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

(1997) 188 CLR 313

---

(Decision by: Gaudron J)

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

Court:

Judges: Brennan CJ
Dawson
Toohey

GaudronMcHugh
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:
Gaudron J

The facts are set out in other judgments. They are repeated to some extent to make it clear that the tragic accident with which this appeal is concerned was the result of the coincidence of two electrical defects in the rented house in which the respondent lived with her family. The first defect was in the neutral link in the switchbox. The second was associated with the electrical stove installed in the home.

The defective neutral link was the result of a disconnected earth wire. It became disconnected because it was in a nest of tangled wires, the weight of which resulted in it being pulled from or working loose in its socket. It is not known when or by whom the work resulting in the tangle of wires was carried out. However, the trial judge found that, had there been a visual inspection of the switchbox before the respondent and her family entered into occupation, it was probable that the tangle or the defect, if that is what it then was, would have been seen and corrected. That finding was treated in this Court as a finding, on the balance of probabilities, that it would, in fact, have been seen and corrected. The trial judge also found that, had that occurred, the accident would not have happened.

The circumstances relating to the condition of the stove are not in issue. It was repaired by Mr Briggs. In carrying out that repair, he failed to ensure that the stove's earth wire could not come into contact with the active wire. Had the neutral link been functioning properly, however, contact between the earth and the active wires would simply have resulted in a blown fuse at the switchbox. Instead and because of the defective neutral link, there was a failure of the earthing system with the result that the water-pipes became electrified. Thus it was that the respondent suffered severe injury when turning off the garden tap.

The respondent obtained a verdict against Mr Briggs for his negligence in repairing the stove. The only question in this appeal is whether, as found by the Court of Appeal of the Supreme Court of Queensland, she is also entitled to a verdict against the appellant company ("the landlord"), which owned and rented to the respondent's parents, the premises in which the accident occurred ^[F113] .

Four matters were advanced in this Court on behalf of the respondent. First, it was argued that she was entitled to a verdict against the landlord because of its breach of a common law duty of care to have the electrical system visually inspected prior to granting the lease ^[F114] . It was then argued that the landlord had breached a common law duty to ensure that Mr Briggs exercised care in repairing the stove. Additionally, it was put that there was a breach by the landlord of separate statutory duties arising, respectively, under the Property Law Act 1974 (Q) and the Residential Tenancies Act 1975 (Q) ^[F115] .

It is convenient at this stage to note the terms of the provisions which, it is said, imposed statutory duties on the landlord and conferred corresponding rights on the respondent. First, s 106(1) of the Property Law Act 1974 provides that:

"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".

A similar obligation was cast on a landlord by s 7 of the Residential Tenancies Act 1975. That section relevantly provided ^[F116] :

"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-

...

(ii)

to provide and, during the tenancy, maintain the dwelling-house ... in a condition fit for human habitation".

The statutory duties upon which the respondent relies can be traced to legislation enacted in the United Kingdom at or near the turn of the century ^[F117] . That legislation was designed to alleviate the consequences of judicial decisions to the effect that, save for contractual obligations ^[F118] , a landlord was not liable for injuries resulting from the dangerous state of leased premises ^[F119] . Moreover it was then settled law that, even if there was a contractual obligation, it could only operate to benefit the tenant, not members of the tenant's household who were not parties to the lease ^[F120] .

It was not argued that it is still the law that a landlord owes no duty of care with respect to leased premises. Rather, it was accepted that, so far as concerns residential premises, a landlord has a duty of care to members of a tenant's household as identified in Parker v. South Australian Housing Trust , namely, "to exercise care for their safety by means of reasonable measures to keep the premises in a safe state of repair" ^[F121] . However, it was argued that there was no breach of the duty in this case. In that regard, it was put in relation to the neutral link that the duty does not extend to defects the existence of which is not known to the landlord. And it was put in relation to known electrical defects, as in the case of the stove, that the duty is confined to obtaining the services of an apparently competent electrician.

So far as concerns the statutory provisions upon which the respondent relies, the primary argument advanced on behalf of the landlord was that they give rise to contractual obligations which operate to benefit the tenant only, not members of his or her household. It was also put that, so far as the issues in this case are concerned, the content of those obligations is no different from the content of the common law duty of care and, for the reasons put in relation to that duty, there was no breach of either obligation. Finally, it was put on behalf of the landlord, that the only obligation involved in this case is that imposed by s 7(a) of the Residential Tenancies Act 1975.

It cannot, in my view, be doubted that the law has now developed to the point that, so far as concerns premises leased for residential purposes, the relationship between a landlord and those who constitute a tenant's household is one that gives rise to a duty on the part of the landlord to take reasonable care for their safety by putting and keeping the premises in a safe state of repair. To hold otherwise would be inconsistent with the principles of negligence articulated in Donoghue v. Stevenson ^[F122] . And once it is accepted, as it has been, that a contractual relationship does not, of itself, exclude a common law duty of care ^[F123] , it follows that the same duty of care is owed to a tenant. It may be, however, that, in a given case, the lease limits or excludes recovery by the tenant for breach of that duty ^[F124] . At least that is so unless some statutory provision renders a stipulation of that kind void or of no effect.

Whether because of decisions which held that a landlord was not liable in negligence for unsafe premises or because of legislation imposing statutory duties of the kind on which the respondent relies in this case, there has been no systematic development of the law of negligence in its application to landlords. Thus, neither the content nor the precise nature of the duty owed by a landlord can be discovered from case law. It is, however, possible to say, a priori , that a landlord is obliged to warn a tenant and members of the tenant's household of concealed dangers of which he or she is aware. That aside, other aspects of the duty can properly be ascertained only by analysis of the relevant features of the relationship between landlord, on the one hand, and tenant and members of the tenant's household, on the other.

The relationship between landlord and members of a tenant's household, including the tenant, is unusual in that the features which bear on the question of liability for negligence are not constant throughout. If the position is considered at or immediately prior to the commencement of a lease, the relationship is not unlike that of occupier and invitee in that the state of the premises is known to, or can be ascertained by the landlord. Moreover and as in the case of an occupier ^[F125] , the landlord is in a position of control in relation to the premises. In particular, the landlord is in a position to control the state in which the premises are let. On the other hand, the members of the tenant's household have no such control. And, they can ascertain the state of the premises only if and to the extent that the landlord so permits.

If an opportunity is afforded to a tenant or to members of his or her household to inspect premises prior to lease, the relationship at that point is, in law, that of occupier and invitee. And, save to the extent that inspection reveals some danger associated with those premises, the features which mark that relationship continue at least until the tenancy commences. In particular, the landlord is, until then, in a position to ascertain and control the state of the premises; the tenant and members of his or her household have no such ability and are dependent upon the landlord for their safety, save to the extent that they become aware of existing dangers.

Once a tenancy commences, there is an important change in the features of the relationship which bear on the question of a landlord's liability in negligence. Generally speaking, it is the tenant who is then in a position to ascertain and control the state of the premises. And again generally speaking, if defects develop during the tenancy, the landlord will become aware of them only if informed of their existence by the tenant or by members of the tenant's household.

Given the features which attend the relationship between landlord and members of the tenant's household, including the tenant, once a lease has commenced, it seems to me that, in relation to defects which are not present at the commencement of a lease but develop during its term, a landlord's duty extends only to remedying those defects of which he or she is or ought to be aware. In practical terms, that may mean that the duty is confined to remedying those defects which are notified by the tenant or by members of his or her household. However, different considerations apply in the case of defects which are present at the beginning of a lease.

Having regard to the control which, at the beginning of a lease, a landlord exercises over the state of the premises and, also, the extent to which members of the household are then dependent upon the landlord for their safety, a landlord's duty at that point cannot, in my view, be limited to defects of which he or she is aware. Rather, and because of the vulnerability of the tenant and members of his or her household, the duty extends to defects discoverable on inspection. Moreover, that vulnerability and the landlord's commercial interest in the tenancy necessitate the conclusion that the duty extends to defects and potential defects which pose special dangers (for example, defects in electrical wiring or gas connections) and which, ordinarily, are discoverable on inspection only by persons exercising special skill or expertise.

To say that the duty of a landlord with respect to residential premises extends to those defects which exist at the commencement of the lease and which are discoverable on inspection is to identify a duty to inspect and, also, a duty to remedy those defects which give rise to a foreseeable risk of injury. And to the extent that there may be defects which pose a special danger and which are discoverable only by persons with special skill or knowledge, it is to identify a duty to have inspections carried out by suitably qualified persons. And if defects or potential defects which give rise to a foreseeable risk of injury are then discovered, the duty extends to their rectification.

It is clear from the factual findings of the trial judge that the switchbox was not inspected by a qualified electrician before the respondent and her family took up residence in their rented home. It follows that there was a breach of the duty of care owed by the landlord to the respondent. It is not in issue either that inspection would have resulted in the discovery and correction of the problem associated with the neutral link or that the defective neutral link was causative of the respondent's injuries. The respondent is, thus, entitled to a verdict against the landlord as held by the Court of Appeal, albeit on an entirely different basis. Accordingly, the appeal must be dismissed.

Although the appeal must be dismissed, it is convenient to say something of the other issues involved. In particular, it is desirable, in view of its importance in other judgments, that I express my view on the question whether the duty owed by a landlord with respect to dangerous electrical defects is discharged by engaging an apparently competent electrician or whether there is a special non- delegable duty to ensure that the electrician exercises reasonable care and skill in remedying those defects.

It is now recognised that relationships which give rise to a special non-delegable duty to ensure that care is taken are marked by the central features of control, on the one hand, and vulnerability, on the other ^[F126] . The relationship between a hospital and patient ^[F127] , between school authority and pupils ^[F128] , and employer and employee, in relation to the provision of a safe system of work ^[F129] , are examples. Control is also a central feature of the relationship that exists between occupier and invitee ^[F130] . And as already indicated, because a landlord is in a position to control the state in which premises are leased, he or she is, at the beginning of a lease, in a position analogous to that of an occupier.

Seemingly, it was because of its central feature of control that, in Kondis v. State Transport Authority ^[F131] , Mason J adverted to the possibility that the relationship of occupier and invitee gives rise to a special non-delegable duty of care "to see that reasonable care and skill is exercised in making ... premises safe." ^[F132] That possibility was again adverted to in Burnie Port Authority v. General Jones Pty Ltd , but not further pursued ^[F133] . In Kondis , however, Mason J queried the position of an occupier with respect to conditions arising from works carried out by persons with special skills or expertise, saying "[i]t is not immediately obvious that it is appropriate to impose liability ... 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." ^[F134]

There are two matters which tell against a non- delegable duty on the part either of an occupier or of a landlord with respect to electrical installations and the remedying of electrical defects. First, the law only imposes a duty to take steps which, in the circumstances, a reasonable person would take to prevent a foreseeable risk of injury ^[F135] . It seems to me impossible to say that a reasonable occupier or landlord would ordinarily do more than seek the services of an apparently competent electrician to carry out electrical work. In this regard, it is sufficient to observe that, short of engaging a second electrician to check on the first, it is not apparent that there is any other precaution that might profitably be taken to guard against risk of injury as a result of carelessness on the part of an electrician.

The second matter which tells against a duty to do more than engage an apparently competent electrician is that electrical work requires special skill and expertise. The very essence of work that requires skill and expertise is that the person engaged to carry out the work has control over that work, not the person on whose behalf it is carried out. In other relationships, notably those involving hospital and patient and employer and employee, the control involved is that exercised by one person in relation to the other and it is that control coupled with the special vulnerability of patients and employees that justifies the imposition of a non-delegable duty. And in the case of dangerous activities and substances, it is the occupier's control over the carrying out of those activities or the presence of those substances that justifies a special non-delegable duty of the kind identified in Burnie Port Authority ^[F136] . However, the control which is decisive in the case of occupier and invitee and also, in the case of landlord and members of a tenant's household, is control over premises. And as a general rule, there is no control where the safety of premises depends on work which must be entrusted to a person possessed of special skills or expertise.

Subject to a qualification to which reference will shortly be made, the matters to which I have referred compel the conclusion that the duty owed by occupiers and landlords with respect to electrical installations and electrical defects is a duty to engage a competent electrician and not a non-delegable duty to ensure that the electrician exercises care and skill. The qualification is that different considerations apply in a case in which an occupier or landlord engages an electrician to carry out work on premises on which there are dangerous or potentially dangerous activities or substances. Depending on the nature of those activities or substances, the carrying out of electrical work may, in the circumstances, constitute a special danger such that there is a special relationship of proximity, characterised by a central element of control, on the one hand, and special dependence or vulnerability on the other, giving rise to a non-delegable duty of the kind recognised in Burnie Port Authority ^[F137] .

The statutory provisions to which reference has already been made can be dealt with shortly. I agree with Gummow and Kirby JJ that neither provision can be construed as imposing absolute liability. It would be necessary for there to be a clear intention to that effect before either provision could be construed in that way. Neither their terms nor their context disclose any such intention. Rather the expression "reasonably fit for human habitation" in s 106(1)(a) of the Property Law Act 1974 indicates a duty to exercise reasonable care and skill in providing and maintaining premises in a safe state. And in the absence of a clear intention to the contrary, nothing more is indicated by the expression "fit for human habitation" in s 7 of the Residential Tenancies Act 1975. Thus, when properly construed, neither provision gives rise to an obligation which, for present purposes, is different from a landlord's common law duty of care.

I also agree with Gummow and Kirby JJ, that given their language and context, s 106(1)(a) of the Property Law Act 1974 and s 7 of the Residential Tenancies Act 1975 create contractual duties. However, I agree with Kirby J, for the reasons that his Honour gives, that, by s 55 of the Property Law Act 1974, a member of a tenant's household is entitled to the benefit of those provisions.

One other matter may conveniently be noted. Given that the obligations imposed, respectively, by s 106(1)(a) of the Property Law Act 1974 and by s 7 of the Residential Tenancies Act 1975 are, for practical purposes, identical, neither is inconsistent with or repugnant to the other. Thus, in my view, there is no need to treat one as applying to the exclusion of the other.

The appeal should be dismissed with costs.