusion, it was unnecessary for Murray J to go on to deal with the finding at first instance that, if there had been such an assessment, there would have been a recommendation to replace the glass in the door. It has already been pointed out that there was no evidence to justify that finding. It also suffers from the defect of involving unjustifiable ex post facto concentration on the door". 43 His Honour then proceeded to a consideration of the case and referred to the difference between English and Australian common law in relation to the obligation to a tenant, noting, in relation to Northern Sandblasting, that the extent of the difference "was not made completely clear". He also observed that Northern Sandblasting was a case in relation to "defects". 44 In pars 22 and 23, his Honour continued:- "(22) In the present case, we are not concerned with a dwelling house that was dilapidated or tumble-down, or that contained negligently installed and dangerous electrical wiring. There was nothing about the premises that alerted, or should have alerted, the owners to any unusual danger. The premises were constructed in accordance with the standards prevailing at the time, and, were adequately maintained. (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 the 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". 45 His Honour nextly quoted from the decision of Mahoney JA in Phillis v Daly (1988) 15 NSWLR 65 at 74, where his Honour said:- "There are dangers on any premises. A room may have a desk or a table. There is a danger that if I fall, I will hit my head on it and my skull will be fractured. If the desk or table were not there, I would suffer little or no harm. And the danger is obvious: people do slip and fall. And the injury may be serious. But the obvious foreseeability of such an injury and its seriousness does not involve that, if a person falls and hits his head on a table, there must have been a breach of duty by the occupier of the room. And this notwithstanding that people may live without tables and that tables may be easily removed". 46 Gleeson CJ said:- "(25) It is interesting, and not without relevance, to speculate about how many objects in and around an ordinary dwelling house would constitute a potential hazard to a person who behaved as carelessly as the appellant . (26) I do not accept that the condition of the respondent's premises was shown to be defective in any relevant sense". (My emphasis.) 47 At par 90, Gaudron J said:- "For the appellant to succeed in this case, there must now be recognised a duty on the part of 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 can make them. And it must also be held that it is reasonable, at least in the circumstances of this case, to replace items which, though not defective, involve a foreseeable risk of injury if safer items are available". 48 Her Honour was of the view, par 92, that:- "As 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 . And given that the parties to a tenancy can stipulate as to its terms, there is no reason, in my view, why the duty of landlord should extend beyond a duty to put and keep the premises in safe repair". (My emphasis.) 49 McHugh J, par 100, said:- "The common law duty of care owed by a landlord to a tenant and other members of the tenant's household is to take reasonable care to avoid foreseeable risks of harm to those persons having regard to all the circumstances of the case. The duty extends to dangerous defects but is not limited to them." 50 In par 101, his Honour continued:- "Among the relevant circumstances that generate the standard of care owed by the landlord are the right or capacity of the landlord to inspect the premises, the age and condition of the premises, the ages and the physical and mental capacities of persons who will use them, the use to which they will be put, the nature and degree of the risk of injury and the cost or inconvenience of eliminating that risk. As in other areas of the law of negligence, the relevant circumstances will include both those of which the landlord knew and those which the landlord ought reasonably to have known". 51 Gummow and Hayne JJ, after a detailed consideration of the content of the duty of care, said, at par 171:- "The relationship between landlord and tenant is so close and direct that the landlord is obliged to take reasonable care that the tenant not suffer injury. In considering the degree of care which must be taken, and the means by which a tenant may be injured, it must be borne in mind, as already discussed, that ordinarily the landlord will surrender occupation of the premises to the tenant. Thus, 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. Broadly, the content of the landlord's duty to the tenant will be co-terminous with a requirement that the premises be reasonably fit for the purposes for which they are let, namely habitation as a domestic residence". 52 At par 173 their Honours continued:- "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 the 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". 53 After considering dangerous defects their Honours considered, in pars 174 and 175, the reasonableness of steps to be taken in all the circumstances of the case. 54 At par 252 Kirby J said:- "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 agents". 55 Callinan J, at par 289, expressed the view that if any duty were owed, as to which he was far from convinced, he would define it:- "... as no more than a duty to provide, at the inception only of the tenancy, habitable premises. And that the respondents in this case surely did". 56 The majority of the High Court were of the view that a landlord owes a duty to a tenant. That duty was expressed in the various ways to which I have referred. It is consistent with the contractual obligation to keep the premises in reasonable repair. The first question, which arises in this case, is whether the respondent discharged that duty in all the circumstances. The principal and, perhaps in the end, only way in which it was argued that the duty was not discharged was the failure to erect a handrail. Such was not required by any code. However, of course, that does not establish a right not to erect one. 57 The appellant submitted that having regard to the respondent's knowledge that there had formerly been a handrail in position; that the appellant suffered in the way to which I have referred; and that it was foreseeable that a person may fall or trip on steps, even if they were constructed conformably with the applicable code, there was an obligation to erect a handrail, which could have been done at little expense. The appellant also, of course, pointed to the diagram at Black AB p 72 as showing that it was the expectation of the draftsman that a handrail would be put in place. 58 On the other hand, the respondent submitted that steps, particularly a short flight of only four, whilst obviously posing a potential danger if one either trips or oversteps, or, one might add, walks off the edge, does not demand, as a matter of reasonable care, that a handrail be put in place. The respondent submitted that the steps were obvious, and that it was equally obvious that if one overstepped, as the appellant did, there was the likelihood that injury would be sustained. 59 The respondent, of course, also relied on the fact that the appellant had been using the steps for some eight weeks prior to the accident without any misadventure and was acutely aware of the need to take care on steps not only by reason of her perception of these steps, but also because on a previous occasion and elsewhere she had tripped on steps. 60 The other question to which regard must be had, in my opinion, is the extent to which the appellant was required to go to make these four essentially unremarkable steps "safe". In this case there was focus upon the need for one handrail in circumstances, where, in my opinion, the appellant had been very careless by not taking the simple course of putting her left foot on the bottom step. However, these steps were to be used both during the day and at night and in fine weather and wet. Why, one may ask rhetorically, was it not necessary to make them safe to have a handrail on each side; reflective tape at the edge of the treads to indicate to a person looking down with greater precision their position; a surface, which would prevent a person slipping in wet weather; and lighting to give a more full view of the steps at night? The idea that one handrail was needed at small expense does not in any way answer the extent to which the landlord was required to go in seeking to prevent injury from any cause, particularly careless conduct on the part of the appellant which point was emphasised by Gleeson CJ. 61 The question to be answered is whether, in all the circumstances, the appellant has established that the respondent breached its duty by failing to install the handrail. Whilst I appreciate that this is a matter on which minds may differ, I have come to the conclusion that there was no breach of duty. In my opinion, that conclusion should be reached for the following reasons:- (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. Causation . 62 My conclusion that there was no breach of duty makes it strictly unnecessary to deal with the issue of causation. However, as the matter was argued at some length, I think it appropriate to state my views on it. The starting point for the respondent's submission were the answers given by the appellant at Black AB pp 53 and 54 to which I have referred. There was no objection to the first two questions and answers I have quoted. The respondent's submission was that irrespective of whether a handrail had been provided, the overstepping of the bottom step, even to the extent of having the back of her heel lacerated by it, would have caused the appellant to lose her balance and, in consequence thereof, suffer some injury. However, the submission gathered momentum from the question to which objection was taken, and it is necessary to consider whether his Honour's ruling that the question should be allowed was correct. 63 The respondent's first submission was that the question was permissible in cross-examination as being relevant to a fact in issue, namely what caused the appellant to fall. The respondent relied upon s 55(1) to establish that the evidence was relevant and, therefore, admissible. In my opinion the question was clearly relevant. The question, which then arose, was whether the answer it was seeking could be no more than speculative. It was also submitted by the appellant that the evidence was in the nature of an opinion from her and that she was not a person qualified to give it. 64 Section 78 of the Evidence Act 1995 (NSW) provides:- "The opinion rule does not apply to evidence of an opinion expressed by a person if: (a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event, and (b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event". 65 Dr Morrison submitted that the question asked was not one which called for the appellant's opinion based on what she saw, heard or otherwise perceived and was not necessary to obtain an adequate account or understanding of her perception. I disagree. The issue was, in the question asked, that even if the additional 25 millimetres had been there, the appellant would still have fallen. It seems to me that the appellant was the person, and indeed as there were no witnesses, the only person in a position to perceive what would have happened, on the assumption she was asked to make, and the evidence was, in my opinion, necessary to obtain an adequate account or understanding of her perception. Indeed, the answer indicates that she was speaking of her perception as to what would have happened, namely that she probably would have fallen; that she would not have broken any bones; and that she would have suffered a twisted ankle. 66 In the view I take the evidence was both relevant and, insofar as it involved a lay person giving an opinion, fell within s 78. 67 It is not clear whether any objection was taken to the questions at Black AB p 54 commencing with Mr Springthorpe's name. If it was then, in my opinion, for the reasons I have given such evidence was admissible. It was also admissible, in my opinion, as constituting an admission. 68 The next issue is that the appellant was not asked to assume that she would have fallen if a handrail had been in position. I have quoted her evidence in chief in which she said that if there had been a handrail she would have used it. However, that does not indicate what may have occurred when she would obviously have lost her balance by overshooting the bottom step. To overcome this difficulty the appellant must be able to rely upon her answer to the last question in re-examination, which was grossly leading but to which no objection was taken. 69 She was asked, on the assumption that there was a handrail, whether she thought she would have fallen. She said she did not think she would have and that she would have been using the handrail. The passage "I would have been using the handrail" was not only a non-responsive answer to a leading question, but was also nothing more than a self-serving statement. However, there was no application to strike it out. 70 Nonetheless, I would respectfully adopt the reasoning of Kirby P in Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at p 560:- "It is true that answering that question involves an exercise in retrospective reasoning. The patient cannot, when the mishap leading to damage and litigation has occurred, determine the answer authoritatively by the response in court to the question of what he or she would have done had only full and proper advice been given. However honest the patient may be, self interest and the knowledge of the misfortunes that have followed the treatment will necessarily colour the patient's response to that question. Nonetheless, the answer remains an important ingredient in the decision by the fact finding tribunal as to what it thinks the patient, subjectively and at the time before operation, would have done if properly and fully advised". 71 In my opinion, the appellant's answer should be tested against that type of proposition. It was obviously in her interest to agree and her answers and non-responsive replies showed her lively appreciation of evidence which may assist her case. 72 However, the answer does not overcome the appellant's problems. The fact that she may have been "using the handrail" does not mean that when she was thrown off balance she would not have fallen. It is to be remembered that she was carrying a washing basket and one can only speculate as to what would have happened when she failed to put her foot securely on the bottom step and thereby lost her balance. The only matter about which one can be certain is that her left foot would have hit the ground first, irrespective of whether she was holding the handrail or not. The extent of the injuries that she may have suffered in those circumstances cannot be established. From time to time minor trauma leads to major injury, and major trauma leads to minor injury, particularly where a person is already somewhat incapacitated. 73 There is a further reason why, in my opinion, the appellant cannot place weight on this answer. Her answer that she would have been using the handrail presupposes that notwithstanding that she would have lost her balance, whilst holding a basket of washing, she would have none-the-less by holding on to the handrail not have fallen. This ignores the fact that her foot, having overstepped the bottom step, would have continued on to the ground, which it would have hit with some force. It is difficult to imagine that having been projected forward her hold on the handrail would have precluded that happening, or allowed her to scramble back onto the bottom step. The dynamics of the situation were such, in my opinion, that whilst her holding the handrail may have broken her fall to some extent, it would not have done so to the extent necessary to prevent her injuring her left ankle. At best it may have made it less severe, but that merely highlights that the provision of the handrail, in all the circumstances, would not have prevented injury. As Dr Morrison conceded in reply, he could only say that it was a reasonable inference that a railing would have reduced the risk of injury. 74 On this analysis, the absence of the handrail was not causative of any injury. This was a case where, in my opinion, on the assumption that there was a breach of duty which I do not accept, that breach cannot be treated as causative of the injury, merely because there was injury. Rather the carelessness of the appellant and the conceded limited effectiveness of the handrail demonstrate "sufficient reason to the contrary": Chappel v Hart (1988) 195 CLR 332 per Gaudron J at p 239; per Gummow J at pp 255-256 and Kirby J at p 269. Conclusions . 75 I would propose that the appeal be dismissed with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.