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Northern Sandblasting Pty Ltd v Harris (by her next friend Harris)

(1997) 188 CLR 313

(Decision by: Brennan CJ)

NORTHERN SANDBLASTING PTY LTD v NICOLE ANNE HARRIS (an infant by her next friend PAMELA HARRIS)

Court:
HIGH COURT OF AUSTRALIA

Judges:
Brennan CJDawson
Toohey
Gaudron
McHugh
Gummow
Kirby JJ

Subject References:
NEGLIGENCE
Duty of care
Personal injury
Leased premises
Electrical faults
Injury to child of tenants
Duty of landlord in respect of occupied premises
Proximity
Assumption of responsibility
Control and vulnerability
Whether under non-delegable duty to ensure premises safe.
Duty of landlord in respect of premises prior to occupation
Analogy with duty of occupier to invitee
Whether under duty to ensure premises as safe for habitation as reasonable care and skill can make them
Whether under duty in respect of defects which pose special dangers and which are discoverable on inspection only by persons exercising special care and expertise.
LANDLORD AND TENANT
Statutory obligations imposed on landlord
Obligation to provide and maintain premises in a condition reasonably fit for human habitation pursuant to s 106 of the Property Law Act 1974 (Q)
Obligation to provide and maintain premises in good tenantable repair and in a condition fit for human habitation pursuant to s 7 of the Residential Tenancies Act 1975 (Q)
Construction and interaction of obligations imposed by statute
Whether obligations imposed as contractual obligations between landlord and tenant
Ability of third party to sue for damages for breach of obligations
Availability of relief pursuant to s 55 of the Property Law Act 1974 (Q).

Other References:
Property Law Act 1974 (Q), ss 55, 105, 106.
Residential Tenancies Act 1975 (Q), s 7.

Judgment date: 14 AUGUST 1997

Decision by:
Brennan CJ

On 4 June 1987, Mrs Harris asked her 9- year old daughter, Nicole Anne Harris (the respondent), to turn off an outside water tap that was supplying a garden sprinkler. Nicole, who was in bare feet standing on wet grass, was electrocuted when she went to do so. She suffered severe brain damage which leaves her in a vegetative state. By her next friend she brought action in the Supreme Court of Queensland against Mr Briggs, an electrician who had repaired a stove in the house, The North Queensland Electricity Board ("the Board"), Northern Sandblasting Pty Ltd ("the landlord") which is the owner of the premises, and her parents, Mr and Mrs Harris, who were the tenants of the premises. The claim against Mr and Mrs Harris was abandoned. Wisely so, as Derrington J observed. At trial, his Honour found Mr Briggs to be guilty of negligence and he gave judgment against him, assessing Nicole's damages at the sum of $1,204,429.82. His Honour acquitted the Board and the landlord of negligence. On appeal to the Court of Appeal against his Honour's judgment dismissing Nicole's claim against the landlord, a majority of the Court (Fitzgerald P and McPherson JA, Pincus JA dissenting) allowed the appeal. Judgment was entered for the plaintiff against the landlord for damages in the amount assessed by Derrington J. The landlord appeals by special leave against the judgment of the Court of Appeal.

The facts

The landlord bought the house property in July 1984. At that time, the local electricity supplier, the Board, inspected the premises. In November 1986 Mr Briggs, who was the landlord's usual electrical contractor, checked and repaired a refrigerator and stove in the premises. Mr and Mrs Harris entered into possession of the premises as tenants on about 12 December 1986 under an oral agreement for a periodic tenancy at a rental of $100 per week. When the tenants entered into possession, electrical power was already connected to the house. There was no inspection of the electrical system in the house either at that time or at any subsequent time prior to Nicole's accident on 4 June 1987.

On 2 June 1987, Mrs Harris informed the landlord that the stove was not working. The landlord engaged Mr Briggs to carry out the repair. The active wire carrying electric current to a hotplate terminal had to be reconnected. Derrington J described the work done by Mr Briggs:

"The fault was simple enough and his repair of it was competent and effective. He cut off some burned active wire, removed a short length of insulation so as to expose undamaged wire, and connected the exposed length to the hotplate element by means of the screw on the ceramic base. A short length of the active wire remained exposed above the screw, with the potential for its contact with the slack earth-wire nearby. However he failed to ensure that it could not do so, and he then replaced the cover plate."

The earth wire had been attached to a metal strip extending from the hotplate element but it was not rigidly attached and, because it was slack, it could easily move and foul the exposed active wire. Mr Briggs should have ensured that it could not do so. Derrington J found Mr Briggs negligent because he failed to isolate the earth wire connected to the stove from the active wire carrying the current to the hotplate.

At the time of Nicole's accident, the hotplate was switched on, the earth wire fouled the active wire and carried the current to the water pipes. The water pipes were electrically alive because of two defects in electrical wiring. One defect was the slack earth wire which fouled the active wire attached to the hotplate terminal. The second was a defect which prevented the safety mechanism of the house electrical system from cutting the electrical current once the earth wire fouled the active wire. I take the following explanation of the system from the findings made by Derrington J.

Electricity was supplied to the house in a cable which contained an active wire and a neutral wire. Electrical current enters electrical equipment from the active wire and makes a circuit, leaving through the neutral wire back to the general power system. If there is a short-circuit, an earth wire attached to the equipment should carry the current to a major earth wire which runs to the domestic switch box where the major earth wire is connected through a "neutral link" to the neutral wire, thus completing the circuit. If excessive power flows through the active wire because of a short-circuit, a fuse will blow in the fuse box and the circuit breaks. In the present case, when the earth wire attached to the stove fouled the active wire where it was attached to the hot plate, the earth wire should have carried the excess current to the neutral link in the power box for a moment until the fuse blew. But the major earth wire had been pulled out of its socket in the neutral link or was too loose in the socket to provide an efficient connection. Instead, electricity was conducted from the active wire into the earth wire and, from there, to the water pipes.

The major earth wire is connected to the water pipes as well as to the neutral link as an additional safety measure. If this measure is effective, the current is conducted along the pipes and through the ground to a metal spike that is near the pipes and close to a power pole outside the property. As the metal spike is connected to a neutral wire on the power pole, an unimpeded flow of current through the pipes to the metal spike should complete the circuit to that neutral wire producing much the same effect as if the current had flowed through the neutral link to the neutral wire in the power box. But it sometimes happens, and it happened in this case, that the ground between the pipes and the metal spike is a poor conductor of electricity. The fuse did not blow and the pipes remained charged with electrical power. When the plaintiff, in bare feet on the wet ground, touched the tap, the current flowed through her body with tragic results.

Nicole's injuries were caused by two concurrent faults, namely, the defective connection of the earth wire to the neutral link in the power box and the fouling of the active wire attached to the stove hotplate by the earth wire. The latter fault was caused by Mr Briggs' negligence. The former fault would have been discovered and corrected when the tenants went into possession had there been a visual inspection of the power box at that time. That fact was not disputed by the Board. In any event, his Honour found that it was probable that inspection would have led to that result. But his Honour acquitted the Board of negligence, as it was not required to conduct an inspection of premises to which power was already connected. His Honour found also that "there was probably no activity associated with the neutral link between that date when it is alleged that the inspection should have been made [by the Board] and the date of the accident". This was an important finding for two reasons. First, it shows that "the untidy work of the tradesman who had left the tangle of wires that probably withdrew the earth wire from its socket" occurred before the tenants were let into possession. Secondly, it affected the issues between Nicole and the landlord. By her amended statement of claim she alleged, inter alia, that the landlord -

"3G. In breach of its duty of care owed to the Plaintiff and in breach of its aforesaid statutory duty the Third Defendant:

(a)
failed to inspect the premises adequately or at all before allowing the Plaintiff and her family into possession of them;
(b)
failed to have the premises inspected adequately or at all before allowing the Plaintiff and her family into possession of them".

Although his Honour held that the landlord owed Nicole a general duty of care Nicole failed, in his Honour's view, to show a breach of that duty because -

"there was no hint of any such fault [that is, a general fault in the system] in the general circumstances known to the landlord, and it is not shown that the installation had been in place without investigation for so long that an ordinary person in the landlord's position should have thought of the possibility of a fault from that source. It is even more so in respect of the development of a fault from the work of the electrician who had left the tangle of wires which exerted the withdrawing force on the earth-wire. The same applies to any failure on his part to tighten the screw sufficiently because of an awkward placement of the link. It is not proved that the landlord, as a lay-person and not an expert, knew or ought to have known of anything which might have indicated earlier or more frequent inspections. Nor was it shown that there were any circumstances that in prudence required an inspection despite the absence of any such indications."

Derrington J dismissed the action as against both the Board and the landlord. In the Court of Appeal a different legal effect was attributed by the respective judgments to the facts found by his Honour. Fitzgerald P was of the opinion that, in all the circumstances of the case, including the fact that "the defect in the earthing safety- system was readily ascertainable", the landlord was required "as an aspect of letting its house for reward ... to ensure its fitness for human habitation, including the safety of the electricity system and electrical equipment". Pincus JA, on the other hand, held that Nicole failed against the landlord because, inter alia, there was no evidence "that good practice necessitated an inspection, of such a kind as to discover the fault in the neutral link". McPherson JA found for Nicole on the ground that she was entitled to rely on s 106(1)(a) of the Property Law Act 1974 (Q) which his Honour held to "confer a right of action for breach that is available to the plaintiff in the present case".

In this Court, Nicole's counsel puts her entitlement to recover against the landlord on four alternative bases:

1.
Breach of a common law duty of care owed by the landlord to the tenants and the tenants' family to ensure that the electrical system in the premises as let was in a safe condition. This breach occurred because the major earth wire was not connected to the neutral link in the switchbox.
2.
Breach of a non-delegable duty of care owed by the landlord to the plaintiff in the doing of the work repairing the stove. This breach occurred because the active wire attached to the hotplate terminal was not effectively isolated from the slack earth wire nearby.
3.
Breach of a statutory duty imposed by s 106(1)(a) of the Property Law Act 1974 (Q).
4.
Breach of a statutory duty imposed by s 7(a) of the Residential Tenancies Act 1975 (Q).

The breaches alleged in the last two bases comprehend both the fault in the neutral link and the fault arising from the slack earth wire in the stove. It is convenient to consider the propounded bases of liability under three headings: statutory liability of the landlord, the landlord's liability for Mr Briggs' negligence and the landlord's liability in letting the premises in an unsafe condition.

1. Statutory liability

At common law, the general rule is that if a landlord lets premises in a dangerous state, making no promise that the state of the premises is sound, and the tenant agrees to take the premises in their existing condition, the landlord incurs no contractual liability should the danger cause the tenant injury [F1] . A condition of fitness may be implied if the premises are let for the purpose of residence and are furnished or partly furnished [F2] but, as none of the tenant's family, invitees and licensees is party to the lease or agreement for lease, none of them has a contractual right against the landlord if the condition of fitness is not satisfied [F3] . In Cavalier v. Pope [F4] Lord Macnaghten and Lord Atkinson affirmed the statement of Erle CJ in Robbins v. Jones [F5] that:

"A landlord who lets a house in a dangerous state, is not liable to the tenant's customers or guests for accidents happening during the term; for, fraud apart, there is no law against letting a tumble-down house; and the tenant's remedy is upon his contract, if any."

In Queensland, a tenant's contractual rights in respect of the condition of premises let for the purpose of human habitation were statutorily prescribed by the Property Law Act 1974 (Q) and later by the Residential Tenancies Act 1975 (Q). Section 106(1)(a) of the former Act reads as follows:

"(1) In a lease of premises for a term of 3 years or for any less period there is an obligation -

(a)
on the part of the lessor, in the case of a lease of premises for the purpose or principally for the purpose of human habitation, to provide and maintain the premises or such part as is let for such purpose in a condition reasonably fit for human habitation".

This provision was overtaken by s 7(a) of the Residential Tenancies Act which reads as follows:

"Notwithstanding any agreement between a landlord and tenant, in every tenancy agreement entered into after the commencement of this Act there shall be implied obligations -

(a)
on the part of the landlord -

(i)
...
(ii)
to provide and, during the tenancy, maintain the dwelling-house in good tenantable repair and in a condition fit for human habitation;
(iii)
to maintain during the tenancy fixtures, fittings, goods and chattels let with the dwelling- house in good tenantable repair;
(iv)
to comply with all lawful requirements in regard to health and safety standards with respect to the dwelling-house;
(v)
..."

It may be that s 7(a) of the Residential Tenancies Act repeals the provisions of s 106(1)(a) of the Property Law Act , but it is unnecessary to determine that question. The effect of either provision is to impose an obligation on the landlord as though it were an obligation imposed by a term of the lease or tenancy agreement. The construction of statutory provisions which prescribe the terms to be implied or to be deemed to be incorporated in a contract was considered by this Court in Wallis v. Downard-Pickford (North Queensland) Pty Ltd [F6] in reference to a provision of s 74 of the Trade Practices Act 1974 (Cth). That section provides that a warranty of care and skill should be implied in contracts for the supply of services by a corporation in the course of a business. Toohey and Gaudron JJ adopted [F7] what I had said in Arturi v. Zupps Motors Pty Ltd [F8] in reference to s 71 of the Trade Practices Act . I said that that section:

"takes effect by imposing an obligation upon one of the contracting parties as though the parties had embodied the obligation in their contract. No doubt it is right to say that the obligation is statutorily created ... But by describing the obligation as an implied condition, s 71 defines the nature of the obligation. It is an obligation which takes effect by a legal fiction, namely, that the parties had made a contract which included the obligation ... [A] breach of the obligation is not to be treated as a breach of an obligation imposed upon the obligor by the Act dehors the contract, but as an obligation imposed by the contract itself."

The House of Lords adopted a similar approach to the construction of a statute [F9] similar to the Queensland statutes in McCarrick v. Liverpool Corporation [F10] . In that case, Lord Uthwatt said [F11] :

"On the language of the section it is clear that the effect of the section is to include in the tenancy agreement a contractual obligation binding the landlord to the tenant, not to subject the landlord to a statutory duty of performance."

In O'Brien v. Robinson [F12] , the House of Lords considered the effect of s 32 of the Housing Act 1961 (UK), which provided for an implied covenant by the landlord to keep in repair the structure and exterior of the relevant dwelling house. Lord Diplock referred to McCarrick , among other authorities, and said [F13] that:

"[A]l though created by statute the legal nature of this obligation was contractual. Its characteristics were the same as those of an obligation created by a repairing covenant in a lease. What the statute was providing was that any contract for the letting of premises to which it applied should be read and given effect to as if it contained an express covenant by the landlord to keep the premises in such a state of repair as would make them reasonably fit for human habitation. The landlord's obligation lies in the field of contract, not of tort. His duty is not one of reasonable care to avoid injury to the tenant. It is a duty to perform his contract." (Emphasis added.)

Adopting this approach to the construction of the Queensland statutes, neither of them on its face creates any contractual right in Nicole against the landlord. The lease or agreement for lease determines the right of a tenant as against a landlord with respect to the condition of premises, but not the right of one whom the landlord allows to enter upon the premises in some other capacity [F14] .

However, it is submitted that s 55 of the Property Law Act conferred on Nicole a right commensurate with the tenant's right imposed by s 106(1)(a) of the Property Law Act or by s 7(a) of the Residential Tenancies Act. Section 55 reads as follows:

" Contracts for the benefit of third parties
(1) A promisor who, for a valuable consideration moving from the promisee, promises to do or to refrain from doing an act or acts for the benefit of a beneficiary shall, upon acceptance by the beneficiary, be subject to a duty enforceable by the beneficiary to perform that promise.
...
(6) In this section -
'acceptance' means an assent by words or conduct communicated by or on behalf of the beneficiary to the promisor, or to some person authorised on the promisor's behalf, in the manner (if any), and within the time, specified in the promise or, if no time is specified, within a reasonable time of the promise coming to the notice of the beneficiary.
...
'promise' means a promise -

(a)
which is or appears to be intended to be legally binding; and
(b)
which creates or appears to be intended to create a duty enforceable by a beneficiary;

and includes a promise whether made by deed, or in writing, or, subject to this Act, orally, or partly in writing and partly orally."

In my opinion, s 55 has no application to the terms implied in a lease or a tenancy agreement by force of s 106(1)(a) of the Property Law Act or by force of s 7(a) of the Residential Tenancies Act. Although those provisions impose on the landlord obligations ascertained as though they were imposed by contract, s 55 operates only upon duties created by de facto promises. There must be a promise "to do ... an act ... for the benefit of a beneficiary". The phrase "for the benefit of a beneficiary" is descriptive of the promised act. From the context of s 55, it appears that the identity of the beneficiary must be ascertainable from the terms of the promise made. The beneficiary is not any person who, in the event, would have been benefited had the promise been fulfilled. If that had been the intention of the legislature, the duty which s 55 imposes would have been owed to the world at large or, at the least, to any person who may foreseeably have been benefited by the discharge of the duty. That that was not the intention of the legislature can be seen from the requirement that a duty to perform the promise becomes enforceable by a beneficiary "upon acceptance by the beneficiary". In other words, the acceptance must be made by a person who, from the terms of the promise, can be identified as a beneficiary capable of accepting the benefit of the promise.

Section 55 has no application in the present case where the statutorily-implied promise is not a promise to do an act to benefit any beneficiary other than the tenant. Indeed, if s 55 were held to expand the categories of beneficiaries who might enforce contractually the rights conferred on a tenant by either s 106(1)(a) of the Property Law Act or by s 7(a) of the Residential Tenancies Act , it would be impossible to predicate on any logical basis the categories of beneficiaries who might be entitled under s 55. If s 55 could operate to confer the rights capable of enforcement contractually on members of a tenant's family, would not sub-lessees, or invitees, or licensees, or passers-by have the same rights? The question has only to be asked in order to perceive the answer.

I would therefore reject Nicole's claim so far as it is founded on the Property Law Act or the Residential Tenancies Act .

2. Landlord's liability for Mr Briggs' carelessness

The work which Mr Briggs did in connecting the active wire to the hotplate terminal was not done as the landlord's servant. Mr Briggs was an independent contractor. The general rule to be applied when a plaintiff suffers by reason of an independent contractor's negligence in performing a task at the request of a defendant was stated by Dixon J in Colonial Mutual Life Assurance Society Ltd v. Producers and Citizens Co-operative Assurance Co of Australia Ltd [F15] :

"In most cases in which a tort is committed in the course of the performance of work for the benefit of another person, he cannot be vicariously responsible if the actual tortfeasor is not his servant and he has not directly authorized the doing of the act which amounts to a tort. The work, although done at his request and for his benefit, is considered as the independent function of the person who undertakes it, and not as something which the person obtaining the benefit does by his representative standing in his place and, therefore, identified with him for the purpose of liability arising in the course of its performance. The independent contractor carries out his work, not as a representative but as a principal."

When this rule applies, no vicarious liability for the independent contractor's negligence is imposed on a defendant who requested the performance of the task in the course of which the relevant negligent act was done or the relevant negligent omission was made. In such a case, there is no basis for sheeting home to the defendant either liability for the independent contractor's tort or responsibility for the independent contractor's act or omission [F16] .

However, if the defendant is under a personal duty of care owed to the plaintiff and engages an independent contractor to discharge it, a negligent failure by the independent contractor to discharge the duty leaves the defendant liable for its breach. The defendant's liability is not a vicarious liability for the independent contractor's negligence but liability for the defendant's failure to discharge his own duty [F17] . The duty in such a case is often called a "non-delegable duty".

In principle, no duty owed by A to B can be delegated to C. If it were otherwise, the mere delegation would discharge A's duty to B. The difference between a duty and its discharge appears clearly in the speech of Lord Blackburn in Hughes v. Percival [F18] where, in reference to the duty owed by the defendant to his neighbour in making use of the party-wall between them, his Lordship said:

"But I think the law cast upon the defendant, when exercising this right, a duty towards the plaintiff. I do not think that duty went so far as to require him absolutely to provide that no damage should come to the plaintiff's wall from the use he thus made of it, but I think that the duty went as far as to require him to see that reasonable skill and care were exercised in those operations which involved a use of the party-wall, exposing it to this risk. If such a duty was cast upon the defendant he could not get rid of responsibility by delegating the performance of it to a third person. He was at liberty to employ such a third person to fulfil the duty which the law cast on himself, and, if they so agreed together, to take an indemnity to himself in case mischief came from that person not fulfilling the duty which the law cast upon the defendant; but the defendant still remained subject to that duty, and liable for the consequences if it was not fulfilled."

In Kondis v. State Transport Authority [F19] , in the course of reviewing earlier cases, Mason J observed:

"On the hypothesis that the duty is personal or incapable of delegation, the employer is liable for its negligent performance, whether the performance be that of an employee or that of an independent contractor."

Although the duty is personal to the defendant, the term "non-delegable" does not mean that the defendant cannot get another to discharge the duty. As Lord Hailsham of St Marylebone said in McDermid v. Nash Dredging Ltd [F20] in reference to an employer's duty to his employee, "non-delegable" means "only that the employer cannot escape liability if the duty has been delegated and then not properly performed". The problem is not so much to classify a duty as delegable or non-delegable as to identify the content of the duty. However, there are some categories of relationship that give rise to a duty to perform certain tasks that cannot be discharged merely by employing an independent contractor to perform them. As the majority judgment in Burnie Port Authority v. General Jones Pty Ltd [F21] observed:

"It has long been recognized that there are certain categories of case in which a duty to take reasonable care to avoid a foreseeable risk of injury to another will not be discharged merely by the employment of a qualified and ostensibly competent independent contractor."

Thus the "non-delegable" duty of an employer was stated by this Court in Ferraloro v. Preston Timber Pty Ltd [F22] in these terms:

"The employer's duty, to whomsoever it falls to discharge it , is to take reasonable care to avoid exposing his employee to an unnecessary risk of injury and the employer is bound to have regard to a risk that injury may occur because of some inattention or misjudgment by the employee in performing his allotted task." (Emphasis added.)

The question whether a defendant who employs an independent contractor to perform a given task is liable as for a breach of the defendant's own duty in the event of negligence on the part of the independent contractor in performing the task is not answered by pointing to the independent contractor's negligence [F23] . The independent contractor's negligence is material only in showing the non-discharge of any duty that may have been imposed on the defendant. The basic question is whether any and what personal duty was imposed upon the defendant in the circumstances of the case. Apart from well-established relationships that give rise to non-delegable duties [F24] , it is not easy to distinguish between the circumstances which give rise to a duty that is discharged by the selection of a competent independent contractor to undertake a particular task and the circumstances which give rise to a duty that can be discharged only by the non-negligent performance of the task. Mason J essayed a definition of the material relationships that would give rise to a non-delegable duty in Kondis v. State Transport Authority [F25] :

"[T]he special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised."

In cases where this special duty is imposed on a person in relation to a particular task, that person is under a duty not only to use reasonable care but to ensure that reasonable care is used by any independent contractor whom he employs to perform that task [F26] . Moreover, if the task which an independent contractor is employed to perform carries an inherent risk of damage to the person or property of another and the risk eventuates and causes such damage, the employer may be liable even though the independent contractor exercised reasonable care in doing what he was employed to do, because the employer authorised the running of the risk and the employer may be in breach of his own duty for failing to take the necessary steps to avoid the risk which he authorised. In Burnie Port Authority v. General Jones Pty Ltd [F27] , following Stephen J in Stoneman v. Lyons [F28] , I noted that the employer of an independent contractor would be personally liable:

"if the risk of damage arises from the way in which the work will necessarily be done or from the way in which the employer expects that it will be done [F29] , for in each of those situations the incurring of the risk is authorized by the employer. But the employer is not liable merely because it is foreseeable that the independent contractor might, on his own initiative, adopt a careless way of doing the work. If liability were imposed on an employer in that situation, the employer would become a virtual guarantor of the independent contractor's carefulness."

Cases of special relationships aside, the duty of care that arises when a task to be performed does not carry an inherent risk of damage to the person or property of another may be discharged by the engaging of a competent independent contractor to perform it. Whether a task does or does not carry an inherent risk of damage to another's person or property is a question of fact to be determined in the light of common experience.

In the present case, when Mrs Harris advised the landlord that the stove was not working, the landlord appears to have accepted that it was its contractual duty to get the stove repaired. The work could be undertaken only by a licensed electrician [F30] . The repair could not be undertaken by the landlord's unlicensed servants. The fact that negligence on the part of Mr Briggs might foreseeably cause injury to Nicole or to some other member of the tenants' family or to the tenants' visitors was not enough to impose a "non-delegable" duty of care on the landlord. Nor was the relationship between the landlord and the tenants and their family sufficient to impose on the landlord a non-delegable duty of care in effecting repairs to the premises or to equipment in the premises that were needed because of ordinary wear and tear during the tenancy or because of some other reason apart from the landlord's own default. The repair of the stove did not carry any inherent risk of injury unless it were negligently done. There was no want of due care on the part of the landlord in selecting Mr Briggs to repair the stove. Apart from the landlord's duty to exercise reasonable care in the selection of a licensed electrician to repair the stove, no further duty in respect of the repair of the stove arose from the circumstances. I would therefore reject the submission that the landlord is liable in damages to Nicole by reason of the failure by Mr Briggs to ensure that the earth wire did not foul the active wire attached to the stove hotplate.

3. Letting the premises in an unsafe condition

If Mrs Harris had herself attempted to turn off the tap and had been electrocuted, her claim against the landlord would have been based on the contract between the landlord and the tenants. On the facts of the present case, it is clear that whoever failed to fix the major earth wire securely into the neutral link was negligent and that that person's negligence rendered the entire electrical system of the house unsafe. Irrespective of whose negligence it was, the landlord was in breach of the contractual duty which it owed to the tenants. Although a landlord might owe a contractual duty of care to tenants in respect of the condition of the premises at the time when the tenants are let into possession, the doctrine of privity of contract precludes any person who was not party to the contract from recovering damages against the landlord in reliance on that duty [F31] . Thus the unsuccessful plaintiff in Cavalier v. Pope [F32] , who was the wife of the tenant, failed in her action although her injuries were caused by the collapse of floor boards which the landlord had promised to repair. Lord Macnaghten said she could be in no better position to recover damages than a customer or guest [F33] .

In contemporary conditions, Lord Macnaghten's declaration of the landlord's partial immunity from liability to the wife of the tenant in respect of dangers in the premises as let is incongruous in comparison with the duty imposed on occupiers. A rigorous duty of care in tort is imposed on occupiers of dangerous premises who let other persons enter upon those premises for reward and it seems anomalous that a landlord who lets into possession a tenant and his family to inhabit the premises should owe a similar duty only to the tenant. True, a landlord who lets a tenant into possession may not have been in occupation of the premises but the landlord is in possession of the premises at the time of the tenant's entry and, immediately prior to that time, has both the power to effect repairs to the premises and power to put the tenant into possession. The concatenation of corresponding powers in an occupier is the foundation of the occupier's duty of care.

The traditional basis of an occupier's liability was stated by Dixon J in Lipman v. Clendinnen [F34] :

"[P]ossession of property is not in itself the source of any obligation with respect to its state or condition. Its use or enjoyment may be attended with as much, or as little, hazard as the occupier chooses, if he retains exclusive enjoyment of the perils as well as of the advantages of occupation. The circumstance which annexes to occupation the duty of care, when it exists, is the presence or proximity of others upon or to the premises occupied. It is because the safety of such persons may be endangered that the obligation of care arises. But as the purpose of the obligation is that those who come may go unharmed, the existence and the extent of the duty must depend upon their title to be there, upon the object with which they come, and upon the occupier's interest in their presence."

His Honour added [F35] that English law, followed in this country, "adopted a fixed classification of the capacities or characters in which persons enter upon premises occupied by others, and a special standard of duty [was] established in reference to each class". However, the special categories were not accepted by this Court in Australian Safeway Stores v. Zaluzna [F36] . In that case, the majority judgment dispensed with the categories, subsuming the various categories and their several duties of care in the general principles of the law of negligence. In Commissioner for Railways (NSW) v. Cardy [F37] Windeyer J had seen the various categories as examples of particular situations that attracted a duty of care in accordance with the principles stated by Lord Atkin in Donoghue v. Stevenson [F38] :

"The duty of the occupier is, however, rooted at bottom in his duty to his neighbour in Lord Atkin's sense. For, as Dixon J, as he then was, said in Lipman v. Clendinnen [F39] , 'The circumstance which annexes to occupation the duty of care, when it exists, is the presence or proximity of others upon or to the premises occupied. It is because the safety of such persons may be endangered that the obligation of care arises'. [F40] The formulary rules really do no more than state what the law has determined a reasonable man must do to discharge a duty of care arising in particular circumstances. And they are decisive only in cases where the plaintiff's case is founded upon the duty of the defendant as occupier for the safety of his premises. A plaintiff who can rely on a duty of care arising in particular circumstances is not to be defeated merely because the defendant is the occupier of the land on which he came to harm. His presence upon the land and the circumstances in which he came there may be merely elements in a total situation from which a duty of care arises, and not the foundation of the defendant's duty of care."

Once the duty of an occupier of premises is seen simply as an example of the general duty of care, it is difficult to maintain any difference in content between the duty of care owed by an occupier of premises to a person entering under contract or for reward and the duty of care owed by the landlord of premises in respect of the condition of the premises at the time he lets a tenant into possession [F41] . In the first place, occupation is not in itself the foundation of a duty of care owed to entrants upon the occupied premises. The true bases of the occupier's duty of care are the power of control which an occupier has to consent to another's entry and the power to safeguard the entrant against injury or loss from defects in the occupied premises [F42] . Yet a landlord has powers corresponding to those of an occupier to consent to entry into occupation of the premises by the tenant and those who, to the knowledge of the landlord, are intended to occupy the premises under and for the purposes of the tenancy and the power to safeguard those persons against injury or loss from defects that are in the premises at the time when the tenant is let into possession.

Secondly, although a contractual duty of care is owed by an occupier to a person who enters under contract, a corresponding duty of care is owed in tort to any who enter by consent and for reward [F43] . The contractual duty, in the absence of a special stipulation, was stated by McCardie J in Maclenan v. Segar [F44] :

"So too as to premises generally the rule, I think, is the same, and upon the decisions as they stand may be stated as follows, namely: Where the occupier of premises agrees for reward that a person shall have the right to enter and use them for a mutually contemplated purpose, the contract between the parties (unless it provides to the contrary) contains an implied warranty that the premises are as safe for that purpose as reasonable care and skill on the part of any one can make them. The rule is subject to the limitation that the defendant is not to be held responsible for defects which could not have been discovered by reasonable care or skill on the part of any person concerned with the construction, alteration, repair, or maintenance of the premises ... But subject to this limitation it matters not whether the lack of care or skill be that of the defendant or his servants, or that of an independent contractor or his servants, or whether the negligence takes place before or after the occupation by the defendant of the premises."

Citing this passage in Watson v. George [F45] , Fullagar J said:

"The above statement of the rule must, I think, be accepted as a correct statement: it can hardly be doubted that it represents the general current of authority. It is, however, from some points of view, a curious rule. The obligation is, in legal theory, contractual, but the liability depends on a breach by somebody at some stage of a common-law duty (which may, of course, have been also itself a contractual duty) to use reasonable care. It seems clear that the rule does not impose liability in the absence of negligence on the part of anybody. It is to be observed also that in some cases the whole question will resolve itself practically into a question whether the defendant or a servant of the defendant has been guilty of negligence in connection with the source of danger and damage."

In Watson v. George, carbon monoxide gas from a bathroom heater which had been unable to escape because of an accumulation of rust in a chimney caused the death of a lodger in a boarding house. Although the Court held that the occupier of the boarding house was under the duty of care stated by McCardie J in Maclenan v. Segar , it was found that the bathroom heater itself was safe and that there was no negligence in the occupier's failing to conduct periodical inspections of the chimney [F46] . On those findings, the plaintiff - the deceased's widow - failed. Had the bathroom heater been installed unsafely and improperly so as to present a danger to lodgers, the occupier would have been in breach of his duty of care owed to the lodger who died. What rational ground of distinction can be drawn between an occupier's duty to a lodger in respect of the premises to be used by the lodger for his habitation and a landlord's duty to a tenant in respect of the premises to be used by the tenant for habitation? So far as Cavalier v. Pope is based on a landlord's liberty to let a tumble-down house for human habitation, it is inconsistent with s 7(a) of the Residential Tenancies Act and, I should think, it is inconsistent with a condition, or at least a warranty, of fitness for human habitation that would be implied in any modern-day lease of premises for that purpose [F47] .

However, the content of the contractual duty does not necessarily translate into a duty of care in tort. Both Maclenan v. Segar and Watson v. George base the duty of care of which they speak firmly in contract. It was acknowledged by the majority judgment in Calin v. Greater Union Organisation Pty Ltd [F48] that the decision in Zaluzna had not dealt with the duty of care in tort owed by an occupier to a person who enters under contract. However, in Voli v. Inglewood Shire Council [F49] , Windeyer J held that an occupier owed a duty of care formulated in accordance with Maclenan v. Segar not only to the person who had contracted and paid for his own entry into the occupied premises but also to those whose entry had been paid for. The extension was not effected by relaxing the doctrine of privity of contract but by acknowledging the existence of a duty of care in tort. Windeyer J said [F50] , speaking of the passage above cited from Maclenan v. Segar :

"That passage, it will be noticed, places the source of the obligation in an implied term in a contractual right of entry upon the premises. And where the plaintiff who suffered an injury had himself paid to go in, the liability of the owner or occupier whom he paid can be rested on breach of contract. In the early decisions it was usually so put. But Martin B said in Francis v. Cockrell [F51] , 'if you choose to put it in another form, it is the duty of a person, who so holds out a building of this sort, to have it in a fit and proper state for the safe reception of persons who are admitted' [F52] . Looked at in that way the involvement of contractual elements in an action of negligence, the curiosity on which Fullagar J remarked in Watson v. George [F53] largely disappears. For, although in Francis v. Cockrell [F54] the plaintiff had himself paid to enter the grand-stand, would it have made any difference if a friend had bought his ticket for him? Should a person whose ticket was bought for him by a friend, as they went in together, be in a worse position, if they both be hurt by a collapse of the stand, than the friend who paid for them both? Surely not? Then suppose a person had taken all the places so that he might invite whom he liked, would his guests, injured when the stand collapsed, have had no right of action against those who erected it? The shadow that the requirement of privity of contract in the law of contract has cast upon the law of tort is now dispelled, or almost so. Liability in tort always depends upon proximity of relationship, not on privity of agreement."

The duty of care owed by the occupier of premises to persons to whose entry the occupier consents for reward arises by reason of the relationship between the occupier and the entrants. It arises in order "that those who come may go unharmed", as Dixon J said in Lipman v. Clendinnen [F55] . It is imposed on the occupier because the occupier not only has the power to safeguard the entrant against the risk of injury but because the occupier consents to the entry, the entrant is entitled to expect that the entry will not expose him to the risk of harm and the entrant necessarily relies on the occupier for protection from harm. In Calin [F56] , where the case was conducted solely on the basis of a duty of care imposed by the common law on a theatre proprietor, it was unnecessary to determine whether there was any difference between that duty and the contractual duty. But whatever considerations generally require the implication of a term as to the condition of the premises in a contract by which an occupier agrees to give entrance to the premises for reward must equally prescribe the duty of care to be imposed on such an occupier towards any person who enters with the occupier's consent and for the occupier's commercial benefit. I would hold that an occupier owes to such persons a duty of care and that that duty is to see that the premises are as safe for the contemplated purpose of the entry as reasonable care and skill on the part of anyone can make them [F57] .

However, the relationship between a landlord and those who, to the knowledge of the landlord, are to occupy the premises under and for the purposes of the tenancy has hitherto been treated differently from the relationship of the occupier with persons who enter with his consent and for his commercial benefit. An attempt to sheet home to the landlord responsibility for damage caused by defects in the premises for the repair of which the landlord was responsible was made in Payne v. Rogers [F58] . A third party entrant was held entitled to recover against the landlord in order to avoid circuity of action, as the tenant-occupier would have been entitled, if sued, to recover over against the landlord. But Payne v. Rogers was disapproved in Cavalier v. Pope [F59] , where it was held that the landlord did not have the control of the premises necessary to raise the duty of care to a third party. The necessary power of control, said Lord Atkinson [F60] , "implies something more than the right or liability to repair the premises. It implies the power and the right to admit people to the premises and to exclude people from them." That power does not belong to the landlord once he has parted with possession. But it is the power which the landlord has and exercises in respect of the premises at the time when the tenant and those who, to the knowledge of the landlord, are intended to occupy under and for the purposes of the tenancy are let into possession. Therefore it would be anomalous to hold that Cavalier v. Pope denies the existence of a landlord's duty of care to the tenant and those who, to the knowledge of the landlord, are intended to occupy under and for the purposes of the tenancy, the duty being measured by the standard of care expressed in Maclenan v. Segar . The anomaly was noted by Windeyer J in Voli [F61] :

"[I]n Donoghue v. Stevenson itself Lord Macmillan spoke of Cavalier v. Pope as being 'in a different chapter of the law'. The landlord's immunity thus continues unaffected by the results of the snail's emergence. ... Lord Denning has described Cavalier v. Pope as a 'relic of a worn out fallacy which must be kept in close confinement'."

In my opinion, the anomaly is logically indefensible and is to be accounted for by social conditions that have long since passed.

I would hold a landlord to be under a duty of care in respect of the demised premises requiring the same standard of care as is required of occupiers towards those who enter occupied premises by consent and for reward, the landlord's duty of care being -

(i)
limited to defects in the premises at the time when the tenant is let into possession; and
(ii)
owed to the tenant and to those who, to the knowledge of the landlord, are intended to occupy the premises under and for the purposes of the tenancy.

The standard required of the landlord is the standard stated by McCardie J in Maclenan v. Segar . The duty does not extend to defects in the premises that are discoverable only after the landlord parts with possession.

In accordance with this principle, I would hold the landlord in the present case to have owed a duty of care to the tenants and to their children to see that the premises at the time the tenants went into possession were as safe for their habitation as reasonable care and skill on the part of anyone could make them, excluding defects which could not have been discovered by reasonable care or skill on the part of any person concerned with the construction, alteration, repair or maintenance of the premises. The premises were unsafe by reason of a defect which would have been manifest on a simple inspection, namely, the lack of connection between the major earth wire and the neutral link. That defect was easily remediable. The landlord is thus liable for breach of its duty of care owed to Nicole.

I would dismiss the appeal.


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