Reported Decision: (2007) Aust Torts Reports 81-918 Appeal Outcome: Special leave refused with costs by the High Court - 13 June 2008 New South Wales Court of Appeal CITATION: Estate of the Late J J Virgona by its Executors v De Lautour [2007] NSWCA 282 HEARING DATE(S): 08/10/07 JUDGMENT DATE: 18 October 2007 JUDGMENT OF: Hodgson JA at 1; Ipp JA at 2; Young CJ in Eq at 60 DECISION: (1) The appeal is upheld. (2) The judgment of Boulton ADCJ is set aside. (3) There will be judgment for the appellant. (4) The respondent's claim against the appellant is dismissed with costs. (5) The respondent to pay the appellant's costs of the appeal. (6) The respondent is to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise entitled. CATCHWORDS: TORTS – negligence – duty of care of landlord to tenant – respondent fell through ceiling of an attic roof area of premises owned by the appellant – respondent was the co-tenant of the premises – condition of roof area – whether roof area constituted a dangerous defect – whether the condition of the roof area rendered the premises unfit for the purposes for which they were let such that a duty of care was imposed on the appellant. D LEGISLATION CITED: Suitors' Fund Act 1951 (NSW) Ahluwalia v Robinson [2003] NSWCA 175 Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 CASES CITED: New South Wales Department of Housing v Hume [2007] NSWCA 69; (2007) Aust Torts Reports 81-879 Sakoua v Williams [2005] NSWCA 405; (2005) 64 NSWLR 588 Wyong Shire Council v Shirt (1980) 146 CLR 40 PARTIES: Estate of the Late Joseph James Virgona by its Executors Rosemary Marie Virgona, Robert Thomas Virgona and Kathleen Constance Quinlivan (Appellant) Rachael May De Lautour (Respondent) FILE NUMBER(S): CA 40620/06 COUNSEL: B Toomey QC/T Berbarian (Appellant) G Barry Hall QC/A Campbell (Respondent) SOLICITORS: Ebsworth & Ebsworth (Appellant) Gerard Malouf & Partners (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 10312/00 LOWER COURT JUDICIAL OFFICER: Boulton ADCJ LOWER COURT DATE OF DECISION: 25/08/06, 05/09/06 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40620/06 DC 10312/00 HODGSON JA IPP JA YOUNG CJ in EQ Thursday 18 October 2007 ESTATE OF THE LATE JOSEPH JAMES VIRGONA BY ITS EXECUTORS ROSEMARY MARIE VIRGONA, ROBERT THOMAS VIRGONA & KATHLEEN CONSTANCE QUINLIVAN v RACHAEL MAY DE LAUTOUR Judgment 1 HODGSON JA: I agree with Ipp JA. 2 IPP JA: At about 1.00 pm on 28 December 1997, the respondent was injured when she fell through a ceiling on the second floor of a house of which she, together with others, was a tenant. 3 The respondent brought proceedings for damages for negligence against the appellant, as landlord of the premises. It was common ground that, for the purposes of the appeal, the appellant was to be treated as the landlord and the respondent as its tenant. The respondent had not entered into a written lease of the premises. The arrangements whereby she became a tenant were informal. 4 The respondent had gone into an area of roof space in the leased premises to store a metal pipe about a metre in length. When she entered the roof area, she observed a wooden beam or rafter, capable of supporting her weight, running straight ahead of her across the floor. There was insufficient space for her to stand, so she squatted, balanced her right leg on the beam and put her left foot on what she thought was another beam "coming across at right angles". This, however, was not a beam but a batten, the purpose of which was merely to join (and fill the space between) two separate sheets of asbestos cement ceiling material constituting the floor of the roof area and the ceiling of a bedroom below. The batten was not weight bearing. The respondent's foot went through the batten and she fell through the ceiling to the bedroom. 5 Boulton ADCJ upheld the respondent's claim. His Honour found that the appellant had breached the duty of care that it owed the respondent. He said that "confined space, poor lighting, [and] existence of some clutter" made the roof space "hazardous to the average tenant". He said: "Trying to balance one's feet on the tops of beams particularly if carrying anything was a precarious exercise made even more so by the fact that the ceiling was brittle and had … negligible supporting effect." 6 His Honour concluded: "There were simple remedies available. Flooring could have been installed. The door could have easily been locked against general use." 7 The house in which the accident occurred was large and more than 100 years old. The appellant was an absentee landlord (no representative of the appellant occupied the premises). The house contained several bedrooms and there were several tenants. It was common ground that each tenant had the right to occupy his or her bedroom and use the common areas. 8 About two weeks before the accident, the respondent saw an advertisement for shared accommodation in the house. She responded to that advertisement and spoke to Mr Miguel Trapaga, who was the "senior" tenant. Later, she had dinner with Mr Trapaga and four other tenants so that she could get to know them and they could meet her. 9 Mr Trapaga showed the respondent the house. She looked at the bedroom that was available for rent as well as the downstairs living area and a television room on the second floor. When she was taken to the television room she saw two doors in the walls and assumed that they were cupboards. The doors were closed and nothing was said to her about their purpose. She said that the doors "looked like ordinary cupboard doors". 10 The respondent moved in to her bedroom on Boxing Day 1997. The respondent's sister and her husband were coming to visit her over Christmas and she asked Mr Trapaga if they could stay for a night or two in a guest bedroom downstairs. He agreed. The respondent decided to move some of the things in that bedroom (including the metre long metal pipe, to which I have referred) into a storage area. She asked Mr Trapaga if she could clean the room out and take the items lying around "into the storage areas upstairs in the upstairs room". She did not specify the storage area to which she was referring. He agreed. 11 In fact, there were three storage areas upstairs. One was at the top of the stairs. This was not in a roof area. The other two were roof areas to which access could be gained through the two doors that the respondent had seen in the television room. These two areas were under the roof eaves (even though they were adjacent to – and not above – the television room). 12 The respondent went upstairs with the metal pipe. On entering the television room she went to the door in the wall that was on her left hand side. The other door was on her right hand side. The respondent's young niece was watching television and the respondent did not want to disturb her by passing in front of her to get to the door on the right hand side. 13 The respondent said that there was a doorknob on the door through which she entered the roof area. The appellant disputed this. Ms Kilby, a co-tenant, testified that the door did not have a doorknob. She had been in the house for some nine months and said that when she moved into the house the doorknob was missing. While she was there, there was no doorknob on the door. Mr Gillan, the managing director of the managing agent of the house, testified that the knob on the door in question "was missing". Neither Ms Kilby nor Mr Gillan was cross-examined on this issue. The respondent's expert, Mr Squire, a forensic locksmith, testified that the spindle of the latch mechanism on the door had been "glued in place by paint". He said that paint had been applied around the base of the spindle and the casing of the latch and it had seeped "between the confines of the spindle and the casing itself where there would have originally been clearance to allow it to freely move both clockwise and anti-clockwise, and also to move both inward and outward". Mr Squire agreed that this indicated that there was no knob on the spindle when the paint got in. He testified that there were two layers of paint on the spindle (an old layer and a new layer) and, "in the highest probability" over the time that the two layers of paint were applied, there was no knob on the door. 14 Boulton ADCJ said in regard to this issue: "The [respondent] had said in her evidence that the knob on the latch was in place when she entered the roof space but this detail of her evidence is questioned. The presence of the layers of paint is indicative of the fact that this is unlikely." 15 On the basis of the evidence to which I have referred, and the judge's finding, it must be accepted that when the respondent first opened the door to the roof area, there was no doorknob on it. 16 As I mentioned, there was a latch on the door. The judge accepted, on the basis of Mr Squire's evidence, that even without the knob, the door could have been opened by mere finger pressure. Mr Gillan, who attended at the house after the fall had occurred, had to prise open the latch with the point of a key. But the judge found that, even in its pristine form, the latch could have been easily opened. The respondent testified that this is what in fact occurred. 17 When Mr Gillan came into the television room after the respondent had fallen, he found a lounge couch across the doorway, barring access to it. The respondent testified that the couch was not in that position when she came to open the door and the judge accepted this (even though Ms Kilby gave evidence to the contrary). Applying the well-established rules of appellate review of factual findings based on credit, this finding must be accepted. 18 The door to the roof space was 600 millimetres wide and the full height of the wall of the television room. The slanting roof forming the eaves limited the height of the roof space. The respondent was not able to stand in the area. There was a drop of about 250 millimetres from the carpeted timber floor in the television room to the top of the ceiling surface in the roof area. Timber ceiling joists (bearer beams) 175 millimetres (about seven inches) high and 50 millimetres wide, spaced at 630 millimetre intervals, ran lengthways from the door and wall of the television room to the roof eave. It was such a joist that the respondent first saw when she opened the door. Wooden roof battens (referred to by the judge as "timber strips") ran at right angles to the joists. These battens were about three inches wide and three quarters of an inch thick. The battens filled gaps between the sheets of asbestos cement forming the ceiling. The battens were level with the ceiling sheets. The joists were 175 millimetres (about seven inches) higher than the battens and ceiling sheets. 19 During the course of the trial, the judge had a view of the roof area. He recorded in this regard: "What was able to be seen from above was the upper surface of the [battens] which had been tacked on from below. The sheeting was very thin with the result that the timber appeared to be virtually flush with the asbestos cement sheeting itself and therefore flush with the underside of the roof beams". 20 This supported the evidence of the respondent that she had been unable to determine the thickness of the timber strip or batten running at right angles to the joist on which she first stood. The judge remarked: "The asbestos cement sheeting was fragile and together with the cover strip [the batten] which was merely tacked on to the bearers from below had negligible supporting strength. This accords with the [respondent's] evidence that it failed instantly." 21 Until the accident occurred, the respondent had not been in the roof area, or even opened the door to it. She said that when she opened the door "it was quite dark". On her right hand side, as she stood facing the door, there was a window in the room. It is likely that at the time in question (1.00 pm on 28 December) light came through the window and, to a degree, illuminated the roof area once the door was opened. The respondent said there were "bits of planks of wood and other items in there", including "some boxes". 22 The respondent described what occurred as follows: "I knelt down, not on my knees but I was more like squatting down. I balanced my right leg on the beam that was going across. I wanted to just balance it and put it down to the side." She testified: "Then I put my left foot on what I thought was another beam coming across at right angles." This was, manifestly, a batten. The respondent said that the batten was of a similar width to the bearer beam "but not the depth". In fact, as I have mentioned, the batten was 175 millimetres or some seven inches below the top of the beam. 23 The respondent said that she "balanced" her left foot on the batten, "it snapped" and she "went through". 24 When the respondent opened the door, she knew that the area she was entering "went into the eaves of the roof" and was roof space. She said that she knew this because the roof sloped down to the top of the door. The roof caused her to crouch. 25 The respondent said that she assumed that the area was a storage space because of the cupboard door (even though no one told her that it was a storage area). She said: "I obviously thought that behind those cupboard doors there was a storage area, because I had been in other houses where there was similar roof structure and where it was commonly used as storage area under the eaves." She had earlier testified: "[O]ften there's storage areas in houses with pitched rooves [sic] like that, with cupboard doors leading to them." 26 The respondent said that she did not think that there were floorboards in the area into which she went, but she said that she thought that the piece of wood (the batten) "going across" would have supported her weight. 27 The respondent was asked why she simply did not reach into the area and put the metal pipe down. She did not give a cogent answer to this question. 28 The respondent denied that she thought that putting her foot on the piece of wood (the batten) running at right angles to the joist was dangerous. She was asked whether, before she put her weight on the batten, she did anything to satisfy herself that it was strong enough to take her weight, and she replied in the negative. 29 She said that she was not aware that there was a substantial difference in the level between the top of the joist and the top of the batten. She was concentrating more on looking exactly where she should put her foot. Because she thought the batten would support her weight, she did not think that there was danger. She said that she put her feet where "it appeared to be strong". 30 Although the respondent acknowledged that she knew that she was entering a roof space and she could see and recognise the roof joists, she said that she did not know what was attached to the underside of the joists. In particular, she said that she did not know that the underside was a ceiling. She said: "It was grey and it was dark. I was concerned with putting my feet on the beams". 31 When the respondent was asked why she was concerned to put her feet on the piece of wood and why she was not happy to stand on the flooring material, she said: "I didn't know what type of flooring mater[ial] it was. It was grey and it was dark and dusty". She accepted that she stood on the batten because she recognised that the flooring material might not support her. In other words, she appreciated the risk, but nevertheless proceeded to take it. 32 The leading authority in Australia on the duty of care owed by a landlord is Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166. This case has been discussed in detail in Ahluwalia v Robinson [2003] NSWCA 175, Sakoua v Williams [2005] NSWCA 405; (2005) 64 NSWLR 588 and New South Wales Department of Housing v Hume [2007] NSWCA 69; (2007) Aust Torts Reports 81-879. 33 In Ahluwalia, Hodgson JA (with whom Sheller JA and Bryson J agreed) said (at [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." 34 In Hume, McColl JA (with whom Basten JA agreed) recounted the remarks of Mason P (with whom Brownie AJA agreed) in Sakoua and commented as follows (at 69,347 to 69,348, [82] to [83]): "Mason P said [in Sakoua ] (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 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 .' 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 were inherently dangerous, especially if transferred 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 tree 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'." McColl JA said (at 69,349, [93]): "The porch and stairs were no more or less inherently dangerous than any such structures or of any other dangers in premises. There is no doubt that they could have been made safer but that does not mean they were dangerous or defective." 35 Mr Toomey QC, who, with Ms Berbarian, appeared for the appellant, submitted that the trial judge erred in regarding the roof area where the respondent fell as "hazardous to the average tenant". 36 In resisting this submission, Mr Hall QC, who, together with Mr A Campbell, appeared for the respondent, submitted that the appearance of the battens and the general condition of the roof area constituted a trap that misled the respondent into standing on the batten. 37 The difficulty with Mr Hall's submission is the judge's finding that: "The rather strange appearance of a timber surface between gaps in the asbestos sheeting may not have been something that the lessor should have picked up at the time of granting the lease or even since that time. In the present case it seems more an issue relevant to contributory negligence that the plaintiff in less than ideal conditions formed the view that it was a cross beam." 38 This finding does not support the proposition that the appearance of the battens was misleading. The judge did not find that the appearance of the floor surface, constituted by the asbestos sheets and the battens, constituted a trap of which the landlord should have been aware. 39 Boulton ADCJ (having had the benefit of a view) was not persuaded that there was anything untoward about the appearance of the flooring material of the roof area. As he determined that the appellant should not have "picked up" the possibility of the battens causing confusion in the way Mr Hall submitted, there is no basis for the argument that (to the imputed knowledge of the appellant) the battens were capable of misleading a reasonable person about the nature and strength of the flooring material. 40 Indeed, the judge's reference to the appearance of the flooring material being "more an issue relevant to contributory negligence" indicates that his Honour considered that the respondent should have appreciated the danger of putting her weight on her left leg when it was supported only by the batten. This becomes clear from the following observations of his Honour: "The disparity in level between the top of the bearers [battens] and the 'beam' should have been obvious but she didn't direct her attention to that at the time. If she paid closer attention she would have seen that its level was virtually the same as that of the sheeting. She says that the area lighting was poor and the surface covered in dust. That was no doubt true. It should be noted that this was the first time that she had ever entered the space. However, even to a person in the position of the [respondent] there should have been obvious potential for danger. She should be held contributorily negligent for failing to take adequate care for her own safety. I assess that at twenty per cent." 41 The respondent does not challenge these findings. It follows that the argument based on battens being a trap cannot be upheld. 42 No one told the respondent that the roof area where she fell was a storage area. She assumed this to be the case and her assumption was confirmed by the fact that she observed items apparently stored there when she opened the door. Mr Trapaga gave her permission to use the "storage areas" upstairs, but he was not an agent of the appellant and, in any event, he did not purport to authorise the respondent to use the area in which she fell. 43 Boulton ADCJ found that the existence of full height doors led to the inference that the areas behind the doors were storage areas. He said: "The only rational explanation would seem to have been to give access for storage." 44 I do not agree. The roof areas in question, as I have said, were not above the television room but were adjacent to it. There was no need, and it was not possible, for ingress to the roof areas from the television room to be gained through a manhole cover or a trapdoor. The doors were there simply to allow access to the roof areas, in the same way as manhole covers or trapdoors are ordinarily used for this purpose. The fact that a "manhole or such aperture" to which the judge referred was not used may have been simply for reasons of aesthetics and convenience. 45 The judge found that the roof area had in fact been used for storage and considered there to be a "practice" in this regard. He said: "Mr Trapaga in giving approval was also apparently aware of the practice." 46 Mr Trapaga, however, merely gave permission to the respondent to use "the storage areas upstairs in the upstairs room". He did not specify which areas he had in mind and, in any event, the terms in which he gave approval does not justify a finding of a "practice" of storing items in the area in question. 47 His Honour also sought support for his finding that the roof area was used for storage by stating that "Ms Kilby referred to the practice". Ms Kilby, however, said that she knew that some of the other tenants had stored some belongings in the other roof area leading off the television room (but not the area in which the respondent fell). It was put to Ms Kilby in cross-examination by counsel who appeared for the respondent at the trial that "[i]t was known amongst the housemates that the roof space was a designated area where you could store items". Ms Kilby replied: "I never assumed that". She said that she did not know that the area where the respondent fell had been used for storage. The judge's reliance on Ms Kilby's evidence in this regard is misplaced. 48 The appellant challenged the finding that there was a practice of storing items in the area where the respondent fell and, in my view, that challenge must succeed. The fact that the respondent saw some items in the area when she opened the door does not establish the existence of such a practice. There was no evidence as to how long those items had been in the roof. In any event, even if there was such a practice, it was not established that the respondent knew or should have known of the practice. 49 Moreover, in my opinion, it matters not whether there was a practice and whether the appellant knew of that practice. Once it is accepted that the battens were not misleading, (and on the judge's finding, as I have explained, this must be the case), there was nothing unusual about the make-up of the roof area. As a matter of general knowledge it was typical of many roof areas in residences throughout the country (save for the fact that the roof area in question was not above the top floor of the residence, but adjacent to it). While the door to the roof area made access easier, the respondent well knew, before going on to the joist, that she was entering a roof area. 50 The fact that the roof area was used for storage was not unusual. The respondent, herself, stated that she had been in other houses where there were similar roof structures that were "commonly used as storage area[s]". 51 In Jones v Bartlett, Gummow and Hayne JJ said (at 215, [171]): "Broadly, the content of the landlord's duty to the tenant will be conterminous with a requirement that the premises be reasonably fit for the purposes for which they are let, namely habitation as a domestic residence." 52 As there was nothing relevantly unusual about the roof area, it could not be said, on any reasonable basis, that its condition rendered the premises unfit for the purposes for which they were let, namely, habitation as a domestic residence. 53 The risk of traversing a roof area having with a floor comprised of ceiling material is well known and part of ordinary domestic life. In this context, the remarks of Gleeson CJ in Jones v Bartlett (at 177, [23]) are pertinent: "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 that 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." 54 To paraphrase McColl JA in Hume (at 69,349, [93]), the roof area was no more or less inherently dangerous than any such area or the many other dangers in similar domestic premises. There is no doubt the roof could have been made safer but that does not mean that it was dangerous or defective. 55 Mr Hall submitted that the door to the roof area "invited" access. I do not accept that that is the case. There was no doorknob on the door and there was a latch on it. The fact that the latch could easily be opened is irrelevant in this context. The point is that the latch, weak though it was, could not be said to constitute an invitation to open the door. 56 The respects in which the trial judge held the appellant's duty to have been breached are revealing. 57 He suggested, firstly, that flooring could have been installed. There was, however, no analysis carried out in accordance with the test in Wyong Shire Council v Shirt (1980) 146 CLR 40 and there was no evidence as to the cost of installing such flooring. Moreover, the notion that landlords must install flooring in the roof spaces of premises let because those spaces are used by tenants for storage is contrary to what is general knowledge concerning the construction of roof areas in houses in Australia. 58 The second breach found was that the door "could have easily been locked against general use". That would have been a most unusual practice, and there are other considerations involved. Firstly, there was no investigation as to whether locking the door (through which access could be gained to the roof area) would comply with safety requirements. Secondly, the tenants may have objected to the areas being locked. 59 In all the circumstances, I conclude that the appellant did not breach the duty of care it owed the respondent. I would propose the following orders: (a) The appeal is upheld. (b) The judgment of Boulton ADCJ is set aside. (c) There should be judgment for the appellant. (d) The respondent's claim against the appellant should be dismissed with costs. (e) The respondent should pay the appellant's costs of the appeal. (f) The respondent is to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise entitled. 60 YOUNG CJ in Eq: I agree with Ipp JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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