Northern Sandblasting Pty Ltd v Harris (by her next friend Harris)
(1997) 188 CLR 313(Judgment by: Dawson J)
NORTHERN SANDBLASTING PTY LTD v NICOLE ANNE HARRIS (an infant by her next friend PAMELA HARRIS)
Court:
Judges:
Brennan CJ
DawsonToohey
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
Judgment by:
Dawson J
On 4 June 1987 the respondent, who was then nine years of age, suffered an electric shock when she grasped a tap to turn it off at her mother's request. The tap was in the garden of house premises rented by the respondent's father and mother and occupied as the family home. The shock caused severe brain damage to the respondent who is now in a vegetative state, capable only of coarse responses to stimuli and without understanding or awareness of her condition.
The respondent's parents rented the premises in question from the appellant under an oral tenancy agreement at a rental of $100 per week. The family commenced to occupy the premises on about 12 December 1986. The appellant company was owned and controlled by the respondent's aunt and her husband.
Two days before the accident, the respondent's mother told the appellant that an element in the stove did not work. The appellant engaged the electrical contractor which it ordinarily used to repair the defect. The electrical contractor carried out the repairs, but he did so negligently in such a way that it was possible that the earth wire could make contact with the active wire in the element and so cause the whole earthing system to become and remain alive. That was what happened. When the respondent was injured, a short circuit had occurred in the stove. Had the earthing system in the premises been working properly, all that would have happened would have been that the fuse for the stove in the domestic switch-box would have blown, cutting off electrical current to the stove and putting an end to the short circuit.
However, the effective operation of the general earthing safety system depended upon a link in the domestic switch-box between the major earthing wire and a neutral wire. The major earthing wire was not properly connected with the consequence that the link was absent and the general earthing safety system was inoperative. There was an alternative safety mechanism which would also have caused the stove fuse to blow if the system had been working effectively. The major earthing wire was connected to the water pipe system in the ground and a neutral wire on a nearby power pole was connected to a metal peg in the ground near the power pole. Provided the soil between that point and the water pipes in the ground had acted as a suitable conductor, the current would have passed to the neutral wire, causing the fuse to blow.
Unfortunately, as is sometimes the case, the soil in which the water pipes were buried was a poor conductor of electricity. As a consequence, the entire water pipe system, including the garden tap, became charged with electricity because of the short circuit in the stove. When she touched the tap, the respondent was standing on wet grass with bare feet and the electrical current passed through her body to the ground.
The premises occupied by the respondent and her family were purchased by the appellant in July 1984. At that time the electrical system was inspected by the supplier, the North Queensland Electricity Board ("the Board"), and passed by it. The premises had been unoccupied for a short time before the respondent's family went into occupation and when they did the power was merely turned on without any further inspection.
The respondent, by her mother as next friend, sued the electrical contractor, the Board and the appellant for damages in the Supreme Court of Queensland. Derrington J, who tried the action, found against the respondent in her claims against the Board and the appellant but entered judgment against the electrical contractor in the sum of $1,204,429.82. The respondent appealed to the Court of Appeal against the dismissal of her claim against the appellant. By a majority (Fitzgerald P and McPherson JA; Pincus JA dissenting) the Court of Appeal upheld the respondent's appeal and ordered that there be judgment against the appellant as well as the electrical contractor. The appellant now appeals to this Court against that order.
The respondent's claim against the appellant as contested in the Court of Appeal was based, first, upon the alleged negligence of the appellant and, secondly, upon alleged breaches of statutory obligations owed by the appellant to the respondent. The statutes which were said to impose those obligations were the Property Law Act 1974 (Q) and the Residential Tenancies Act 1975 (Q). In the Court of Appeal, Fitzgerald P found in favour of the respondent on the question of negligence. McPherson JA found in favour of the appellant upon the basis of statutory duties imposed by the legislation in question, but found against the respondent on the question of negligence. Pincus JA found against the respondent upon both issues.
I agree with Gummow J, for the reasons which he gives, that neither of the Queensland Acts upon which the respondent relies affords her a cause of action against the appellant. Nevertheless, it will be necessary to refer to certain provisions of those Acts in relation to the respondent's claim in negligence. I now turn to that claim.
The respondent put her claim in negligence upon two bases. First, she said that there was a duty of care cast upon the appellant as landlord to inspect the premises before they were occupied by the respondent's family. Such an inspection, it was said, would have revealed the neutral link problem in the domestic switch-box which, upon being repaired, would have averted the accident which subsequently occurred. Secondly, she contended that the duty to take care in the repair of the stove was a non-delegable or personal duty which could not be delegated to the electrical contractor. In other words, she contended that the duty was not simply a duty to take reasonable care but a duty to see that reasonable care was taken.
The appellant, in denying negligence, did not attempt to rely upon those cases, culminating in the decision of the House of Lords in Cavalier v. Pope [F62] , which held that a landlord of premises is under no duty of care to persons who may suffer injury on the premises by reason of the landlord's failure to comply with an obligation to keep the premises in repair. Rather, the appellant rightly conceded that the situation was as described by King CJ in Parker v. Housing Trust [F63] . There his Honour said:
"I am satisfied that the supposed rule, for which Cavalier v. Pope [F64] is regarded as authority, that a lessor is not under a duty of care to persons who may suffer injury on the demised premises by reason of the lessor's failure to comply with a covenant with the lessee to effect repairs or to keep the premises in repair, is inconsistent in principle with the modern doctrine of liability for negligence as it has developed since Donoghue v. Stevenson [F65] . That being so, I do not think that this Court would be justified in following the decision of the House of Lords, thereby imposing on the parties a result which the Court would consider to be incorrect. I would therefore hold that there is no rule of law precluding the existence of a duty of care in the lessor if on the ordinary principles of the law of negligence the facts are such as to give rise to such a duty."
The appellant conceded the existence of a duty of care on its part to the respondent. No doubt that concession was properly made having regard to the relationship between the appellant and the respondent. In that regard, it is relevant to observe that pursuant to s 7(a)(ii) of the Residential Tenancies Act 1975 (Q) there was implied in the tenancy agreement between the appellant and the respondent's parents an obligation on the part of the appellant to provide and, during the tenancy, maintain the premises in good tenantable repair and in a condition fit for human habitation. The better view, as Gummow J explains in his judgment, is that that obligation was imposed to the exclusion of any similar obligation under s 106 of the Property Law Act 1974 (Q). No doubt that obligation was sufficient to justify the relationship between the respondent, as a member of her parents' household, and the appellant being regarded as sufficiently proximate to give rise to a duty of care. However, that duty of care was that which arises under the ordinary principles of the law of negligence, namely, a duty to take reasonable care to avoid foreseeable risk of injury to the respondent. The nature and extent of the duty in the particular instance depends upon the circumstances of the case.
The respondent's first contention was that the appellant was under a duty to inspect the switch-box, or have it inspected by a qualified electrician, before the respondent's family went into possession of the premises. However, the evidence affords no foundation for the proposition that the exercise of reasonable care required the appellant to undertake personally, or to have undertaken by a qualified electrician, such an inspection. The major earth wire had become disconnected because of the weight of a tangled nest of wires upon it. There was no evidence of how or when the nest of wires came into existence or when the disconnection occurred. There was no indication of the absence of the neutral link before the accident. It only gave rise to a problem as a result of the negligence of the electrical contractor. The findings of fact of the trial judge were against the respondent on this point. Speaking of the absence of the neutral link, he said:
"The break was caused by a combination of factors, including the untidy work of the tradesman who had left the tangle of wires that probably withdrew the earth-wire from its socket, and the landlord was not obliged to foresee these. It was foreseeable however to a person in the position of the landlord that a fault might somehow develop in the system despite the engagement of qualified tradesmen in the work. However, there was no hint of any such fault 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."
In these circumstances, it could not be concluded, in my view, that reasonable care on the part of the appellant required it to make an inspection of the switch-box, or to have a qualified electrician undertake such an inspection, before the respondent and her family went into occupation of the premises in question. Certainly no such duty could be erected as a general obligation imposed on landlords by reason of an analogy between a landlord's relationship with a prospective tenant and that of an occupier to an invitee. The duty of an occupier to an invitee, which I shall return to a little later, is determined according to ordinary principles of negligence [F66] , and according to those principles "[w]hat is reasonable, of course, will vary with the circumstances of the plaintiff's entry upon the premises." [F67] Those principles would not justify the imposition of the suggested duty generally and for the reasons I have given there is no evidence to support the finding of such a duty in this case.
However, the second aspect of the respondent's case in negligence against the appellant was that the appellant's duty to take reasonable care in the repair of the stove was not one that could be discharged by engaging a qualified contractor to perform the task. It was, the respondent argued, a personal or non-delegable duty so that it became in effect a duty to ensure that reasonable care was taken. The result was, the respondent contended, that the appellant was liable for the electrical contractor's negligence.
The various categories of case in which it has been held that there was a non-delegable duty of care were analysed by Mason J in Kondis v. State Transport Authority [F68] in a judgment with which Deane J and I agreed. The categories identified were those of adjoining owners of land in relation to work threatening support or common walls; hospital and patient; school authority and pupil; and employer and employee in relation to a safe system of work. Mason J concluded that the more stringent duty does not arise unless a special relationship exists between the parties such that 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 [F69] . In Burnie Port Authority v. General Jones Pty Ltd [F70] it was pointed out that to identify the common element in the cases as the undertaking of care, supervision or control or the assumption of particular responsibility is to view the relationship from the perspective of the person upon whom the duty is cast. Viewed from the perspective of the person to whom the duty is owed, the relationship is marked by special dependence or vulnerability on the part of that person.
That is consistent with the observation of Mason J in Kondis [F71] that in the case of the relationship of employer and employee, where the duty of the employer to provide a safe system of work is non-delegable, the employer has the sole control over the system to which he subjects the employee and the employee must put up with it. In those circumstances, Mason J observed, it is reasonable that the employer should bear the consequences if he requires the employee to work according to an unsafe system. However, Mason J was unable to see as strong reasons for reaching a similar conclusion in the case of an occupier of premises and an invitee upon those premises. He commented [F72] :
"It is not immediately obvious that it is appropriate to impose liability on the occupier of a house for injury caused to an invitee by the negligence of an independent contractor, eg, in making or repairing an electrical installation carelessly, when it is reasonable for the occupier to rely on the reputed competence of the contractor in a field in which the occupier has no expert knowledge."
The doubt which Mason J expressed that the relationship of occupier and invitee imposes on the occupier a non- delegable duty to take care must be the more when reference is had to Pickard v. Smith [F73] , the case which is said to be the origin of the concept of a non-delegable duty of care. In that case, the decision was based primarily upon the proposition that the employment of a competent contractor does not discharge a duty to take care where the act which occasions the injury is the one which the contractor was employed to do [F74] . It is upon that basis that a number of authorities upon the non-delegability of a duty of care were decided - particularly the building cases involving the removal of support such as Bower v. Peate [F75] and Dalton v. Angus [F76] . But the rule does not suggest any good reason why the more stringent duty of care should be cast upon an occupier generally, particularly when in this country the duty of an occupier of premises to take care is now expressed in terms of the ordinary law of negligence. It is a duty on his or her part to take reasonable care to avoid foreseeable risk of injury to a lawful entrant upon the premises [F77] . It is difficult to see why the duty expressed in that way should be non-delegable except in special circumstances such as were identified in Burnie Port Authority v. General Jones Pty Ltd [F78] .
Of course, the rule laid down in Pickard v. Smith (that a duty to take care is personal or non- delegable where the act which occasions the injury is the very one which the contractor was employed to do) was expanded in that case "by a parity of reasoning, to cases in which the contractor is intrusted with the performance of a duty incumbent upon his employer, and neglects its fulfilment, whereby an injury is occasioned" [F79] . It is this aspect of the rule laid down in Pickard v. Smith which has led to the imposition of the further requirement of control or assumption of responsibility on the one hand and vulnerability on the other, in order to contain the concept of the non-delegable duty of care within appropriate limits.
The duty of a landlord to exercise due care in maintaining premises in a state of repair is not of a kind which suggests that the duty is non-delegable. If control is the touchstone, then it may be observed that it must mean control of the premises rather than control over the person as in the case of an employer's relationship with his employee. The control of a landlord over the premises is limited in two respects. First, save to the extent that he exercises his right to enter and inspect [F80] , he is dependent upon the tenant to draw defects to his attention. Secondly, where the safety of the premises depends upon work which must be entrusted to persons possessing special skills, as in the present case, there is no real element of control on the part of the landlord over the manner in which the work is to be done. Both the landlord and those occupying the premises are equally dependent upon the contractor for the exercise of due skill and care and, provided that a qualified contractor whose competency the landlord has no reason to doubt is engaged, it is not apparent that the landlord should bear personal responsibility for the contractor's negligence.
Moreover, where an occupier, who exercises a greater degree of control over the premises than does a landlord, has no more than a duty to take reasonable care to avoid risk of injury to persons lawfully on the premises, it would be anomalous, to say the least, to impose a more stringent duty upon the landlord.
If hazardous activities were carried out upon the premises, the situation would be different. If the hazardous activities were introduced on to the premises by the landlord, he would, in introducing them, have control, and upon the ordinary principles of the law of negligence a non-delegable duty of care in relation to those activities would be imposed upon him [F81] . The duty would not arise out of the relationship of landlord and occupier, but out of the nature of the activities. It is not suggested that the supply of electricity to domestic premises constitutes a hazardous activity.
For these reasons I am unable to conclude that the appellant owed to the respondent a personal or non-delegable duty to take care. The appellant's duty to take care in relation to the repair of the stove was discharged by the engagement of a qualified electrical contractor.
It follows that the appeal must succeed. I agree with the orders proposed by Kirby J.