Gray v Queensland Housing Commission [2004] QSC 276 (1 September 2004)

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CITATION:	Gray v Queensland Housing Commission [2004] QSC 276
PARTIES:	SUSAN LORRAINE GRAY (plaintiff) v QUEENSLAND HOUSING COMMISSION (defendant)
FILE NO:	SC No 9520 of 2001
DIVISION:	Trial
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court, Brisbane
DELIVERED ON:	1 September 2004
DELIVERED AT:	Brisbane
HEARING DATE:	10 August 2004; 12 August 2004
JUDGE:	Chesterman J
ORDER:	1. Judgment for the defendant 2. Plaintiff to pay the defendant’s costs of the action to be assessed on the standard basis
CATCHWORDS:	TORTS – NEGLIGENCE – ESSENTIALS OF ACTIONS FOR NEGLIGENCE – SPECIAL RELATIONSHIPS AND DUTIES – OCCUPIERS – where the plaintiff was the tenant of the defendant – where the plaintiff was injured as a result of slipping on high gloss tiles used throughout the demised premises – whether the defendant had breached its duty of care to the plaintiff tenant by allowing the high gloss tiles to remain in the demised premises – whether the defendant had failed to keep the demised premises in ‘good repair’ and in a state ‘fit for the [plaintiff] to live in’ Residential Tenancies Act 1994 (Qld), s 103(2), s 103 (3) Bond v Weeks [1999] 1 Qd R 134 Fine v Geier [2003] QSC 73 Summers v Salford Corporation [1943] AC 283 Morgan v Liverpool Corporation [1927] 2 KB 131 Jones v Bartlett (2000) 205 CLR 166 Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; (1997) 188 CLR 313
COUNSEL:	Mr M Grant-Taylor SC for the plaintiff Mr W D P Campbell for the defendant
SOLICITORS:	Bennett & Philp for the plaintiff HBM Lawyers for the defendant

[1] By an agreement to lease (‘the agreement’) dated 18 April 1997 the plaintiff became a tenant from the defendant of a house located at 44 St Clair Crescent, Wishart
(‘the house’). The term was ‘periodic beginning on the 18^th ... April 1997 ... [to] continue until terminated in accordance with the [Residential Tenancies] Act.’
The house was built between September and November 1992 and was bought by the defendant on 26 February 1997. On 18 February 1999 the plaintiff slipped and fell on a ceramic tiled floor in the house and severely injured her left knee.
On 24 October 2001 she commenced these proceedings claiming damages in respect of her injury.

[2] The case pleaded against the defendant (by the Amended Statement of Claim dated
17 May 2002) was:

‘5. Pursuant to Condition 8 of the Agreement, the Defendant as lessor ... owed to the Plaintiff a contractual duty to ensure ... during the tenancy that the premises and inclusions were in a reasonable state of repair and free from risk to health and safety.’^[1]

(1) would take all reasonable precautions for the Plaintiff’s safety ... during the term of the Agreement;

(2) not to expose the Plaintiff to risks of injury which were known or ought to have been known and to promptly effect all necessary and proper repairs and to maintain the premises in a reasonable state of repair; and

(3) to ensure that the premises were reasonably safe for use by the Plaintiff and that reasonable care and skill had been exercised to make them safe.

(1) a duty of care to ensure the premises were as safe for occupation and use as reasonable care and skill on the part of any person could make them;

(2) a statutory duty pursuant to s.103 of the Residential Tenancies Act 1994 ... to ensure at the start of the tenancy [that] the premises and inclusions were in good repair and during the tenancy to maintain the premises and inclusions in good repair.’

[3] The kitchen of the house was partly divided by a cupboard and bench into two areas: one for dining and the other for the usages to which a kitchen is put.
The floor covering for the whole area (which I will call the kitchen for convenience) was covered by ceramic tiles which had a smooth glazed surface.

[4] A sliding glass door gave access from the dining area of the kitchen to a patio. Suspended from the ceiling near the door was a bird cage. The plaintiff explained that on the day of her fall she had been on the patio watering some pot plants by means of a garden hose.

‘I was out the back ... hosing. I stepped inside onto the chair to get the bird cage down. As I stepped back down from the chair, was holding the chair arm with one hand and the bird cage in the other, I stepped back with my left foot. My left foot slipped, went from under me due to my wet feet. I fell backwards. ... [The floor surface comprised of] ... white very high glossy, slippery tiles...’

[6] The plaintiff puts her case for damages against the defendant in negligence under the general law; for breach of contract and for breach of statutory duty.
Paragraph 11 of the Amended Statement of Claim gives the particulars:

‘(1) failing in breach of Condition 8 of the Agreement to ensure that the premises and inclusions, namely the floor tiles, were in a reasonable state of repair at the start of the Agreement and during the tenancy and were free from risk to health and safety;

(2) failing to take any or any reasonable care to ensure that the Plaintiff would be safe whilst renting the premises;

(3) failing to carry out any, or any adequate, inspection of the premises prior to the commencement of the Agreement or during the tenancy to ascertain whether the floor tiles were safe;

(4) failing to take any, or any adequate, steps to ensure defective floor tiles were removed, prior to the commencement of the Agreement or during the tenancy;

(5) failing to treat the floor tiles so as to render their surface reasonably safe, whether at or prior to the commencement of the Agreement or at all;

(7) exposing the Plaintiff to a risk of injury of which the Defendant knew or ought to have known;

(8) failing in breach of s.103 of the RTA to ensure at the start of the Agreement that the premises and inclusions, namely the floor tiles, were in a reasonable state of repair and during the tenancy to maintain the floor tiles in a reasonable state of repair.’

[8] When the agreement was executed ss 103(2) and (3) of the Residential Tenancies Act 1994 (Qld) (‘the Act’) were in terms identical to the provisions of clause 8.1 and 8.2 of the agreement (save that s 103(3) commenced ‘while the tenancy continues’. Clause 8.2 commenced ‘during the tenancy’).

[9] On 18 May 1998 s 103 of the Act was amended. Subsection 3 was altered and became:

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

[10] The obligation imposed on the defendant by the agreement and the Act, to ensure that the house was and remained fit to live in, is qualified by the imposition of a standard of reasonableness having regard to the (i) age (ii) character (iii) locality of the house and (iv) effect which any breach of the obligation has on the state or condition of the house as a whole. This was said to be the law by the Court of Appeal in Bond v Weeks [1999] 1 Qd R 134 at 138. The Court was there concerned with s 7 of the (repealed) Residential Tenancies Act 1975 (Qld), which imposed obligations on a lessor to provide and maintain a dwelling house ‘in good repair and in a condition fit for human habitation’, and to maintain the fixtures and fittings during the course of the tenancy ‘in good tenantable repair.’ I would regard ‘fit for human habitation’ as exactly synonymous with ‘fit for the tenant to live in’, and the phrase ‘good tenantable repair’ as exactly equating to ‘a reasonable state of repair.’ That is to say I would regard the judgment in Weeks as being applicable to the terms of s 103 of the Act as it was to s 7 of the repealed legislation. Wilson J thought likewise in Fine v Geier [2003] QSC 73 at para 56.

[11] In Summers v Salford Corporation [1943] AC 283, a case referred to with approval in Bond, the House of Lords had to consider a section of the (English) Housing Act 1936 which implied a condition into certain tenancies that a let house would be kept ‘in all respects reasonably fit for human habitation.’ The judgments (at 289 per Lord Atkin; at 290 per Lord Thankerton; at 291 per Lord Russell; at 294-5 per Lord Wright) approved an earlier, dissenting, judgment of Atkin LJ in Morgan v Liverpool Corporation [1927] 2 KB 131 at 145:

‘If the state of repair of a house is such that by ordinary user damage may naturally be caused to the occupier, either in respect of personal injury to life or limb or injury to health, then the house is not in all respects reasonably fit for human habitation.’

The test approved by the House of Lords may be paraphrased: if the state of repair of a house is such that injury is to be expected, or will naturally occur, from the ordinary use of the premises they cannot be regarded as fit for human habitation.

[12] A cognate section of the Housing Act was the subject of discussion by the authors of Woodfall, Landlord & Tenant 28^th ed., at paragraphs 1-1475 and 1-1477.
The implied condition in tenancy agreements to which the Act applies was that the landlord of a house should, during the tenancy, keep it in all respects reasonably fit for human habitation. According to Woodfall (at paragraph 1-1477):

‘... [N]ot every defect ... will condemn a house as unfit. It is to be deemed to be unfit for human habitation if and only if it is so far defective ... that it is not reasonably suitable for occupation in that condition ... [T]he standard required by the Act is a lower standard than an obligation to keep premises in good and tenantable repair.’

[13] The Statement of Claim overstates the contractual and statutory duties which the defendant owed the plaintiff as its tenant. Relevantly the contractual and statutory duties imposed on the defendant at the commencement of the agreement were to ensure that the house was fit for the tenant to live in, in the sense just explained.
At the date of the plaintiff’s accident the defendant’s contractual obligation was to maintain the house and particularly the floor tiles, in a reasonable state of repair. The statutory duties imposed on the defendant as at the date of the plaintiff’s accident were to maintain the premises so that they remained fit for the tenant to live in, and to maintain the house and inclusions in good repair. These were the limits of the defendant’s contractual and statutory obligations. In particular there was no contractual obligation to ensure that during the tenancy the house was free from risk to health or safety.

[14] The plaintiff did not in the end urge the Court to find any of the implied terms set out in paragraph 6 of the Statement of Claim. Such an attempt could not have succeeded. The implication of those terms would be inconsistent with the express terms of the agreement which set out, defined and delimited the extent of the defendant’s liability to the plaintiff in respect of providing a habitable dwelling.

[15] In Jones v Bartlett (2000) 205 CLR 166, the High Court had occasion to consider the duty imposed by the common law on a landlord to take care for the safety of its tenant. The case was one in which an adult child of tenants walked into a glass door and received severe lacerations. The glass complied with statutory requirements at the time the house was built. The glass which was not toughened or laminated would not have been approved had the house been built at the time Jones was hurt.

‘There is no such thing as absolute safety. All residential premises contain hazards to their occupants ... [M]ost 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.’

‘A term requiring a lessee [sic] "to provide and maintain the premises in a reasonable state of repair", ... does not require a lessee [sic] to replace items which are undamaged and in good working order, as was the glass door involved in this case.’

At 192 her Honour pointed out that the formulations of a landlord’s duty advanced by Brennan CJ and Gaudron J respectively in Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; (1997) 188 CLR 313 were that the landlord should ensure the premises are as safe from defects as reasonable care and skill could make them, or should take reasonable care for the safety of tenants by putting and keeping the premises in a safe state of repair. Neither formulation would have assisted Jones because ‘the glass door in issue ... was not defective and, not being defective, was not in need of repair.’. In Jones Gaudron J expressly denied that there was a duty on the part of a landlord to ensure that residential premises were as safe for residential use as reasonable care and skill on the part of anyone could make them. At 193, the only duty which her Honour thought the law should impose on a landlord was to take reasonable care to put and keep the premises in safe repair.

‘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 ... 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 conterminous with a requirement that the premises be reasonably fit for the purposes for which they are let, namely habitation as a domestic residence.
This does not exceed the content of statutory requirements in various Australian jurisdictions ... the trend apparent in statute law is a relevant matter in considering the state of development of the common law ... In the present field ... the Court should be slow to hold that the content of a common law duty rises above that which has been imposed by statute in various Australian jurisdictions.’

[19] One of the statutes referred to by their Honours is s 103 of the Act. Their Honours went on (215-6):

‘Premises will not be reasonably fit for the purposes for which they are let where the ordinary use of the premises for that purpose would, as a matter of reasonable foreseeability, cause injury. The duty requires a landlord not to let premises that suffer defects which the landlord knows or ought to know make the premises unsafe for the use to which they are to be put. The duty with respect to dangerous defects will be discharged if the landlord takes reasonable steps to ascertain the existence of any such defects and ... to remove them or to make the premises safe.’

‘The thread running through these cases is that a dangerous defect will, or may, cause injury to persons using the premises in an ordinary way. They are defects in the sense that they are more than dangerous; they are dangerous in a way not expected by their normal use. Many domestic items might be said to be dangerous: gas ovens, caged fans, hard floors, electrical circuits and panes of glass may cause serious or even fatal injuries ... However, they are ordinarily only dangerous if misused. They will only be defective if they are dangerous when being used in a regular fashion and ordinarily would not be dangerous when so used.’

[20] Kirby J appears to have formulated the duty as being one to take reasonable care to avoid foreseeable risk of injury from defects of which the landlord was on notice or of which (by appropriate inspection) he would reasonably become aware because they were obvious to a reasonable landlord or its agent (240-241).

[21] Callinan J (252) was reluctant to concede the existence of a general duty of care in a landlord viz a viz his tenant and thought that if there were such a duty it was ‘no more than a duty to provide, at the inception only of the tenancy, habitable premises.’

[22] From these slightly differing expressions of the duty imposed by the general law upon a landlord I take that duty to be that a landlord must exercise reasonable care not to let premises containing a defect in features or fittings which is of such a nature that it is likely to cause injury in the ordinary occupation of the premises. The duty extends only to the repair or removal of defects of which the landlord knows or which are obvious on an inspection of the premises. This, at least in the view of Gummow and Hayne JJ, is the extent of the obligation imposed by s 103 of the Act to ensure that premises are reasonably fit for habitation. The duty is thus concerned with the repair or removal of defects which a landlord might reasonably foresee would cause injury during the ordinary course of occupation by the tenant.

[23] The expression of the duty found in Summers were made in the context of a case involving a defective window. The window could not be closed, if open, and could not be opened, if closed. It either prevented the ventilation of one of only two bedrooms in the house or allowed cold air and rain to enter. An attempt to open or close the window was likely to result in injury, as in fact happened. The plaintiff in Jones failed essentially because the door was not defective or in need or repair.
In functioned quite adequately as a door and it was only if one carelessly walked into it that there was a risk of injury.

[24] Although the plaintiff’s account of her accident was simple and straightforward there is reason to doubt its accuracy. On 17 September 1999 Christopher Parkes, an insurance loss adjuster, went to the house, by appointment, to photograph the scene of her fall. Unsolicited, the plaintiff told him that ‘she had been watering the garden. This caused water to be present on the tiles near the back fly screen door. [She] walked inside, fell on the tiles which were wet and presumably slippery.’

Mr Parkes told the plaintiff he had come merely to take photographs and that she should not tell him any more. There was no further relevant conversation.
Mr Parkes made a detailed diary note of his inspection within half an hour of his visit. The plaintiff could not recall the event but denied that the tiles had become wet when she hosed her garden. She was adamant she fell when stepping down from the chair.

[25] There is simply no reason not to accept Mr Parkes’ evidence. Despite the brevity of his conversation with the plaintiff the account she gave him of her accident is completely different to the account she gave to the court.

[26] There is evidence which tends to corroborate the fact that the plaintiff did fall when stepping down from a chair. The ambulance officers who attended at the house very soon after her fall made a record of what she told them. Relevantly it was that she ‘stepped down off a chair while fixing something to the ceiling. The patient twisted her leg injuring her knee ...’. The same account appears in a report from the
Queen Elizabeth II Hospital to which the plaintiff was taken by ambulance.
The text of the report is so similar to the record by the ambulance officers it is likely it was copied by the surgeon who provided the report on behalf of the hospital.

[27] On 25 March 1999 the plaintiff’s solicitors wrote to the Medical Superintendent of the hospital to request, ‘a report detailing the injuries sustained in the accident ...’. The letter said: ‘[i]t appears that our client slipped and fell on some high gloss ceramic tiles.’ There is no reference to the plaintiff’s descent from a chair.
On 9 April 1999 the plaintiff’s solicitors wrote to the defendant to give notice of her claim. That letter included the sentence: ‘On 18 February 1999 our client slipped and fell within the Kitchen area of the house, upon high gloss ceramic tiles.’
Again there was no mention of a chair. The hospital report was sent to the plaintiff’s solicitors on 18 November 1999. Subsequently the plaintiff’s solicitors, when instructing a firm of consulting engineers to provide a report, on 4 April 2001 (Exhibit 24) described the accident in the terms pleaded.

[28] By paragraph 11(a) of its Further Amended Defence of 18 February 2004 the defendant alleged that when the plaintiff fell:

‘(i) the floor tiles on which [she] ... placed her left foot were wet or damp,

(v) the Plaintiff did not use either of her hands to steady herself as she was descending from the chair onto the wet ... tiles.’

[29] By paragraph 8 of her Reply the plaintiff admitted that the tiles onto which she stepped with her left foot were wet or damp and that both her feet were bare and wet. By paragraph 9 she denied that she knew the floor tiles were wet or damp.
By paragraph 10 she asserted that she did not know whether she used either of her hands to steady herself as she got down from the chair.

[30] There is a discrepancy between the plaintiff’s account, that she held the arm of the chair with one hand as she descended, with the assertion in the Reply that she had no recollection whether she held the chair or not. The account given in evidence was that the plaintiff had removed the bird cage from its hook and had it in her hand as she stepped off the chair. It will be observed that she told the ambulance officer that she had stood on the chair to attach something to the ceiling. She gave
Dr Bruce Martin, Orthopaedic Surgeon, who examined her on 27 June 2002, a similar account. She told the doctor ‘that she was standing on a chair in order to attach the bird cage to the ceiling. As she stepped down from the chair ... her left foot slipped on the tiles so that the knee collapsed painfully.’ The account given to Dr Gillett on 5 June 2000 was that of ‘slipping on tiles when she was getting off a chair whilst affixing something to the ceiling’.

[31] One might not doubt a plaintiff who was apparently candid and frank in her testimony by reference to inconclusive and perhaps incomplete records made by medical practitioners. Likewise the early correspondence from the plaintiff’s solicitors does not unequivocally point to the plaintiff concealing from them the fact that she stepped from a chair, though it does suggest that the plaintiff had not told her solicitor about the chair in her initial consultation. There is no doubt that she concealed that fact from Mr Parkes. The contradiction between the Reply and the plaintiff’s testimony is significant. The other discrepancies, therefore, also become significant.

[32] It is likely, given the contemporaneous account recorded by the ambulance officers, that the plaintiff did fall when stepping down from a chair. The fact that she sought to conceal that fact leads me to infer that there was something about her manner of descent that, if revealed, would have impaired her claim against the defendant.
The result is that I am prepared to find that the plaintiff was injured when she stepped down from the chair but I am not prepared to accept any other part of her account and in particular her description of her descent. It follows that the part played in her accident by the state of the floor tiles on which she stepped is unclear.

[33] The plaintiff’s case, essentially, is that the floor tiles on the kitchen were so slippery when wet as to constitute a hazard and to make the house unfit for habitation.
Tiles identical to those laid in the house were tendered and became Exhibit 3.
They appear to be typical ceramic tiles commonly found in houses and home units. The surface is smooth and the finish is glazed. There was evidence from
Mr Nicholls, a Project Engineer and former Real Estate Agent, that glazed ceramic tiles with a smooth surface are slippery when wet and more slippery than textured ceramic tiles. He also gave evidence that other sorts of floor coverings, which did not become slippery when wet, were available in 1999 There was no need for expert evidence to prove these facts, which are obvious.

[34] The plaintiff rested her case substantially on an investigation of the degree to which the tiles provided a grip when wet. The investigation was undertaken by
Mr Nicholls’ company and by an employed Engineer, Mr Armbruster, who subjected the tiles, the surface of which was wet, to a test to determine their co-efficient of friction. A weight was suspended from a swinging pendulum, the arc of which let the weight brush across the tile surface. The decrease in the amplitude of the pendulum’s swing caused by the contact of the weight with the tile surface was measured and computed to give the co-efficient of friction. It produced a numerical result of 0.11, which is, by itself, meaningless. The result of the tests was said to be that ‘the ... tile surface cannot be classified as slip resistant when wet.’

[35] This conclusion can only be drawn from the test result by reference to the terms of Australian/New Zealand Standard 3661.1:1993 ‘Slip Resistance of Pedestrian Surfaces’. The preface to the Standard explains that it was prepared as the first of two parts dealing with slip resistance. The second part was to be ‘a guide to reducing slip hazards.’ If the second part of the standard has been completed it was not proved in evidence. Part 1, a copy of which became Exhibit 33, is concerned with the proper method of arriving at a numerical value for the co-efficient of friction of floor surfaces. Mr Armbruster followed the terms of the Standard when conducting his tests. The standard provided:

‘1 SCOPE This Standard specifies the minimum coefficient of friction values for pedestrian surfaces when measured in accordance with the test methods set out in Appendices A and B...

2 APPLICATION It is intended that this Standard be used as a test method to establish the slip resistance of a pedestrian surface in either the ‘wet’ or the ‘dry’ condition. A surface with a coefficient of friction equal to or greater than the minimum values specified in Clause 5 is considered to be slip resistant.

Unless otherwise stated, the method specified for the measurement of wet slip resistance is used for all wet areas. Wet areas are all external pedestrian areas plus those internal pedestrian surfaces that are normally wet during use.’

Clause 5 of the Standard provides that the co-efficient of friction for a wet surface should be not less than 0.4.

[36] The plaintiff’s case made no attempt to translate the numerical test results to the realm of practicality or common experience. It is obvious that the tiles in question, when wet, provided less friction than the authors of the standard thought appropriate for a wet area that is, a surface normally wet during use but beyond that the evidence seems to be without value. It says nothing about the suitability of the tiles for use in a kitchen where the tiles will normally be dry.

[37] Mr Stephenson (Exhibit 31) drew attention to the terms of a handbook published in connection with AS4586:1999 ‘Slip Resistance Classification of New Pedestrian Surface Materials.’ The handbook stated:

‘AS/NZS 4586 establishes a new philosophy. The Standard rejects the concept of a universal minimum slip resistant threshold value that is both practical and safe. In equating safety with a coefficient of friction, one has to consider all the relevant variables, as well as whether the result has been unduly influenced by the method of slip resistance measurement. The slip potential is a function of footwear, activities, gait, contamination, environment and other factors. Thus, the wet pendulum test results are now classified in terms of ‘contribution of the floor surface to the risk of slipping when wet’.’

[38] The Standard had no statutory force. Nor did use of the tiles contravene any requirement of the Building Act 1975 (Qld), the Standard Building By-Laws 1991 (Qld) or the Building Code of Australia (see Exhibit 31). When the house was built there was no Australian Standard which specified an appropriate characteristic for the floor coverings of dwelling houses in terms of slip resistance.

[39] Two other facts should be mentioned. The first is that on 12 March 1999 following notification that the plaintiff had fallen and been hurt, the defendant engaged contractors to wash the surface of the tiles with acid to remove the glaze and make them less slippery when wet. The plaintiff remained concerned that the tiles ‘were still very slippery’ and told the defendant so. In about September 2001 the defendant removed the tiles and replaced them with others. The only evidence as to the type of surface of the replacement tiles appears in the photograph Exhibit 4, and in the work order, which described the new tiles as ‘non slip’.

[40] The second fact to mention is that at about the time the plaintiff went into occupation of the house it was inspected by an employee of the defendant who compiled a property condition report which described the floor coverings in all parts of the house as ‘good’. Indeed that description was applied to all parts of the house, its fixtures and fittings. In the form provided, ‘good’ was the highest standard available as a description. A copy of the report was given to the plaintiff for her acceptance or dissent. She did not demur to the inspector’s assessment. Another inspection of the property on 27 August 1998 showed that all floor coverings, including the tiles, were in good condition, clean, undamaged and in working order. The plaintiff signed a copy of the report to indicate her agreement with its contents.

[41] A number of points emerged in the evidence of Mr Stephenson. The first was that ceramic tiles of the type used in the house were commonly used as floor coverings. Tile suppliers did not provide any information about the co-efficient of friction of tiles offered for sale, or any other means of gauging slip resistance of particular tiles. Glazed smooth ceramic tiles had a number of positive attributes. They were aesthetically pleasing, durable and easy to keep clean. It was not common in 1992 and 1997 (the years respectively in which the house was built and purchased by the defendant) for slip resistant ceramic tiles to be used in kitchens. It is still not common. Slip resistant tiles are common in commercial kitchens and in public areas used by pedestrians. Other floor coverings commonly found in homes, such as sheet vinyl, cork tiles and polished timber, can also be slippery, depending on conditions such as the presence of moisture or other contaminants. It was not common for architects to proffer advice about the type of floor coverings to be affixed to kitchen floors. The choice is normally made by builders or owners. Nevertheless, had Mr Stephenson been asked, he would not have recommended a smooth glazed ceramic tile for a kitchen floor because of their tendency to be slippery when wet.

[42] The question, the answer to which will determine whether the defendant has any liability to compensate the plaintiff for her injuries, can be briefly stated.
It is whether the tiled floor of the kitchen made the house unfit for the plaintiff to live in. The question relates to the propensity of the tile surface to become slippery when wet. The question thus becomes whether the house was unfit for the plaintiff to live in by reason of the fact that the floor surface in the kitchen was slippery when wet. I have taken the formulation of the question from the terms of clause 8 of the agreement and s 103 of the Act as amended in 1998. The obligation on the defendant was to provide, at the commencement of the tenancy and during it, premises that were fit for the tenant to live in. The duty was the same whether its origin was contractual or statutory. The authority of Jones I regard as establishing that the duty on a landlord at common law is no higher or greater than that imposed by the statute and, in this case, the agreement. There is no evidence that the defendant knew of the slipperiness of the tiles when they were wet. The plaintiff did not tell it. The inspections did not reveal any danger. There was, in any event, no defect to be discovered. There was therefore no negligence in the defendant

[43] One can disregard obligations imposed on the defendant to keep the premises clean and in good repair. These are the other obligations found in clause 8 and s 103.
No question as to cleanliness arises. Nor is there any suggestion that the tiles were in any way defective or in need of repair. They were not broken, or loose, or uneven. There were no missing tiles. The question is whether by reason of the innate characteristic – the smooth glossy surface of the tiles – the house was unfit for habitation.

[44] The plaintiff had lived in the house almost two years before her accident and had made no complaint about the tiles. To the extent that they were slippery when wet she must have observed that in the course of her occupation. The plaintiff concurred in a description of the kitchen floor as ‘good’. Two inspections of the house had not discovered any defect in the floors.

[45] It is significant that the floor tiles were not defective or in need of repair and that the house had been constructed in compliance with the relevant building codes and statutes. The subject matter of complaint is that the tiles, when wet, were slippery, and to that extent constituted a threat to the safety of its inhabitants. The threat was easily removed. Any liquid that fell onto the floor could be removed by a towel or mop. This is what happens in the ordinary course of domesticity. The area involved was small and the occupants of the house were only three in number.
The chance that liquid might fall onto the floor and go unnoticed was small.
A spill which was known about, and which therefore constituted a recognised hazard, could be quickly and easily removed by the plaintiff or one of her children.

[46] The fact that a house may contain features which in some circumstances may be dangerous does not make it unsafe or unfit for habitation as Gleeson CJ pointed out in Jones. The description of a house unfit for habitation, accepted as accurate in Summers, is that of a state of repair such that by ordinary use damage to the occupant may naturally occur. The house was in good repair. The ordinary use of the house did not naturally expose the plaintiff or her children to danger.
The ordinary use of the house would involve its occupants walking on dry floors and there is no complaint about the tiles in that condition. Ordinary usage would also involve promptly mopping up any water that accidentally spilt onto the floor. In these circumstances it can only be concluded that the house was fit for the plaintiff to live in.

[47] A consequence of this finding is that it is irrelevant that an alternative floor covering might have been installed, when the house was built, for no greater cost than the ceramic tiles occasioned. It is also irrelevant that an architect such as
Mr Stephenson would not have recommended the tiles for use in a kitchen.

[48] I cannot find whether the floor was wet or dry when the plaintiff stepped down from the chair. She told Mr Parkes’ that the kitchen floor was wet because water had splashed into the room when the plaintiff was hosing outside. She said in evidence that water had not splashed onto the tiles, though she admitted her feet were wet.
I cannot find what the plaintiff was doing when she stood on the chair or how she descended but I think it unlikely that she had hold of the back of the chair with her hand or hands as she stepped down.

[49] The plaintiff has not proved that her fall was caused by any condition of the house, which was in any event, fit for habitation. The fall was not the result of any breach of duty on the part of the defendant.

[50] The parties did not make any submission with respect to the question whether the principle which is identified and discussed in Austin v Bonney [1999] 1 Qd R 114 at 118-119 and 130-131 has any application to s 103 of the Act or clause 8 of the agreement. In particular the defendant did not argue that it was not in breach of any obligation to put and maintain the house in a condition fit for the plaintiff to live in because the plaintiff had not drawn its attention to the slippery condition of the tiles and had not given it a reasonable opportunity to replace them. In may be difficult to apply the Austin principle in view of the terms in which s 103(2) of the Act is expressed. The point was not argued and I have not considered it.

[51] There must be judgment for the defendant but I will briefly assess damages.

[52] The plaintiff’s injuries are well documented. She has been left with significant impairment in the use of her left leg and continues to suffer pain and discomfort in her left knee. As a result of the fall she suffered a dislocation of the patella and injury to both cruciate and medial ligaments. Her leg was immobilised in plaster and she was discharged but had to return to hospital almost immediately to receive treatment for severe and intractable pain. On 13 April 1999 she underwent an arthroscopy which was followed by a course of physiotherapy. On 26 October 1999 the plaintiff underwent further surgery during which a dacron prosthesis was inserted to augment the damaged cruciate ligament. There were further operations in September 2000 and mid 2001. During one of the operations an attempt to repair the damaged ligament by means of a synthetic adjustment led to a fracture to the lower end of the femur. After each operation the plaintiff was immobilised and had to undergo physiotherapy. Her suffering has been severe.

[53] The plaintiff’s knee remains unstable and painful. The plaintiff cannot kneel, and squats with difficulty. She has trouble negotiating stairs and walking up and down hills. Any twisting or pivoting motion leads to a feeling of instability. There is some numbness in the knee. Sitting for any length of time is painful.

[54] Dr Gillett thought the plaintiff had a 30 per cent impairment in the use of her left leg. She is at risk of developing premature osteoarthritis and it is likely that in her 60’s she will require a knee replacement. It is the doctor’s opinion that the plaintiff is not suited for work which involves standing for extended periods of time, or which requires squatting, kneeling or climbing.

[55] The plaintiff was born on 7 October 1967. She was 31 when injured and is now 36. She has two children but has never married. Her early life was marked by disruption and insecurity. She has no formal vocational qualifications but has worked in several occupations. She has shown an interest in working for a community housing organisation funded by the State Government and had commenced to work part-time before her accident. The work involved allocating accommodation to those seeking public housing and inspecting properties let by the defendant. Her lack of mobility and discomfort are a handicap in performing this aspect of that occupation. In any event she lost an opportunity to take up full time work by reason of her injury. She now works part-time for a few hours a week in two separate jobs performing general office work. She copes but experiences pain.

[56] The plaintiff was unable to perform a number of household tasks during her immobilisation and recovery. She required assistance from her children and friends and will require some similar assistance in the future.

[57] There is a prospect, indeed a probability, that the plaintiff will require surgery to replace her knee joint in about 30 years time.

[58] The plaintiff’s knee is heavily scarred as a result of the surgery she has undergone. The scars are plainly visible and cause the plaintiff embarrassment.

[59] I am satisfied that had she not been injured the plaintiff would have sought the kind of employment she has found and undertaken it to a greater extent than she now can. It is not possible to assess with any precision what she would have done or what hours on average per week she would have earned but she struck me as being an industrious woman who would have tried to make something of her life.

[60] As a result of her injury, enforced immobility, continuing pain and the consequences these had for her plans to work and assume some financial independence the plaintiff has become depressed. Her early personal history predisposed her to that condition but its onset is, on the evidence, a sequel to her physical injury.

^[1] Particulars of this paragraph added a reference to an obligation to keep the house in a fit condition
for the plaintiff to live in

Supreme Court of Queensland

Gray v Queensland Housing Commission [2004] QSC 276 (1 September 2004)