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

(1997) 188 CLR 313

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(Judgment by: Toohey J)

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

Court:

Judges: Brennan CJ
Dawson

TooheyGaudron
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

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Judgment by:
Toohey J

The circumstances giving rise to this appeal are detailed in other judgments. Some limited reference to those circumstances will be necessary.

The appellant conceded that it owed a duty of care to the respondent. The nature and content of that duty, as conceded, remained ill defined. Certainly the appellant must be taken to have accepted what was said by King CJ in Parker v. Housing Trust ^[F82] :

"I am satisfied that the supposed rule, for which Cavalier v. Pope ^[F83] 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 ^[F84] . 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."

I am satisfied, for the reasons given by Gummow J, that neither the Property Law Act 1974 (Q) nor the Residential Tenancies Act 1975 (Q) provides a cause of action upon which the respondent might recover damages against the appellant. That is not to say that those enactments are irrelevant to the common law duty of care which the appellant owed to the respondent. More is said about this aspect later in these reasons.

There were two electrical defects which played a part in the shock which the respondent received and which left her with such serious disabilities. The first, though not in time, was the failure by the electrical contractor in repairing the stove to ensure that the earth wire in the stove could not come into contact with the active wire in the stove. This unquestionably constituted negligence on the contractor's part for which he was held liable. He has not challenged the judgment against him.

The second defect arose because the major earth wire was not properly connected to a link with the neutral wire in the switch box, with the result that when the active wire came into contact with the earth wire in the stove a fuse in the switch box did not "blow". The excess electricity was channelled through the major earth wire to water pipes where it was to be conducted through the ground to another neutral wire in an external power pole. Because the ground where the earth wire was located was a poor conductor, the electricity did not escape but remained in the water pipes. In consequence, when the respondent in her bare feet on wet ground grasped an outside tap she was electrocuted.

The appellant bought the premises in July 1984. At that time, it seems, the North Queensland Electricity Board ("the Board") inspected and passed the premises which remained unoccupied until 12 December 1986 when the Harris family went into possession. Mr and Mrs Harris were the tenants. Earlier, in November 1986 the appellant's electrical contractor had checked and repaired the refrigerator and stove. On 2 June 1987 an element in the stove was found not to be working properly. Mrs Harris spoke to someone in authority at the appellant's office who authorised Mr Briggs, its usual electrical contractor, to examine the stove and give a quote for repairs. Mr Briggs reported to the appellant which authorised him to proceed with the work. The accident occurred on 4 June 1987 after the work had been done.

The major earth wire had lost contact with the neutral wire or link through the weight of a nest of tangled wires. There was no evidence to establish when or by whom the work which resulted in the tangle of wires was carried out. Clearly it was some time before the accident. It may even have been before the appellant bought the premises.

In terms of common law negligence, two possible approaches were open to the respondent. One was to assert a failure on the part of the appellant to have the electrical system inspected before the family went into possession. The other was to allege a failure on the part of the appellant to ensure that the contractor exercised reasonable care in repairing the stove.

There are real difficulties in the way of the respondent making good a case based upon a failure by the appellant to inspect the switch box before she and her family took possession. Indeed none of the judges in the Court of Appeal found in her favour on that basis ^[F85] . The difficulties are in part evidentiary. There was no evidence to establish when the earth wire became disconnected. It can hardly be claimed that the appellant owed a duty to carry out regular inspections. Furthermore the disconnection of the earth wire only gave rise to a problem because of the negligence of the contractor.

As to the other approach, the respondent could not succeed unless the duty of care owed by the appellant in respect of the defective stove was a non-delegable duty. The appellant engaged a qualified electrician to carry out the work. In respect of the failure to do the work properly the respondent must show that this was not enough. She must show that the appellant's duty extended to ensuring that the work was done with reasonable skill and care.

In the Supreme Court of Queensland it was only Fitzgerald P who would have held the appellant liable at common law for breach of a non-delegable duty. He did so first by acknowledging the correctness of what had been said in Parker v. Housing Trust and then by the application of what were described as proximity factors and policy considerations. By reference to these factors and considerations and in the light of recent decisions of this Court, Fitzgerald P held that the appellant owed a special responsibility to the respondent to ensure that reasonable care was taken by the electrician in repairing the stove. That responsibility was not met and the appellant was liable to the respondent. I reach the same conclusion by much the same path.

The starting point for this conclusion is the existence of a general duty owed by the appellant to the respondent to take reasonable care to protect her from injury in the carrying out of the repair work on the stove. While accepting the existence of such a duty, the appellant contended that it had discharged the duty by engaging a licensed electrician. In support of that contention the appellant relied upon s 322 of the Electricity Act 1976 (Q) which prohibits anyone who is not the holder of a certificate of competency or a permit from doing electrical work. On what footing, it asks, can it be held liable for work which it could not do itself and which it did through a person qualified and permitted to do the work? That person was an independent contractor, not an employee of the appellant for whose negligence the appellant would be vicariously liable.

There has been criticism of the concept of a non-delegable duty in the law of tort ^[F86] . And there has been criticism of the expression itself on the footing that one cannot delegate a duty imposed by law; rather the question is whether the duty is personal or whether it can be discharged by engaging someone else to perform what has to be done ^[F87] . There is force in these criticisms but the concept is now part of the law as the expression is part of its vocabulary. It is the operation of the concept in the circumstances of the present appeal that is critical.

In Burnie Port Authority v. General Jones Pty Ltd ^[F88] Mason CJ, Deane, Dawson, Toohey and Gaudron JJ adopted a passage in the judgment of Mason J in Kondis v. State Transport Authority ^[F89] where his Honour identified some of the principal categories of case in which the duty to take reasonable care under the ordinary law of negligence is non- delegable and said that the common element in those cases was that:

"the person on whom [the duty] 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".

After referring to this passage, the majority said ^[F90] :

"It will be convenient to refer to that common element as 'the central element of control'. Viewed from the perspective of the person to whom the duty is owed, the relationship of proximity giving rise to the non-delegable duty of care in such cases is marked by special dependence or vulnerability on the part of that person."

The passage from the judgment of the majority in Burnie relates assumption of responsibility to special dependence or vulnerability, though not in a way that confines responsibility to those relationships. Certainly the presence of one or other points to an assumption of responsibility and it is the assumption of responsibility which imposes on a person a personal, that is non-delegable, duty of care. Foreseeability itself will not generate this special duty of care. It is "the relationship of proximity giving rise to the non-delegable duty of care".

In Bryan v. Maloney , where the issue was the duty of care owed by the builder of a house to a subsequent purchaser, Mason CJ, Deane and Gaudron JJ said ^[F91] :

"[T]he question whether the requisite relationship of proximity exists in a particular category of case is more likely to be unresolved by previous binding authority with the consequence that the 'notion of proximity ... is of vital importance'". (footnote omitted)

In Hill v. Van Erp , where a solicitor was held liable in negligence to a beneficiary under a will, I said of proximity ^[F92] :

"Attention is focused on established categories in which a duty of care has been held to exist; analogies are then drawn and policy considerations examined in order to determine whether the law should recognise a further category, whether that be seen as a new one or an extension of an old one."

Much the same approach is demanded here because of the situations in which a personal responsibility has been held to exist.

In Kondis ^[F93] Mason J identified some of those situations: hospitals, school authorities, employers, and possibly invitors ^[F94] . He also referred to cases in which a person has been held liable for damage caused through the interference with the rights of an adjoining landowner due to the negligence of an independent contractor ^[F95] . His Honour then said ^[F96] :

"The decision in Meyers v. Easton ^[F97] appears to rest on a slightly different footing."

In that case a landlord had, at the solicitation of his tenant, undertaken to renew the roof of his house. Stawell CJ said ^[F98] :

"Where one person becomes liable to perform, or undertakes the performance of, a duty to another, it is quite immaterial ... whether he performs the duty himself or employs an agent, or an independent contractor to perform it. The liability ... for the proper performance of the duty, adheres to the person who undertook it; he cannot get rid of it."

Stawell CJ's statement was an echo of what had been said by Blackburn J in Mersey Docks and Harbour Board v. Gibbs ^[F99] who in turn adopted the language of Williams J in Pickard v Smith ^[F100] . Williams J said that "no one can be made liable for an act or breach of duty, unless it be traceable to himself or his servant or servants in the course of his or their employment". But, he continued:

"That rule is, however, inapplicable 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."

The language is consistent with the assumption of a particular responsibility referred to in Kondis and in Burnie . In Burnie that responsibility was held to arise from the central element of control exercised by the defendant.

In the present case the appellant undertook to have the stove repaired and engaged an electrician for that purpose. There is an analogy with Meyers v. Easton . Unless the repairs were carried out with reasonable care and skill, there was a risk of serious injury, even death, to the occupants of the premises. That risk was reasonably foreseeable. "In the realm of negligence, causation is essentially a question of fact, to be resolved as a matter of common sense." ^[F101] The negligence of the contractor was clearly a cause of the injury to the respondent.

It is true that the appellant was forbidden by law to do any of the work itself, other than through a licensed electrician. But that is no answer to the respondent's claim if there was a personal duty of care on the appellant. The prohibition applied equally to the occupiers. In any event a statutory obligation to employ a licensed electrician to effect electrical work does not modify a personal duty of care, just as in the case of an employer's duty to provide safe premises and plant for employees. Importantly, by statute there was implied in the tenancy agreement an obligation on the landlord to "maintain the dwelling-house in good tenantable repair and in a condition fit for human habitation" ^[F102] . And in so far as the arrangement constituted a short term lease, there was an obligation on the lessor implied by statute to maintain the premises "in a condition reasonably fit for human habitation" ^[F103] .

The relationship of proximity in the present case is marked by a number of features. They are summed up in the judgment of Fitzgerald P in the following way ^[F104] :

"Material factors in the present case (in addition to the relationship between the appellant and the respondent) are:

(a)

the respondent let the dwelling- house, as such, for reward;

(b)

the dwelling-house was let for immediate occupation as a family home;

(c)

the appellant is an infant member of the tenant's family;

(d)

the respondent had obligations with respect to the premises under the Residential Tenancies Act ;

(e)

electricity is a dangerous substance;

(f)

the defect in the earthing safety- system was readily ascertainable;

(g)

there was no matter or circumstance which might have indicated to the respondent, or the appellant or her family, that there was a risk that the earthing safety-system was not functioning properly;

(h)

the respondent did not cause the earthing safety-system to be checked;

(i)

the fault in the stove resulted from the negligence of the respondent's contractor;

(j)

there was no matter or circumstance which might have indicated to the respondent, or the appellant or her family, that there was a risk that the stove was defective or unsafe."

The existence of these features cannot be questioned. They point to what the majority in Burnie referred to as "the central element of control" in the appellant and a special dependence or vulnerability on the part of the respondent, such as to give rise to an assumption of responsibility on the part of the appellant. It is that assumption of responsibility which identifies a duty of care on the part of the appellant which it could not discharge simply by the engagement of an independent contractor to do the work. In Burnie , speaking of the relationship of proximity and the position of the respondent, the majority said ^[F105] :

"He or she is specially dependent upon the person in control of the premises to ensure that ... reasonable precautions are in fact taken ... [The party in control] is 'so placed in relation to [the other] person or his property as to assume a particular responsibility for his or its safety'."

Burnie was concerned with the liability of the owner of a building who retained an independent contractor to do work on extensions to the building. The work involved welding activities in close proximity to highly inflammable material. Due to the contractor's negligence sparks or molten material fell onto cartons containing the material. This caused a fire which spread to a part of the building occupied by a licensee. In the present case the respondent was not a person outside the premises in which the electrical work was done. But the cases have an important similarity in the high risk of damage to another if the work in question was done negligently. In any event the principles enunciated in Burnie point the way to the disposition of the present appeal ^[F106] .

Fitzgerald P, having referred to relevant authorities, said ^[F107] :

"Ultimately, this case must be decided by balancing, or choosing between, competing policy considerations."

To some extent this was an echo of what was said by Mason CJ, Deane and Gaudron JJ in Bryan v. Maloney ^[F108] :

"Necessarily, ... the resolution of that question requires the articulation of both the factual components of the relevant category of relationship and the identification of any applicable policy considerations."

Fitzgerald P examined the policy considerations. He did so by asking the question "whether the loss should be left to be where it has fallen, or is there sufficient reason for transferring it from the [respondent] to the [appellant]" ^[F109] . As he said, the practical necessity for landlords to rely upon apparently competent qualified contractors was not conclusive against the present respondent. The same may be said of any relationship involving a special responsibility to ensure that reasonable care is taken. The argument that liability in such a case as the present one would deter the commercial provision of low-cost housing for those in need of it, his Honour also held to be unpersuasive. The Residential Tenancies Act was in force for nearly 20 years. Section 7(a)(ii) imposed an obligation on a landlord to maintain a dwelling-house "in good tenantable repair and in a condition fit for human habitation". Fitzgerald P drew attention to the current legislation, the Residential Tenancies Act 1994 (Q) where the obligation of the lessor to maintain the premises in a reasonable state of repair has regard to "the age of, rent payable for, and expected life of, the premises" ^[F110] . But as his Honour observed ^[F111] :

"While those provisions limit a landlord's obligations, they cannot be intended to derogate from a fundamental requirement of basic safety."

In any event it is the 1974 Act which has relevance to the present proceedings.

In Bryan v. Maloney a policy consideration which the majority treated as important was the concern to avoid the imposition of liability "in an indeterminate amount for an indeterminate time to an indeterminate class" ^[F112] . Such a concern is not a telling consideration here; the class of persons to whom a special duty of care is owed is readily ascertainable.

For all these reasons, I would hold the appellant liable to the respondent. It follows that the appeal must be dismissed.