Northern Sandblasting Pty Ltd v Harris (by her next friend Harris)
(1997) 188 CLR 313(Judgment by: McHugh J)
NORTHERN SANDBLASTING PTY LTD v NICOLE ANNE HARRIS (an infant by her next friend PAMELA HARRIS)
Court:
Judges:
Brennan CJ
Dawson
Toohey
Gaudron
McHughGummow
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:
McHugh J
The first question in this appeal is whether a landlord's duty to take reasonable care to protect an occupant of rented premises from the dangers of a defective electrical stove which the landlord had undertaken to have repaired was discharged by hiring a licensed and apparently competent electrician to do the repair. If that question is answered in the negative, as I think it should be, it is unnecessary to deal with other questions in the appeal.
The appeal is brought by Northern Sandblasting Pty Ltd ("the landlord") against an order of the Court of Appeal of the Supreme Court of Queensland. That Court set aside an order of the Supreme Court of Queensland (Derrington J) dismissing an action for damages for injuries brought against the landlord by Nicole Anne Harris ("the plaintiff"), then a child of nine. She sustained the injuries when she was electrocuted while attempting to turn off a garden tap in partly furnished premises which the landlord rented to her parents.
The factual background
Two days before the plaintiff was injured on 4 June 1987, her mother informed the landlord that an electric stove in the premises was not working. The landlord agreed to have it repaired. He employed a licensed electrical contractor to carry out the work, but the contractor did the work negligently. He failed to take measures to prevent the active wire and the earth wire in the stove from making contact. That failure subsequently caused a short circuit of the stove wiring. As a result, electric current escaped. If the electrical switchbox on the premises had been working properly, the short circuit would have blown a fuse in the switchbox and rendered the stove safe. However, the switchbox was defective, and the stove and earth wire remained alive.
Unfortunately for the plaintiff, the earth wire connected to the house's water pipe system and then to the main water system. From there, escaped current could normally find its way through the ground to a metal peg near an external power pole in the street. The peg was connected to a neutral wire on the power pole and ought to have attracted and safely reintroduced the escaped current into the power supply system. At the same time, the additional flow of current which passed through the active wire should have blown a fuse in the switchbox and rendered the stove safe. However, on the day of the plaintiff's electrocution, the ground between the water pipes and the metal peg was a poor conductor of electricity. As a result, the escaped current did not travel very far from the water pipes. When the stove short circuited, the ground near the pipes became charged with electricity and the pipes and taps in the water system remained alive. When the plaintiff touched a tap in the yard, her body became a conductor. The current passed through her to the ground. She was very seriously injured.
The duty of care
The landlord conceded that it owed a duty to take reasonable care for the safety of the plaintiff while she lived in the premises. This concession was properly made. Under the early common law, the lessor of a dwelling house made no implied promise that, at the time of letting, the house was reasonably fit for human habitation [F138] . However, if the lease was for the letting of a furnished house, the lessor did impliedly promise the lessee that the house was fit for habitation [F139] . Nevertheless, even in the case of furnished premises, there was no implied promise by the lessor that the house would remain reasonably fit for habitation [F140] . Apart from the special case of the letting of furnished premises, therefore, a lessor was under no liability at common law for any defects in the premises existing at the commencement, or arising during the period, of a lease [F141] . In Robbins v. Jones [F142] , Erle CJ said:
"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."
The ancient common law rule was affirmed in Cavalier v. Pope [F143] where the House of Lords held that the wife of the tenant of a dilapidated house could not sue the landlord for damages for injury resulting from the state of the premises even though the landlord had contracted to repair the house and was in breach of his obligation. However, after the House of Lords gave its decision in Donoghue v. Stevenson [F144] , the decision in Cavalier v. Pope seemed difficult, if not impossible, to justify. In Greene v. Chelsea Borough Council [F145] , Lord Denning said that Cavalier v. Pope was "a relic" of an "out- worn fallacy ... which must be kept in close confinement". In Greene , the Court of Appeal refused to apply Cavalier v. Pope to a case of licensor and licensee, holding that the immunity of a lessor for defective premises only applied in a relationship which was strictly that of lessor and lessee.
Subsequently, in Parker v. South Australian Housing Trust [F146] , the Full Court of the Supreme Court of South Australia refused to accept Cavalier v. Pope as an authoritative decision [F147] . King CJ said [F148] :
"I am satisfied that the supposed rule, for which Cavalier v. Pope [F149] is regarded as authority ... is inconsistent in principle with the modern doctrine of liability for negligence as it has developed since Donoghue v. Stevenson [F150] . 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."
In the present case, the landlord accepted that this passage stated the law of Australia. It accepted therefore that it owed a general duty to the plaintiff to take reasonable care to protect her from injury if the electrical repair work on the stove "was not done properly". But the landlord contended that, having employed a licensed electrical contractor, it had discharged the duty that it owed to the plaintiff and could not be made vicariously liable for the contractor's tort. The landlord pointed out that, by reason of s 322 of the Electricity Act 1976 (Q), it could not itself carry out the repair work because a person who is not the holder of a certificate of competency or permit, such as itself, is prohibited from doing any electrical work. Thus, the question arises as to whether a person can discharge a duty to take reasonable care for the safety of another person in respect of an activity which the law allows only a licensed person to carry out.
Liability for the act of an independent contractor
If the electrician had been an employee of the landlord, it would have been vicariously liable for the electrician's tort. But the electrical contractor was not an employee. He was an independent contractor. At common law, a person is not generally liable for the negligence of an independent contractor [F151] unless the person has "directly authorized the doing of the act which amounts to a tort" [F152] . The rationale for excluding liability for independent contractors is that the work which the contractor has agreed to do is not done as the representative of the employer. As Dixon J pointed out in Colonial Mutual Life Assurance Society Ltd v. Producers and Citizens Co-operative Assurance Co of Australia Ltd [F153] : "[t]he independent contractor carries out his work, not as a representative but as a principal."
Nearly 30 years ago Professor Atiyah marshalled the arguments which would justify imposing liability on employers for the acts of independent contractors as well as employees [F154] . Those arguments seem as convincing to me today as they did when his work was first published in 1967. However, counsel for the plaintiff did not invite the Court to re- examine the basis of the liability of an employer for the acts of an independent contractor. The question whether the common law should continue to draw a distinction between liability for the acts of employees and those of independent contractors must wait for another day.
Nevertheless, notwithstanding the general rule that an employer is not liable for the acts or torts of an independent contractor, the courts have often held an employer liable for such acts. In Bower v. Peate [F155] , Cockburn CJ said:
"[A] man who orders a work to be executed, from which, in the natural course of things, injurious consequences to his neighbour must be expected to arise, unless means are adopted by which such consequences may be prevented, is bound to see to the doing of that which is necessary to prevent the mischief, and cannot relieve himself of his responsibility by employing some one else - whether it be the contractor employed to do the work from which the danger arises or some independent person - to do what is necessary to prevent the act he has ordered to be done from becoming wrongful."
In Dalton v. Angus [F156] , Lord Blackburn said the liability of employers for the acts of independent contractors rested on duty. His Lordship said [F157] :
"[A] person causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor. He may bargain with the contractor that he shall perform the duty and stipulate for an indemnity from him if it is not performed, but he cannot thereby relieve himself from liability to those injured by the failure to perform it."
Bower and Dalton were actions for nuisance in respect of the subsidence of land. Since nuisance is a tort of strict liability with exceptions, it is understandable that the law should develop so as to prevent the owner of land from avoiding the imposition of strict liability by the device of employing an independent contractor. But the statement of Lord Blackburn in Dalton has been applied in situations where the cause of action was not one of strict liability.
Thus, a hospital has a duty to exercise reasonable care in the treatment of a patient and cannot delegate the duty to other persons such as doctors or nurses [F158] , an employer cannot delegate the duty of care which it owes to an employee [F159] , and those who conduct a school cannot delegate the duty of care that they owe to their pupils [F160] . This Court has also held that the occupier of a public hall is liable to invitees for the negligence of an architect who has failed to design a safe platform for the hall [F161] . Recently in Burnie Port Authority v. General Jones Pty Ltd [F162] , the Court held that the owner of land who allows a dangerous substance to be brought on to the land or allows a dangerous activity to be performed on the land is under a duty to ensure that reasonable care is taken to guard persons from the danger and cannot delegate the discharge of that duty to others. In all these cases, therefore, the courts have held that the duty that the defendant owed to the plaintiff was a non-delegable, personal duty which could not be discharged by hiring a skilled person to perform it.
In Kondis v. State Transport Authority [F163] , Mason J explained the basis of decisions such as these as follows:
"In these situations the 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."
The explanation of the non-delegable duty cases given by Mason J in Kondis was approved by a majority of this Court in Burnie Port Authority [F164] . Moreover, as Mason J pointed out in Kondis [F165] , the effect of the doctrine of non-delegable, personal duty is that it substitutes "for the duty to take reasonable care a more stringent duty, a duty to ensure that reasonable care is taken". In my opinion, that doctrine applies to the facts of this case.
The landlord's duty to the plaintiff was a personal, non- delegable duty
The landlord had undertaken the repair of a defective household electrical appliance which, unless carried out with due care and skill, exposed those who resided on the premises to death or serious bodily injury. The safety of the residents of the premises was utterly dependent on the proper performance of that work. The plaintiff as a child was in a position of special dependence and vulnerability. Although the landlord was not the occupier of the premises, it had a duty to maintain the premises "in a condition reasonably fit for human habitation" [F166] and a duty to "maintain the dwelling-house in good tenantable repair and in a condition fit for human habitation" [F167] . In return for performing these duties, the landlord received rent. In these circumstances, the plaintiff and her parents were entitled to expect that a high degree of care would be exercised in carrying out the repair work.
Even if, as the landlord contended, the duties of maintenance were contractual only and unenforceable by the plaintiff, they cannot be isolated from the group of factors that determine the standard of care that the landlord owed to those who, like the plaintiff, resided on the premises. In determining whether, upon the landlord undertaking to get the stove repaired, the plaintiff and her parents might reasonably expect that due care would be exercised in repairing the stove, every consideration that might affect the judgment of a reasonable person is relevant. Whether the landlord was or was not under an existing duty to make the stove reasonably fit for use was one of those considerations.
When all relevant factors are considered, the proper conclusion is that the landlord owed the plaintiff a personal, non- delegable duty of care because he undertook to have an electrical stove repaired in circumstances where the plaintiff and her parents might reasonably expect that due care would be exercised in repairing the stove. The present case cannot persuasively be distinguished from the holding in Burnie Port Authority that a landowner who allows a dangerous substance to be brought onto the land or who allows a dangerous activity to be performed on the land owes a non-delegable duty of care to persons who come on the land. Nor can it be persuasively distinguished from the holding of the House of Lords in Thomson v. Cremin [F168] that the owner of a ship who invites a stevedore's labourer to work on the ship owes a personal duty of care to that person and is liable for the negligence of a firm of shipwrights in fixing fittings to the ship. That being so, the landlord's duty to the plaintiff in this case was not merely a duty to take reasonable care; it was a duty to ensure that reasonable care for her safety was taken [F169] .
It is not to the point that under Queensland law repair of the stove could be carried out only by a licensed electrician [F170] . The fact that that performance of a personal duty of care cannot be carried out by the person owing the duty but only by a skilled person has never been a ground for holding that the hiring of such a person discharges the duty [F171] . Nor in principle can it make any difference that only a licensed person can perform the task that is the subject of the duty because the duty is a duty to ensure that reasonable care is taken. In discharging its personal duty to its employee to provide and maintain safe plant and equipment, for example, an employer is often required by law to employ licensed electricians to install or repair a particular piece of plant or equipment. But if an employee is injured because of the electrician's negligent installation or repair, the employer is in breach of the personal, non-delegable duty of care that it owes to the employee. Similarly, in the present case, the landlord's duty of care was not delegable to the electrical contractor or discharged by hiring him to repair the stove. When the contractor failed to take reasonable care to repair the stove, he not only committed a tort against the plaintiff but he also caused the landlord to breach the duty that it owed to the plaintiff.
In my opinion, the appeal should be dismissed.