Occupiers duty of care

“73 As occupiers, the respondents owed the appellant, as an entrant to their home, a duty to take reasonable care to avoid a foreseeable risk of injury to her, on the premise that she was exercising reasonable care for her own safety. The duty included the obligation to take precautions a reasonable person in the circumstances would have taken by way of response to the risk that a person may slip on tiles on the porch or the stairs.

74 The scope of the duty occupiers owe entrants has been identified in numerous cases which reflect the latter premise, that is to say, the obligation of the entrant to take reasonable care for his or her own safety. Thus, it is emphasised that the occupier’s obligation is one of reasonable care, not to make the premises as safe as “reasonable care and skill on the part of anyone can make them”. It is not an insurer of entrants. What constitutes the exercise of reasonable care depends on the circumstances of each case.

75 Just as stairs are inherently but obviously dangerous and the risks of misjudging footing or tripping are ordinarily avoided by people taking reasonable care for their own safety,[68] so too are wet surfaces, or surfaces which may be wet by reason, among other matters, of rainfall. Thus, the mere fact of a fall on wet steps is not sufficient to establish that an occupier has been negligent.[69] Further, it does not follow from the fact that the porch was wet, that there was some precaution that the respondents did not take that a reasonable person in their position would have taken.”[Endnotes omitted]

30. However, it is worthwhile to consider some earlier cases. Perhaps the appropriate starting point is the decision of the Court of Appeal in Stannus v Graham (1994) Aust Tort Reports [81-293]. In that case, the plaintiff and her husband were renting premises owned by the defendant as a holiday flat. The plaintiff, who had fallen when she trod on a step on the premises, sued to recover damages for personal injuries. The trial judge found for the plaintiff because the top step had moved and because the defendant had failed to exercise reasonable care for the safety of the plaintiff and persons like her and that negligence had caused the fall. The trial judge found that a close inspection before the accident would have revealed movement in the top step, and the installation of a handrail would have been an easy matter and would have prevented the plaintiff’s fall. The appeal was allowed. The principal judgment was given by Handley JA, with whom Priestley and Meagher JJA concurred.
31. Commencing at 61, 564, his Honour said this:

“This Court has hitherto declined to impose any tortious duty on occupiers to inspect their premises for the purpose of discovering unknown and unsuspected defects.”

His Honour then referred to Aslanidis v Atsidakos and continued thus:

“Subsequently, in Short v Barrett (5 October 1990, unreported), Meagher JA held that householders do not act unreasonably in taking their house as they find it and assuming it to be perfectly safe unless and until they either know it is unsafe, ‘or else receive a warning that it may be unsafe.’ The other members of the Court, Clarke JA and myself, agreed. The High Court granted special leave to appeal, but the appeal did not proceed … Mr Black did not refer us to any authority to the contrary of these decisions and, in particular, did not refer us to any case which establishes that an occupier of residential property has a duty to inspect the premises for the purpose of discovering unsuspected defects.

Indeed, the decision in Watson v George (1953) 89 CLR 409 supports the view that no such duty existed in the present case. This decision predates Australian Safeway Stores v Zaluzna […] but was not referred to in that case and I see no reason why it should be treated as impliedly overruled.

In that case, a paying guest in the defendant’s boarding house died from carbon monoxide poisoning due to a defective gas bath heater. The plaintiff relied upon the duty owed to persons who enter premises for reward to the occupier. This duty is not less onerous than the duty established by Australian Safeway Stores v Zaluzna. The Court held that the contract contained an implied warranty that the premises are as safe for their intended purpose as reasonable care and skill on the part of anyone can make them, although the occupier is not responsible for defects which could not have been discovered by reasonable care or skill on the part of any person connected with the construction, operation, or maintenance of the premises.”

His Honour then went on to quote further from Watson v George. His Honour then went on to say this:

“A concrete step such as this is more commonplace and less dangerous than a defective gas bath heater. It was regularly walked on by both caretaker, tenants, and others. It was not even established that a close inspection by an expert the day before this accident would have revealed that it was likely to move in the near future. Again, in the words of Fullagar J inWatson v George at 425: