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

(1997) 188 CLR 313

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(Judgment by: Gummow J)

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

Court:

Judges: Brennan CJ
Dawson
Toohey
Gaudron
McHugh

GummowKirby 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

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Judgment by:
Gummow J

The facts are set out in the judgment of Kirby J. I agree, for the reasons given by Dawson J and Kirby J, that the primary judge and the majority of the Court of Appeal correctly decided the respondent's case in so far as it was founded on the tort of negligence.

The respondent also relies upon what she submits were actionable breaches of obligations owed to her by the appellant and imposed upon the appellant by statute. She bases this part of her case upon the distinct operation of two statutes, both of which came into operation on 1 December 1975. They are the Property Law Act 1974 (Q) ("the Property Law Act") and the Residential Tenancies Act 1975 (Q) ("the Residential Tenancies Act") ^[F172] .

The common law of landlord and tenant

Statutory requirements as to the fitness of leased premises for human habitation were enacted against the background of the limited provision made by the common law in such matters.

In general, there is no breach of an express covenant by a landlord to keep the demised premises in repair unless two criteria have been met. First, the landlord must have information as to the existence of the defect such as would put a reasonable landlord on inquiry as to whether works of repair are needed and, secondly, thereafter the landlord must have failed to carry out the necessary works with reasonable expedition ^[F173] . But, as Cussen J pointed out ^[F174] , this is a rule of construction to be considered with the text of the particular lease, not a rule of law.

In England, at common law, on the letting of a furnished house, there is an implied condition that it is in a fit state for habitation at the commencement of the tenancy ^[F175] . The implied condition appears to arise from the intention of the parties inferred from the circumstances of the letting ^[F176] . However, on the letting of furnished premises, there is no implied condition that the premises continue fit for habitation during the term ^[F177] . Moreover, in 1896 in Lane v. Cox ^[F178] , the English Court of Appeal confirmed that at common law, in respect of a letting of unfurnished premises, there is no obligation implied in contract requiring the landlord to put or to keep the demised premises in repair. The English decisions were followed by the New South Wales Court of Appeal in Pampris v. Thanos ^[F179] .

The Property Law Act

I turn first to consider s 106 of the Property Law Act. This states ^[F180] :

"(1) In a lease of premises for a term of three 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; and

(b)

on the part of the lessee -

(i)

to care for the premises in the manner of a reasonable tenant; and

(ii)

to repair damage caused by him or by persons coming on the premises with his permission.

(2) This section applies -

(a)

to leases made after the commencement of this Act;

(b)

notwithstanding any other provision of this Act or any agreement to the contrary."

In s 4(1), the term "lease" is defined as including a "demise and tenancy, whether for a term, for a period, or at will". It will be noted that the "obligation" imposed on the landlord is to provide and maintain the premises in a certain state.

Rather than use the terms "warranty" in respect of the present condition of the premises at the commencement of the lease, and "covenant" in respect of the requirement thereafter to keep the premises in the specified state ^[F181] , in s 106 the legislature uses "obligation" to cover both. The above definition of "lease" has the consequence that s 106(1) includes a tenancy at will, making the term "covenant" inapt for use in that section. The Property Law Act uses the term "covenant" in its strict sense of a promise or stipulation under seal. This is shown by s 105. This section implies in every lease of land an obligation by the lessee to pay rent and, in the case of leases to which s 106(1)(a) does not apply, an obligation on the lessee to keep the premises in good repair. The effect of s 105(2) is that, in the case of those leases to which the section extends and which are leases by deed, "any obligation implied by this section shall take effect as a covenant".

The interrelation between ss 105 and 106 with respect to the condition of the premises should be noted. Section 105 applies "unless otherwise agreed", whereas where s 106 applies it does so notwithstanding any agreement to the contrary (s 106(2)). Further, in the case of a lease of premises for a term of three years or for any less period for the purpose of human habitation, the lessor is required by s 106(1)(a) to provide and maintain the premises in a condition reasonably fit for human habitation ^[F182] . However, with respect to other leases, s 105(1)(b) implies, unless otherwise agreed, an obligation by the lessee to keep the demised premises in good and tenantable repair, having regard to various matters including their condition at the commencement of the lease and reasonable wear and tear.

In the present case, the parents of the respondent occupied the premises under an oral tenancy agreement. This provided for a rental of $100 per week but the evidence did not disclose how often the rental was to be paid or whether there was any agreement as to how long the tenancy was to continue. The better view appears to be that the tenancy was a periodic tenancy, being a lease from week to week ^[F183] . It follows that the parents of the respondent occupied the premises under a lease, within the meaning of the definition in s 4(1), which was for a term of three years or for a lesser period so as to attract s 106(1).

The respondent submits that there was a failure by the appellant to discharge the obligation imposed by par (a) of s 106(1) "to provide and maintain the premises ... in a condition reasonably fit for human habitation". In the circumstances explained by Kirby J in his reasons, a water tap in the yard of the premises had become charged with electricity so that when the respondent touched it the current passed through her and she was seriously injured.

At this stage, I put to one side the question whether in the present case the Residential Tenancies Act operated to displace what would otherwise be the operation of s 106 of the Property Law Act.

Authoritative guidance, which in my view should be accepted, as to the meaning of "in a condition reasonably fit for human habitation" as that phrase appears in s 106(1)(a), is provided by the decision of the House of Lords in Summers v. Salford Corporation ^[F184] . Section 2 of the Housing Act 1936 (UK) ("the 1936 Act") implied in certain contracts for the letting of houses a condition that at the commencement of the tenancy the house be, and an undertaking that during the tenancy the house be kept by the landlord, "in all respects reasonably fit for human habitation". The House of Lords adopted ^[F185] the statement by Atkin LJ in Morgan v. Liverpool Corporation ^[F186] :

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

In the present case, the state of repair of the premises was such that, by ordinary use of the water tap, personal injury would be caused to the occupier. It follows that the premises were not in a condition reasonably fit for human habitation within the meaning of s 106(1)(a) of the Property Law Act.

However, it does not necessarily follow from this that the respondent succeeds in an action to recover damages. Two further questions arise. The first concerns the nature of the obligation imposed upon the appellant. The issue then is whether the defective condition of the premises involved a breach by the appellant of that obligation. The second question is whether, if that be so, the respondent, an occupant but not the lessee of the premises, might bring an action to recover loss occasioned by that breach of obligation. The respondent submits that the appellant bore what amounted to an absolute liability, or at least a non-delegable duty to discover latent defects, and that she may sue for breach thereof although not a tenant.

In resolving these issues assistance is provided by decisions in England and Canada which construe comparable legislation. The sidenote to s 106 of the Property Law Act refers to United Kingdom legislation, s 6 of the Housing Act 1957 (UK) ("the Housing Act") and to s 96 of the Landlord and Tenant Act 1970 (Ont) ^[F187] . Thus, this is not a case where legislation from elsewhere may have existed but was not in the contemplation of the legislature. Further, the Queensland legislation followed upon the Report of the Law Reform Commission on Property Law Reform ^[F188] . To the Report, a draft Bill had been attached. Upon cl 106 of that draft Bill, the Commission commented:

"In England by statute (Housing Act, 1957, s 6) a condition of fitness for human habitation is now implied in a lease of a house at a low rent, and s 32 of the Housing Act 1961 implies a covenant by the landlord to repair the structure and exterior of a dwelling house let for less than seven years. More recently in Ontario s 96 of the Landlord and Tenant Act (c 236 of 1970) has imposed on the landlord, in the case of a residential tenancy, the responsibility of providing and maintaining the rented premises in a good state of repair and fit for habitation during the tenancy.

In Queensland the only comparable provision was that contained in s 35 of The Landlord and Tenant Acts, 1948 to 1961, which prohibited the letting of a dwelling house known not to be in a fair and tenantable state of repair, but this statute was repealed in 1970, and the common law rule now prevails in this State. The rule was one which became established in England at a time when long leases of residential houses were common, as they still are now; but this has never been the case in Queensland, where residential leases are almost invariably periodic tenancies of the weekly or monthly variety. The common law rule is therefore unsuited to Queensland conditions, and we propose the adoption of the principles of the Ontario and English legislation, confining, however, the obligation so imposed to tenancies for periods of three years or less. This is all the more necessary because the preceding clause would otherwise now ordinarily impose on the tenant an implied obligation to repair."

The last sentence refers to what became the tenant's obligation under s 105(1)(b), a matter to which I have referred earlier in these reasons.

I turn to the United Kingdom legislation. So far as is presently relevant, s 6(2) of the Housing Act provided:

"Subject to the provisions of this Act, in any contract to which this section applies there shall, notwithstanding any stipulation of the contrary, be implied a condition that the house is at the commencement of the tenancy, and an undertaking that the house will be kept by the landlord during the tenancy, fit for human habitation".

Section 96(1) of the Ontario statute stated:

"A landlord is responsible for providing and maintaining the rented premises in a good state of repair and fit for habitation during the tenancy and for complying with health and safety standards, including any housing standards required by law, and notwithstanding that any state of non-repair existed to the knowledge of the tenant before the tenancy agreement was entered into."

The United Kingdom legislation

Section 6 of the Housing Act had a lengthy line of descent in the United Kingdom, beginning with nineteenth century legislation designed to alleviate the living conditions of the urban poor ^[F189] . In O'Brien v. Robinson ^[F190] , the House of Lords held that an obligation imposed upon a landlord by s 32 of the Housing Act 1961 (UK) to keep in repair the structure and exterior of a leased dwelling house arose only when defects, previously latent and invisible, became patent and were made known to the landlord. Lord Morris of Borth-y-Gest said ^[F191] :

"The obligation on a lessor under section 32 of the Act of 1961 'to keep in repair' may be compared with the obligations on a lessor under earlier Acts. Thus, under the Act of 1957 (see section 6) the implications include a condition that the house is, at the commencement of the tenancy, and an undertaking that the house will be kept by the landlord during the tenancy, fit for human habitation. Under the Act of 1936 ^[F192] there was a comparable provision (see section 2) as there was in the Housing Act 1925 (see section 1). See also [sections 14 and] 15 of the Housing, Town Planning, etc Act 1909 ^[F193] . In the Act of 1936 the implied condition was that at the commencement of the tenancy the house was, and the implied undertaking that during the tenancy it would be kept, in all respects reasonably fit for human habitation.

So under all these Acts since 1909 the obligation of a lessor, where it has by statute been implied, has been to keep the premises in a certain condition, and for the purpose of considering the issue now arising it is immaterial whether the obligation imposed is to keep in repair or to keep premises in all respects reasonably fit for human habitation." ^[F194]

As indicated earlier in these reasons, in Summers v. Salford Corporation the House of Lords was construing the covenant implied by s 2 of the 1936 Act. This and other cases, including the earlier decision of the House in McCarrick v. Liverpool Corporation ^[F195] , were considered in O'Brien v. Robinson . Lord Morris of Borth-y- Gest said ^[F196] that the authorities showed that "every point of view has been explored". His Lordship added ^[F197] :

"On the one hand, it has been said that it would be wholly unreasonable to make a lessor liable for failing to remedy a defect of which he was unaware. So the liability to repair is one that arises only upon notice that there is a need to repair. ... On the other hand, it has been said that if a lessor chooses or is required to covenant to keep premises in repair then there is an absolute obligation upon him. Alternatively, even if ordinarily there is no obligation on the part of a lessor until he is told by his lessee of a need for repair, a lessee can only give notice of any condition of which he is aware and accordingly cannot give notice of some unknown or unseen condition or latent defect: if, in these circumstances, the lessee suffers injury by reason of the premises not being in repair liability should rest upon the lessor."

Lord Diplock referred to the covenant implied by the 1909 Act that the leased premises be kept by the landlord "in all respects fit for human habitation" ^[F198] , saying that provisions in substantially the same form had been re-enacted in the Housing Acts of 1925 and 1936. His Lordship said ^[F199] :

"This implied term did impose upon the landlord an obligation owed to the tenant to carry out such work upon the premises during the continuance of the tenancy as might from time to time be needed to keep them reasonably fit for human habitation. But although 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."

It should be noted that the terms of s 15(1) of the 1909 Act, which were construed by Lord Diplock (with whom Lord Reid, Lord Simon of Glaisdale and Lord Cross of Chelsea agreed) as imposing a contractual obligation with respect to the condition of the premises during the holding and owed by the landlord to the tenant, spoke of "an undertaking". As indicated earlier in these reasons, s 106 of the Property Law Act uses the phrase "there is an obligation" in respect of the condition of the premises both at the commencement and during the currency of the lease. Unless there be, as does not readily appear to be the case, a relevant distinction between the use of the terms "undertaking" and "obligation", the reasoning of Lord Diplock is applicable to the Queensland statute.

It may also be noted that in McCarrick v. Liverpool Corporation ^[F200] , the appellant had unsuccessfully submitted to the House of Lords that s 2 of the 1936 Act imposed upon the landlord a duty which was analogous to that imposed on a factory occupier by the Factory Acts and was absolute. A submission to like effect, with respect to the 1909 Act, had been rejected by the Court of Appeal in Ryall v. Kidwell & Son ^[F201] . In effect, such a submission is made by the respondent in the present case.

Ryall also decided (again contrary to the respondent's submission to this Court) that the covenant implied by the 1909 Act to keep the premises in a state reasonably fit for human habitation enured only for the benefit of a tenant; accordingly, an action by the infant daughter of the tenant to recover damages for personal injuries failed. In the United Kingdom, this state of affairs appears to have been remedied by the Occupiers' Liability Act 1957 (UK) ("the Occupiers' Liability Act"). Section 4, so far as relevant, provided:

"(1) Where premises are occupied by any person under a tenancy which puts on the landlord an obligation to that person for the maintenance or repair of the premises, the landlord shall owe to all persons who or whose goods may from time to time be lawfully on the premises the same duty , in respect of dangers arising from any default by him in carrying out that obligation, as if he were an occupier of the premises and those persons or their goods were there by his invitation or permission (but without any contract).

...

(6) Nothing in this section shall relieve a landlord of any duty which he is under apart from this section.

(7) For the purposes of this section, obligations imposed by any enactment in virtue of a tenancy shall be treated as imposed by the tenancy , and 'tenancy' includes a statutory tenancy which does not in law amount to a tenancy, and includes also any contract conferring a right of occupation, and 'landlord' shall be construed accordingly.

..." (emphasis added)

The objective of this provision was to give to any person lawfully upon the premises the same right of action against the landlord, in respect of an injury as that person would have had as a tenant if the landlord were bound by contract with the tenant or by statute to keep the premises in repair ^[F202] . We were referred to no comparable Queensland provision ^[F203] .

The Canadian legislation

The decision of the House of Lords in O'Brien v. Robinson was given before the enactment of the Queensland legislation. It proved influential in the interpretation of the Canadian legislation. O'Brien v. Robinson was cited to the Ontario Court of Appeal in McQuestion v. Schneider ^[F204] . The plaintiffs in that case had formerly owned the subject premises. They had sold the premises to the defendants and remained on as monthly tenants of the defendants. One of the plaintiffs was injured by a fall through steps which were in a bad state of repair by reason of dry rot. The presence of the dry rot could not have been ascertained by any reasonable inspection. The action was dismissed and an appeal dismissed. MacKinnon JA said ^[F205] :

"In my view, s 96(1) does not impose an absolute liability upon a landlord for any injuries or damages that may be caused by a latent defect, of which the landlord has no knowledge, nor could reasonably be expected to have had such knowledge. To alter the law so drastically as to impose strict liability on a landlord, regardless of his knowledge or constructive knowledge, would require much more precise language."

His Lordship added ^[F206] :

"Putting the plaintiffs' case at its highest, namely, that there is now a statutory duty of care imposed upon a landlord, the landlords here did not know of the latent defect nor, under the circumstances, could they reasonably be expected to have had knowledge of it. It is also common ground that no notice of the defect was given to the landlord if that were required.

In the circumstances we can find no failure on the part of the landlords to exercise reasonable care in providing and maintaining the rented premises in a good state of repair and fit for habitation."

This construction of s 96(1) was followed by the Ontario Court of Appeal in Fleischmann v. Grossman Holdings Ltd ^[F207] and Dye v. McGregor ^[F208] . In all of these cases decided under the Ontario legislation, the plaintiffs who sought or recovered damages were tenants. Fleischmann was followed by the New Brunswick Court of Queen's Bench in Turnbull v. Hsieh ^[F209] . The Court there was construing s 3 of the Residential Tenancies Act 1975 (NB) ^[F210] . This stated:

"(1) A Landlord

(a)

shall deliver the premises to the tenant in a good state of repair and fit for habitation;

(b)

shall maintain the premises in a good state of repair and fit for habitation;

(b.1)

shall deliver to the tenant and maintain in a good state of repair any chattels provided therein by the landlord;

(c)

shall comply with all health, safety, housing and building standards and any other legal requirement respecting the premises; and

(d)

shall keep all common areas in a clean and safe condition.

(2) Subsection (1) applies whether any state of non- repair or unfitness for habitation existed to the knowledge of the tenant before the tenancy agreement was entered into or arose thereafter."

The plaintiff was the infant daughter of one of the tenants, her mother. The plaintiff was scalded as a result of the dislodgement of a hot water tap from the bathroom wall. The landlord previously had been informed that the tap was leaking and loose. No point was taken, either at first instance or on appeal, as to whether the obligation under the legislation was owed by the landlord not only to the tenants but also to other occupiers as well.

A specific provision which, had it been included in s 106 of the Property Law Act, would have availed the present respondent was made in British Columbia. Section 30 of the Landlord and Tenant Act 1974 (BC) ^[F211] obliged a landlord to provide and maintain residential premises and residential buildings in such a state of repair as to comply with health and safety standards and, having regard to the age, character and locality of the residential building as would make it reasonably suitable for occupation by a reasonable tenant who would be willing to rent it. By force of s 6(3)(c) of the Occupiers' Liability Act 1974 (BC) ^[F212] , obligations imposed by s 30 were deemed to be imposed by a tenancy, for the purposes of s 6(1) ^[F213] . That provided:

"Where premises are occupied or used by virtue of a tenancy under which a landlord is responsible for the maintenance or repair of the premises, it is the duty of the landlord to show toward any person who, or whose property, may be on the premises the same care in respect of risks arising from any failure on his part in carrying out his responsibility, as is required by this Act to be shown by an occupier of premises toward persons entering on or using them."

The result was that in Zavaglia v. Maq Holdings Ltd ^[F214] , the plaintiff, who had been visiting his brother, one of the occupiers of the house in question, recovered for injuries sustained when he fell into a stairwell around which there had been no hand-railing.

Finally, reference should be made to the legislation considered in Gaul v. King ^[F215] and Basset Realty Ltd v. Lindstrom ^[F216] . Section 6 of the Residential Tenancies Act 1970 (NS) provided that where the relation of landlord and tenant existed in respect of residential premises, there was deemed to be an agreement between landlord and tenant that certain conditions applied "as between the landlord and tenant as statutory conditions governing the residential premises". One statutory condition was that the landlord keep the premises in a good state of repair and fit for habitation during the tenancy. In Gaul v. King , the Appeal Division of the Nova Scotia Supreme Court referred to various writings ^[F217] , to s 96(1) of the Ontario legislation, and to the decision in Fleischmann and continued ^[F218] :

"Under both statutes the liability springs from the enactment and not from the contract. The duty to repair is made a statutory condition and cannot be altered by the parties. While the statute clearly gives rise to a right of action in contract I do not think that the Legislature intended thereby to exclude a right of action in tort. The result is to bring about a complete reversal of the position of the lessor from one of immunity to one of liability."

In Basset Realty , the plaintiff was the foster child of the lessee. The Appeal Division of the Nova Scotia Supreme Court said of s 6 ^[F219] :

"The tenant and members of his household were clearly within the class of persons intended to be protected by the statute and the lessor owed a duty to them to exercise reasonable care."

Such reasoning, whilst it may be the product of differences in the terms of the applicable statutes, is at variance with the decision of Ryall v. Kidwell & Son ^[F220] upon the 1909 Act and the speech of Lord Diplock in the passage set out earlier in these reasons from O'Brien v. Robinson ^[F221] . The United Kingdom legislation, putting to one side the effect of s 4(7) of the Occupiers' Liability Act, has been given a consistent construction. This is that the duty imposed by the statute is to perform the contract with the tenant, containing the term implied by statute, rather than one to avoid injury to the tenant or to third parties.

Moreover, in both the Nova Scotia decisions, the local statute was so construed as not to impose an absolute liability and as not to cover latent defects which could not be discovered by the exercise of reasonable care and skill. In Gaul v. King , Jones JA said ^[F222] :

"This is consistent with the test under the English legislation. This will not impose an undue hardship on the landlord and will afford a reasonable measure of protection to the tenant. It should be noted that the Ontario provision requires the landlord to repair notwithstanding a state of non-repair when the premises were leased. The object of the legislation is to provide reasonable standards for rental premises. This does not mean that the Legislature intended that lessors should be insurers."

Conclusions as to the Property Law Act

This consideration of the authorities bearing upon the United Kingdom and Canadian legislation supports two propositions. The first is the rejection of a construction which would impose upon the landlord liability which is absolute in nature. The second is that, in the absence of a specific legislative provision such as that made in British Columbia and with the possible qualification required by the Nova Scotia decisions, legislation in like form to s 106 of the Property Law Act has been construed so as to impose obligations owed by the landlord to the tenant, not in favour of third parties.

It was perhaps with this latter difficulty in mind and upon the footing that s 106 imposed an obligation which was owed to the tenant and was contractual in nature that the respondent relied upon s 55 of the Property Law Act ^[F223] . Sub-section (1) thereof states:

"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."

"Promise" is defined in s 55(6)(c) in terms not apt to include an obligation inserted in a contract by operation of statute. Rather, "promise" is treated in terms of intention, as one "which is or appears to be intended to be legally binding". "Acceptance" is defined in s 6(a) as meaning "an assent by words or conduct communicated by or on behalf of the beneficiary to the promisor ... within a reasonable time of the promise coming to the notice of the beneficiary". It is one thing to say that by operation of s 106 in the lease of the subject premises there was an obligation on the part of the appellant to provide and maintain the premises in a condition reasonably fit for human habitation. It is another to construe this statutory obligation as a promise by the appellant to do an act or acts for the benefit of the respondent, which was accepted by the conduct of the respondent in going into occupation of the premises with her parents.

I conclude that the allowance by the Court of Appeal of the appeal by the respondent is not to be supported by reliance upon the Property Law Act. First, the statute imposes an obligation upon the landlord as if it were an express stipulation, contractual in nature between landlord and tenant. Secondly, the respondent is a third party to that contractual stipulation. Thirdly, there is no obligation, even in favour of the tenant, in respect of latent defects unknown to the landlord and of which the landlord could not reasonably be expected to have been aware. It remains to consider the Residential Tenancies Act.

The Residential Tenancies Act

Section 7(a) of the Residential Tenancies Act provided:

"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)

to allow the tenant during the tenancy quiet enjoyment of the dwelling-house and fixtures, fittings, goods and chattels let therewith;

(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)

to keep common areas (in cases where the dwelling-house is part of a multiple house or other building) in a clean and safe condition". ^[F224]

"Dwelling-house" is defined in s 6 to mean premises "let for the purpose or principally for the purpose of residence", but with certain exclusions including premises ordinarily let for holiday purposes. The term "tenancy agreement" is broadly defined, without any limitation as to the period of the letting, and as meaning "an agreement between a landlord and tenant for the letting of a dwelling- house". Plainly, the parents of the respondent held the subject premises under a tenancy agreement which attracted the operation of s 7 of the Residential Tenancies Act. In its terms, s 7 implied "in every tenancy agreement" of whatever duration an obligation on the part of the appellant to provide, and during the tenancy to maintain, the dwelling house in two respects. The first was "in good tenantable repair" and the second "in a condition fit for human habitation" (s 7(a)(ii)). Section 7 applied notwithstanding any agreement between landlord and tenant. In that respect s 7(a) differed from s 105 of the Property Law Act and resembled s 106 thereof. It also differed from s 106(1)(a) in specifying an obligation of the landlord not only in respect of fitness for human habitation ^[F225] but also with respect to repair.

It has been suggested that, in respect of tenancy agreements to which the Residential Tenancies Act applied, the legislative scheme, which involved the commencement of both statutes on 1 December 1975, was that the Residential Tenancies Act applied to the exclusion of provisions such as s 106 of the Property Law Act ^[F226] . In the Court of Appeal, Pincus JA said in his dissenting judgment ^[F227] , and I agree:

"It seems improbable that the legislature would have desired that both of these provisions, worded similarly but not identically, apply to tenancies of dwelling houses; the intention appears to have been to set out, in the [Residential Tenancies Act], a comprehensive statement of the implied obligations of the landlord and of the tenant in tenancies of dwelling houses, rather than to oblige landlords and tenants to attempt to piece those obligations together by a scrutiny of s 7 of the [Residential Tenancies Act] and ss 105 and 106 of the [Property Law Act]."

Further, as indicated above, at least as regards s 7(a), the Residential Tenancies Act conferred upon tenants more comprehensive rights than ss 105 and 106 of the Property Law Act. Support for the construction preferred by Pincus JA is provided by s 5 of the Residential Tenancies Act. This stated:

"(1) Notwithstanding the Property Law Act 1974 and save as otherwise provided in this Act, this Act applies to -

(a)

dwelling-houses and tenancies of dwelling-houses;

(b)

tenancy agreements entered into or renewed before and valid and subsisting at the commencement of this Act;

(c)

tenancy agreements entered into after the commencement of this Act.

(2) The provisions of this Act apply to every tenancy agreement but nothing in this Act prevents a landlord and tenant from agreeing to terms and conditions that are not inconsistent with the rights, obligations and restrictions conferred or imposed by this Act."

In my view, in the circumstances of the present case, the obligation of the appellant with respect to the fitness of the leased premises for human habitation was to be found in s 7(a)(ii) of the Residential Tenancies Act. However, even if in the present case s 5 of the Residential Tenancies Act permitted a concurrent operation of s 106(1)(a) of the Property Law Act, the result, as indicated earlier in these reasons, would not be to avail the respondent.

Nor, in my view, does s 7 of the Residential Tenancies Act assist the respondent's case. First, s 7 in its very terms implied " in every tenancy agreement ... obligations " on the one hand on the part of the landlord (s 7(a)) and on the other on the part of the tenant (s 7(b)) (emphasis added). Further, it is at least as difficult to apply the third party provisions of s 55 of the Property Law Act to s 7 of the Residential Tenancies Act as to s 106 of the other statute.

Finally, there is no more reason here, than under the Property Law Act, to impose upon the landlord obligations, absolute in nature, with respect to the fitness of the leased premises for human habitation. To adapt what was said by Jones JA in Gaul v. King ^[F228] , the object of the Residential Tenancies Act was to provide reasonable standards for the rental premises to which it applied, rather than to render lessors insurers.

Result

I agree with the orders proposed by Kirby J.