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

Judges: Brennan CJ
Dawson
Toohey
Gaudron
McHugh
Gummow

Kirby JJ

Subject References:
NEGLIGENCE
Duty of care
Personal injury
Leased premises
Electrical faults
Injury to child of tenants
Duty of landlord in respect of occupied premises
Proximity
Assumption of responsibility
Control and vulnerability
Whether under non-delegable duty to ensure premises safe.
Duty of landlord in respect of premises prior to occupation
Analogy with duty of occupier to invitee
Whether under duty to ensure premises as safe for habitation as reasonable care and skill can make them
Whether under duty in respect of defects which pose special dangers and which are discoverable on inspection only by persons exercising special care and expertise.
LANDLORD AND TENANT
Statutory obligations imposed on landlord
Obligation to provide and maintain premises in a condition reasonably fit for human habitation pursuant to s 106 of the Property Law Act 1974 (Q)
Obligation to provide and maintain premises in good tenantable repair and in a condition fit for human habitation pursuant to s 7 of the Residential Tenancies Act 1975 (Q)
Construction and interaction of obligations imposed by statute
Whether obligations imposed as contractual obligations between landlord and tenant
Ability of third party to sue for damages for breach of obligations
Availability of relief pursuant to s 55 of the Property Law Act 1974 (Q).

Other References:
Property Law Act 1974 (Q), ss 55, 105, 106.
Residential Tenancies Act 1975 (Q), s 7.

Judgment date: 14 AUGUST 1997

Judgment by:
Kirby J

This appeal raises two essential questions. The first is whether, by the common law a landlord of residential premises owes a non-delegable duty to the child of a tenant in respect of the safety of the premises. The second is whether, under applicable legislation, the child may recover damages from the landlord for injuries received following an incompetent repair of an electrical fault which, unknown to the landlord, left the premises in an unsafe condition.

The facts are tragic. Tragic facts put legal principles to the test. They stimulate a decision-maker to explore possibilities which might not be considered in an insubstantial or trivial case. Many recent decisions of this Court show that the common law, in the field of torts, may be refined and restated ^[F229] , developed ^[F230] and rewritten ^[F231] by judicial decision. Furthermore, in construing statutory language, judges will often enjoy leeways for choice. However, the development of the common law by the judiciary must be incremental. It must be in harmony with general legal doctrine ^[F232] . The interpretation of statutes must give effect to the purpose of the legislature revealed in the words chosen ^[F233] . In the field of tort liability at common law or under legislation, the suggestion that the legal obligations of a particular litigant should be enlarged by judicial decision, so as to impose new responsibility to meet the perceived needs of the case, requires that regard be had not only to the general considerations of principle and policy which that course will involve ^[F234] but also to the economic costs of loss redistribution which may result when the solution for the particular case becomes a principle of general application for all like cases ^[F235] .

Because of the paucity of materials with which courts in Australia typically decide issues of this kind the evaluation of suggested considerations of principle and policy and the estimation of economic costs can only be attempted in a very general and imprecise way. Yet where these considerations loom large, they will often present a warning to the judiciary that it has reached the limits of its function to develop the law. Judges must then accord the legislature the first opportunity to address the problem. Otherwise, a tragic case may lead the court into premature action or a distortion of legal doctrine which is impermissible ^[F236] .

The daughter of tenants of residential premises suffers electrical shock

In July 1984 Northern Sandblasting Pty Ltd ("the appellant") purchased premises in Currajong, near Townsville in Queensland. At the time of the purchase the premises were inspected by the North Queensland Electricity Board ("the Board") to check the electrical installations. They were passed by the Board. The premises were unoccupied for a time prior to 12 December 1986. On that day, the appellant agreed with Mr Phillip Harris and Mrs Pamela Harris ("the tenants" ^[F237] ) that they could occupy the premises for a rent of $100 per week. The agreement was in the nature of an informal weekly tenancy. It was intended that the premises, which were partly furnished, would be immediately occupied by the tenants. Because the appellant was a company owned and controlled by a relative of the tenants, it may be taken that it was aware that living with them in the premises were their son and a daughter, Nicole Harris ("the respondent"). She was nine years of age at the time.

To render the premises habitable, the Board, on the instructions of the appellant, reconnected the supply of electricity. There was a dispute at the trial as to whether this involved reconnection at the power pole or the simple act of switching the power on at the domestic switch box within the premises. The primary judge accepted the evidence of the Board's employee that the latter was the case.

On 2 June 1987, Mrs Harris noticed that one element on the electric stove provided in the premises was not working. She contacted the appellant. It authorised the tenants to obtain a quotation from Mr Brian Briggs, an electrical contractor previously used by the appellant for electrical repairs. Mr Briggs was duly engaged. He attended to the task. However, when he replaced the coverplate on the stove, he failed to ensure that the active wire, carrying the electrical current, had no potential to make contact with a slack earth wire nearby. This mistake was only discovered after the injury to the respondent.

On 4 June 1987, the respondent reported feeling a tingling sensation when she touched the tap in the bathroom whilst having a bath. Her brother felt nothing when using the stove. By inference the respondent was in bare feet on the bathroom floor. The brother was wearing rubber-soled shoes in the kitchen. After her bath, the respondent was standing in bare feet on wet grass when she was instructed by her mother to turn off an outside garden sprinkler. When she grasped the tap for this purpose, she was subjected to a prolonged charge of electrical current. This caused severe brain damage. It left her "in a vegetative state, capable only of coarse responses to stimuli and without understanding or awareness of her condition" ^[F238] . The respondent's injuries were profound, their likely duration limited only by a diminished life expectancy. It was found that, if she were entitled to recover damages, the proper verdict would be of the order of $1.2 million ^[F239] .

The respondent, by her mother as next friend, sued Mr Briggs, the Board and the appellant. Her claim was heard in the Supreme Court of Queensland by Derrington J. His Honour described how two considerations had contributed to the fact that the garden tap was charged with electrical current. The first was the condition of the defective element of the electrical stove. The Judge found that "[h]aving rendered the element capable of operation [Mr Briggs] should have seen that the active wire that he had repaired would become part of a dangerous situation in association with the earth-wire" ^[F240] . He noted that Mr Briggs agreed that this was so. This constituted negligence on his part. Yet, if the earthing systems in operation in the premises had been functioning correctly, a short circuit between the active wire and earth wire in the stove would have caused a fuse to blow, limiting the duration of exposure to the active current.

There were two fuse systems operating in the premises. The first was in the domestic switch box. When the stove short-circuited, because of Mr Briggs' negligent repair of the wiring, this should have caused a fuse in the switch box to "blow". That did not occur. As a result, the active current was diverted to the alternative or backup system for the escape of electricity. This involved the passage of the electrical current along the major earth wire embedded in the soil. Normally such current would find its way through the ground to a metal peg near the external power pole in the street adjoining the premises. However, as sometimes happens, the ground contiguous to the water pipes in this case had a high resistance, making it a poor conductor of electricity. The result was that the current could not escape. It activated the water pipes in the vicinity. It was in this way that the tap, grasped by the respondent, became alive. Because the respondent was standing in bare feet on wet grass, her body became an efficient conductor of electricity. It afforded a route, alternative to the water pipe system, resulting in the passage of the electric current through the respondent's body to the ground.

The judge finds the electrician but not the landlord liable

Derrington J found in favour of the respondent against Mr Briggs. He did so upon the limited basis that, in effecting his repair of the element in the electric stove, Mr Briggs had left the active and neutral wires in a state that they could easily come into contact with each other, as they did. He rejected other allegations against Mr Briggs, including that he should have conducted a test on the earthing system of the house by the use of equipment which would not ordinarily be carried for the relatively simple task of repair of the stove for which he had been engaged.

Derrington J rejected the claim against the Board based on its alleged negligence in conducting the inspection years before the accident and in reconnecting the electricity to the premises. His Honour also dismissed the claim against the appellant. He rejected that claim so far as it was based on the Residential Tenancies Act 1975 (Q) ^[F241] . As to the claim based on the common law, he accepted that, in the circumstances of the case, the appellant, as landlord, owed the respondent, as daughter of the tenants, "a general duty of reasonable care to keep the premises safe so as to avoid harm to her from that source" ^[F242] . However, he dismissed the argument that there had been any personal fault on the part of the appellant. He also rejected the submission that the appellant could not avoid its liability by the "engagement of a competent tradesman such as

Mr Briggs" ^[F243] . He examined the authority of this Court on non-delegable duties ^[F244] . He concluded that, in this case, the special features necessary to attract a "personal" or "non-delegable" duty of care ^[F245] were missing. Such features were inapplicable to the relationship of landlord and tenant. Upon these grounds, Derrington J dismissed the respondent's claim against the appellant. Judgment was entered in favour of the respondent against Mr Briggs alone.

A divided decision of the Court of Appeal

The respondent appealed to the Court of Appeal. She confined her appeal to a challenge against the dismissal of the claim against the appellant. It must be inferred either that Mr Briggs was uninsured or that any insurance cover which he held was inapplicable or insufficient to meet the judgment.

By majority, the Court of Appeal upheld the respondent's appeal ^[F246] . It permitted her to amend her statement of claim to add a claim under the Property Law Act 1974 (Q), s 106(1)(a). Upon that amendment being made, it set aside the judgment in favour of the appellant. It ordered, in effect, that the judgment of the primary judge be amended to include judgment against the appellant as well as Mr Briggs.

The Judges constituting the Court of Appeal divided in the answers which they gave to the respondent's arguments based on the common law and statute.

Fitzgerald P found in favour of the respondent on the basis of the "special" duty which exists in particular categories of cases ^[F247] . His Honour said ^[F248] :

"[T]he [appellant's] duty of care to the [respondent] was breached as she submits. As an aspect of letting its house for reward, the [appellant] was required to ensure its fitness for human habitation, including the safety of the electricity system and electrical equipment. That was not a responsibility which it could delegate, or discharge, by waiting for notification of problems from an ingoing tenant or, given such notification, by appointing apparently qualified and competent persons."

In the light of this conclusion, Fitzgerald P did not have to reach a final view on the respondent's claims based upon the Residential Tenancies Act and the Property Law Act. He acknowledged the force of the criticisms mounted against the application of each of these Acts as an alternative source of liability. However, he joined in the proposal of McPherson JA that the respondent should have leave to raise, for the first time on appeal, the claim based on the Property Law Act ^[F249] .

McPherson JA rejected the respondent's claim at common law. He dismissed the claim based upon the suggested failure to make inspections which would have revealed the "neutral link problem" involved in the alternative earthing system connected to the water pipe. He also rejected the claim based upon the suggested non-delegable duty owed in a situation of "special dependence or vulnerability" ^[F250] . Nevertheless, he concluded that the respondent was entitled to succeed in reliance upon statutory duties imposed upon the appellant as landlord. Specifically, he held that the respondent was entitled to succeed based on the obligation implied by s 7(a)(i) of the Residential Tenancies Act . And he found that s 106(1)(a) of the Property Law Act also applied to the subject lease and presented "a less controversial basis on which to found a judgment in her favour" ^[F251] . The latter provision had not been relied on at the trial. McPherson JA considered that it was nonetheless available, being no more than the "legal label" to be attached to the respondent's cause of action ^[F252] .

Pincus JA dissented from the orders favoured by the majority. He concluded that the appellant was not liable at common law, either for its own suggested negligence or in respect of a "non-delegable duty" owed to the family of a tenant ^[F253] . He found no analogy between this case and the other instances in which non-delegable liability have been found. His Honour rejected the argument that the Residential Tenancies Act gave rise to a cause of action, at least one for which the respondent could sue ^[F254] . Similarly, he rejected the approach of McPherson JA that the Property Law Act could found such a cause of action ^[F255] . This reasoning led Pincus JA to confirm the orders of the primary judge.

The result was that, upon neither basis on which the respondent succeeded in the Court of Appeal was there a majority. Although Fitzgerald P grounded the appellant's liability in the "special" duty of care at common law which he found, that opinion was rejected by each of the other judges. Although McPherson JA found for the respondent on the basis of breach of statutory duty, principally s 106(1)(a) of the Property Law Act, Pincus JA rejected that conclusion and Fitzgerald P, whilst reserving its correctness, expressed serious doubts about it.

The appellant, by special leave, now seeks to secure in this Court the restoration of the orders of the primary judge exempting it from liability.

Defining the issues: matters not in contest

To define the issues in the appeal, it is helpful to list a number of matters which can be put out of account:

1.

No issue was raised concerning the liability of Mr Briggs or the exclusion of the Board from liability. At one stage the respondent's parents were joined as a third party in the proceedings, allegedly for their failure to alert the appellant about the defects in the premises. They too were dismissed from the proceedings. None of these orders is challenged.

2.

The appellant conceded that it owed a duty of care, in negligence, to the respondent. The appellant disputed that it owed any duty pursuant to its contract of lease with the tenants to which the respondent was not a party. But it accepted that it owed a general duty, by the law of negligence, to exercise care to keep the premises reasonably safe for the respondent's use and to avoid reasonably foreseeable risk of injury to her. The precise foundation for this concession was never made clear. But the concession relieved the Court of Appeal, and this Court, of considering directly whether the immunity of a landlord from liability in negligence, formerly recognised by the common law in decisions such as Cavalier v. Pope ^[F256] , still represented the law of Australia. Long ago, that rule was modified by statute in parts of the United States of America ^[F257] . More recently, it was rejected in that country as a principle of common law on the ground that it found "its source in an agrarian England of the dark ages" and was a rule which led to "untoward favoritism ... for landlords" ^[F258] with the result that "the law in this area is a scandal" ^[F259] . It was a rule "to be relegated to the history books where it more properly belongs" ^[F260] . Under the influence of legislation, the common law rule was abandoned in Canada ^[F261] . It was rejected in the Republic of Ireland ^[F262] . It was held inapplicable to Australian conditions by the Full Court of the Supreme Court of South Australia ^[F263] . No attempt was made to resurrect it in this Court. The appellant accepted, as it had below, that its common law liability in negligence to the respondent was to be decided, without preconceptions as to a landlord's former immunity.

3.

No point was taken that the informal lease of the subject house did not include the garden where the respondent was injured or the tap from which she received the electric shock ^[F264] . Nor does anything turn upon the fact that the house was only partly furnished when occupied by the respondent and her family - a matter thought relevant in some of the earlier cases ^[F265] .

4.

Some academic writing has suggested that consideration might be given to adopting a principle of vicarious liability for the acts and omissions of independent contractors ^[F266] . There are, as McHugh J has observed, strong reasons for re-visiting this area of the law. However, the respondent did not argue that the appellant was vicariously liable to her for the negligence by Mr Briggs. I agree that at some future time it might be necessary to reconsider this question. Factors suggesting the need to do so include: the rationalisation of past classifications of liability ^[F267] , the growing catalogue of instances of suggested "non-delegable duty" ^[F268] , the criticisms voiced about to the lack of a coherent theory ^[F269] , the retreat from the control test as an adequate explanation of the differentiation between employees and independent contractors ^[F270] and changing social conditions by which tasks formerly performed by employees are increasingly performed by contractors. In the light of the way in which these proceedings were conducted, it would not be appropriate to venture upon such a re-examination in this case.

5.

No point was taken by the appellant on the procedural course adopted by the Court of Appeal, as a prerequisite to entering judgment in favour of the respondent. Not only did this course require an amendment of the statement of claim to permit formulation of the case based on the Property Law Act . It also required the provision of an extension of time to bring the new claim following expiry of the ordinary three year limitation period ^[F271] .

The appellant kept its eyes fixed on the important points presented by the appeal, namely the liability of a landlord to a family member of a tenant, whether by common law or by statute; whether for the individual default of the landlord or liability for the performance of a non-delegable duty; whether under the Residential Tenancies Act or the Property Law Act . To these questions I now turn.

The landlord was not liable for a failure to inspect

It is convenient to dispose first of a point raised by the respondent in a notice of contention. This suggested that she was entitled to succeed upon an argument not decided in her favour by any of the judges in the Court of Appeal. This was that the appellant had failed to undertake a simple inspection which, had it been carried out, would have revealed the disconnected earth wires at the neutral link which resulted in the failure of the primary safety system governing the operation of the fuses. Had that system worked, as intended, a fuse would have blown when the stove element short-circuited. That would have prevented the exposure of the respondent to the risk of the electric shock which occurred.

To support this argument, the respondent relied on a series of "proximity factors" collected by Fitzgerald P in his reasons ^[F272] . These included the fact that the appellant let the dwelling-house for reward; that it was let for immediate occupation as a family home; that the respondent was an infant member of the tenants' family; that the appellant had obligations with respect to the premises under the Residential Tenancies Act ; that electricity is a potentially dangerous substance; that the defect in the earthing safety system was readily ascertainable; that there was nothing which alerted the respondent or her family to the risk that the earthing system or the stove was not functioning safely; that the fault in the stove resulted from the negligence of the appellant's contractor; and that the appellant did not cause the earth safety system to be checked.

The judges below were correct to place no reliance on this ground. Unless liability can be found in the appellant on the basis of a "special" duty of care of a non-delegable kind, or on the basis of breach of statutory duty, the general principles of negligence would not be sufficient to support the asserted liability of the appellant on the basis of a want of the exercise of reasonable care.

There are many reasons for this conclusion. The imposition of a duty of regular and repeated inspections of domestic electricity systems was sustained neither by evidence of common practice nor by commonsense. Moreover, the efficacy of any such practice would depend on the frequency and timing of the inspections ^[F273] . The hot plate on the stove had been tested but two days before the respondent sustained her injuries. Unless an inspection had providentially taken place in the interval of time between Mr Briggs' negligent work and the injury, it would not have averted the coincidence of circumstances which led to the respondent's electric shock.

The argument about a suggested duty of electricity inspections could not stop there. If correct in principle, it would require regular inspections against the risk of other perils, eg gas supply, floorboards, balustrades, etc. In the absence of evidence about the prevalence of, and need for, any such inspections of rented accommodation, there was no foundation for imposing such a duty on landlords leasing residential premises ^[F274] . The fault in the neutral link would not have been obvious to an untrained observer such as the appellant. Indeed, the law in Queensland forbade anyone but a qualified person from engaging in the work of electrical repair ^[F275] . Yet this is precisely the repair which the appellant promptly authorised once a defect was reported to it by the tenants in possession. It cannot be said that the appellant's admitted duty of care was breached in a way that caused the respondent's injuries by a failure of inspection on the part of the appellant. Whatever else the conceded duty of care required, it did not oblige a landlord to institute a system of inspections against the off-chance that a defect might be found in the electrical earthing system of which defect it had no notice. The precaution which the appellant took, when alerted to an electrical problem, was that which reasonable care required. It engaged a qualified electrical contractor, apparently with the requisite skills.

Landlord and tenant and the suggested "special duty" of care

The notion that some relationships are such as to impose on the dominant party a "special duty" of care at common law which cannot be delegated to independent contractors or employees has been traced ^[F276] to Pickard v. Smith ^[F277] . It was there held that the duty of an employer to an employee was "personal". The fact that the employer entrusted the discharge of the duty to another employee who neglected it furnished no excuse. When this approach was followed in Dalton v. Angus & Co ^[F278] , in the different context of a neighbour's right of support for land, it afforded the starting point for the gradual emergence of a number of categories of relationship where the duty of care was classified as "special" ^[F279] . The obligation in such cases was held to be a personal one to ensure that the duty was fulfilled ^[F280] . Although, of its nature, it might have to be performed by servants or agents, its discharge could not be escaped by delegation. The party owing the duty was liable both for its own personal negligence and for any negligence on the part of its delegate ^[F281] .

Academic writers have been critical of the failure of courts to explain clearly the precise characteristics of relationships said to justify the imposition of the exceptional non- delegable duty of care ^[F282] . Judges ^[F283] and commentators ^[F284] have admitted that it is not always easy to identify the boundaries of the categories of non-delegable duty. Various criteria are nominated, ranging from the superior capacity of the defendant to bear the risk of mishap ^[F285] ; its greater power to see that care is taken so as to avoid mishap ^[F286] ; the special obligations which it is proper to attach to extra-hazardous activities ^[F287] ; and the special dependence or vulnerability of the person to whom the duty is owed if it is not discharged ^[F288] . Each of these considerations may be relevant in the case of particular categories accepted as falling within this class. Whilst they help to describe the idea which lies behind the imposition of a "special" duty of care, they do not define with precision the circumstances where the special duty will be imposed by law.

In a number of analogous areas of common law doctrine, this Court has recently attempted to replace categories with concepts ^[F289] . Doing so promotes a more coherent and principled application and development of the common law. In the present case, the parties did not propose the adoption of a definition or of hard and fast criteria. That task must be left to the future. Instead, the Court was taken to the categories which have already achieved recognition in Australia (such as employer/employee ^[F290] ; hospital/patient ^[F291] ; school/pupil ^[F292] ; and possibly occupier/contractual entrant ^[F293] ). By analogy with these categories, and with cases involving extra hazardous activities on land ^[F294] , the Court was invited to push the boundaries of special duty further so as to include the relationship of landlord and tenant. At least in respect of landlords of residential property, and for the protection of the family and invitees of tenants, it was submitted that a special duty of care existed. It could not be discharged by delegating its performance, whether to an employee or to an individual independent contractor. The duty of the landlord in such cases was to ensure that the obligation was carried out.

In support of this submission (which was accepted by Fitzgerald P) the respondent relied on passages in this Court's reasons in Kondis v. State Transport Authority ^[F295] and Burnie Port Authority v. General Jones Pty Ltd ^[F296] . In Kondis ^[F297] , Mason J (with whom Deane and Dawson JJ agreed) started with the proposition in The Commonwealth v. Introvigne ^[F298] that "the law has, for various reasons imposed a special duty on persons in certain situations to take particular precautions for the safety of others". His Honour derived this principle from the categories which had previously been accepted ^[F299] :

"[T]he 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."

This formulation exhibits an element of circularity. It has not gone without criticism ^[F300] . On the other hand, earlier attempts to describe the boundaries of the duty of care have also involved circularity ^[F301] .

An attempt to develop the concept of non- delegable duty further was made in Burnie Port Authority ^[F302] . Mason CJ, Deane, Dawson, Toohey and Gaudron JJ remarked that the common element giving rise to the special responsibility could conveniently be referred to as "the central element of control" ^[F303] :

"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 ^[F304] . ...

He or she is specially vulnerable to danger if reasonable precautions are not taken in relation to what is done on the premises. He or she is specially dependent upon the person in control of the premises to ensure that such reasonable precautions are in fact taken. Commonly, he or she will have neither the right nor the opportunity to exercise control over, or even to have foreknowledge of, what is done or allowed by the other party within the premises."

The foundations of the principle were suggested to lie in fairness (ie to the vulnerable) and utility (ie for the avoidance of harm).

Arguments for expanding "special duties" to include landlords

In submitting that, by analogous reasoning, this Court should now accept a new category of landlord and tenant as giving rise to a "special duty of care", the respondent pointed to the following considerations of legal principle and legal policy:

1.

Within the principles stated in Kondis and Burnie Port Authority , the family of a tenant of residential premises would ordinarily be specially dependent on a landlord as the person in ultimate control of the premises. They would have only limited rights to exercise control over the premises themselves. In the present case, they had no right to effect significant repairs to the electrical wiring. In such matters, they were reliant on the landlord.

2.

The landlord was obliged by statute to maintain the premises "in a condition fit for human habitation" ^[F305] or "reasonably fit for human habitation" ^[F306] . Quite apart from the direct reliance upon legislation to give rise to a cause of action in favour of those within their protection (dealt with below) the respondent invoked the statutory obligations to give content to the common law duty of the landlord. Premises with inadequate and dangerous electrical wiring, liable to cause electric shock to a tenant, or the tenant's family and visitors, would not be "fit for human habitation" within the statutory requirements. Even if, on their proper analysis, the statutes were confined to affording contractual benefits to the tenants alone, such would not be the case in respect of the common law duty which would extend, at least, to the tenants' family residing with them.

3.

Extending the "special" duty of care to a landlord in this situation would have a number of practical advantages. Ordinarily, a landlord would be in a better position to obtain insurance. Such insurance would be a business cost of the letting. Because of the statutory obligations already imposed on landlords, it could be assumed that many, or most, would prudently have secured insurance. Insurance by contractors might be more problematical. Imposing a non- delegable duty on landlords would help to encourage high standards of care in the provision of rented premises, the choice of reliable contractors to inspect regularly the safety of the premises and speedy attention to complaints about faults having a potential to cause harm. Assigning a "special" duty of care to the landlord would also fix the obligations on a readily identifiable person, being the person with the ultimate control of the premises and their safety. It would acknowledge that, for some activities, such as electrical repair, the landlord would of necessity be obliged to rely on contractors. But it would protect tenants, as a generally vulnerable group, from inadequate or negligent performance by contractors of their duties. Although there is a need for low cost housing, the law should not condone the provision of such premises in an unsafe state. The commercial and contractual nature of the relationship ^[F307] should give rise, where necessary, to an obligation upon the landlord to carry the loss rather than to impose such a burden upon the more vulnerable tenant and the tenant's family and visitors.

There is force in these arguments. They derive a certain amount of support from judicial observations in other jurisdictions ^[F308] . However, care must be observed in the use of such decisions. They are usually much influenced by the particular problems before the courts and sometimes by local statutory requirements. Occasionally they have been affected by concessions, recorded in the reports, which, in turn, may have been influenced by local legislation ^[F309] .

Reasons for rejecting the "special duty" in this case

In my view this Court would not be warranted in creating a new category of "special" duty of care owed by landlords to tenants, in cases such as the present. My reasons are as follows:

1.

Despite the existence of various manifestations of "special" duties of care and non-delegable duties for 130 years, it has not hitherto been decided in this country that the landlord and tenant relationship, as such, is to be so classified. On the contrary, until quite recently, it would generally have been believed to be the common law in Australia that landlords were entitled to a large measure of immunity, afforded to them by such decisions as Cavalier v. Pope ^[F310] . In that case, the wife of a tenant fell through a defective kitchen floor in a dilapidated house. The landlord had expressly promised the tenant to repair the floor. He failed to carry out his promise ^[F311] . The tenant, in his own action, recovered damages for the cost of medical treatment of his wife. But the wife's action failed. It did so, apparently, upon two bases. The first was that the wife was not a party to the tenancy agreement. The second was that there was no general duty in law on the part of a landlord to take reasonable care to prevent injury to a tenant or other persons on the premises, occasioned by their defective condition. The House of Lords applied a longstanding rule that, fraud apart, the only remedy in such a case was possessed by the tenant and then only upon the contractual provision, if any ^[F312] .

It was therefore open to the appellant, in combating the suggestion of a "special" duty of care, to point out that, until recently, the common law, far from recognising such a "special" duty, appeared to recognise no duty at all. Indeed, it was not until 1985, in Parker v. South Australian Housing Trust ^[F313] that an Australian court of high authority held that the rule in Cavalier v. Pope was no longer part of the common law in this country. It is one thing for a court to hold (as was done in Parker ) that a landlord is liable in negligence for injury to a child burnt on a stove, whose defects had been called to notice but which remained unrepaired. It is quite a different thing to hold a landlord liable where it had attended promptly to a complaint and did so by the only means lawfully available to it, viz by the provision of a qualified electrical contractor. It is true that, occasionally, the common law takes bold steps when "layers of sediment which may have accumulated" need to be overcome ^[F314] . However, normally it moves forward by modest steps relying upon analogous reasoning ^[F315] . Although views may differ on the point, I would not regard the expansion of the law on non- delegable duties by the creation of a new category of landlord and tenant to be an incremental step ^[F316] . Against the background of the previous, long held understanding of the scope of the duties owed by landlords to their tenants at common law, and the wide diversity of landlord and tenant relationships that would be affected, such a step would not be within the limits of permissible judicial lawmaking. To advance from immunity to strict liability within so short a time and without warning would ordinarily require the sanction of legislation.

2.

In so far as Parliament had spoken on this subject, at least in the legislation specifically addressed to the sub-category of residential accommodation, the Residential Tenancies Act confined the duty imposed by it, in s 7, to the contract. It did this by including the landlord's statutory obligation "to provide and ... maintain the dwelling-house in good tenantable repair and in a condition fit for human habitation" within the specified "implied obligations" incorporated by the Residential Tenancies Act in a relevant tenancy agreement ^[F317] . It did so notwithstanding anything in the agreement. It held back from imposing, in terms, the kind of "special" duty of care now urged by the respondent.

3.

In respect of the tests expressed in the authority of this Court for the existence of a "non-delegable duty", the relationship between the appellant and the respondent does not readily fit within them. It is true that the respondent herself, as a young child, was vulnerable. She was in need of protection. But it would not normally be the landlord who would provide it. The "vulnerability" to which the legal test is addressed, in this context, relates to the relationship and not to particular individuals within it. Whereas, as a class, landlords might generally be in a better position than tenants, to carry the risk of unexpected harm in demised premises, this would not always be so. In commercial tenancies, the opposite might be the case. Specifying in a satisfactory way a sub-class of residential tenancies and then extending common law protection to all tenants within that sub-class, their families and visitors, presents significant challenges of definition. The appellant was not in actual occupation of the premises. Although it had a right, as landlord, to enter and inspect ^[F318] , generally speaking it lacked the entitlement to control, or even to know, what was done or allowed to be done within the premises ^[F319] . The tenant had a greater opportunity to observe and report defects. The appellant did not profess expert knowledge in the field in which the risk arose ^[F320] . Both by law, and as a matter of practicality, the task required skill and expertise. It was at once necessary and reasonable that the tenants, their family and visitors, should rely on the skill, knowledge and expertise of a qualified electrical contractor such as was engaged by the appellant ^[F321] . There was thus absent from this relationship the "central element of control" referred to in Burnie Port Authority ^[F322] . There was no special dependence or vulnerability in the relationship of the kind that exists in a hospital or school. It is true that electricity can be hazardous. However, its supply to a domestic dwelling does not ordinarily involve an element of extraordinary danger such as to attract the non-delegable duty. Within the formulations previously offered by this Court, there was no other feature of the case which pointed to the existence of a "special" duty, as distinct from the general duty of care which the appellant accepted.

4.

There are other reasons of legal policy or principle which tend to restrain the creation of a new sub-category of non-delegable duty in this case. I will assume that it would be possible to define, in a satisfactory way, a sub-species of the landlord and tenant relationship attracting the duty. I will further assume that the class to whom the duty was owed could be expressed with acceptable precision. However, the result would still be the introduction of a new burden on landlords which, on legal authority accepted until the recent past, they would not reasonably have anticipated. Such a burden would necessarily have a retrospective operation. Given the wide range of persons who constitute landlords of the proposed class, it could be anticipated that some would not be insured. Even those insured might find their cover limited to established liability, as under the Residential Tenancies Act . This Court has no way of estimating the economic consequences of inventing a new category of "special" duty. Nevertheless such consequences would clearly include the potential costs of imposing new duties of inspection; of withdrawing some low cost accommodation from the market; and of obtaining liability insurance to meet the relatively rare case that the insurance of a qualified contractor, engaged by the landlord, proved insufficient for the peculiar risk in a particular case. As one writer has pointed out ^[F323] :

"Indiscriminate extension of non- delegable duties can lead to the wastefulness of circuity of action and double insurance, and hardship for those employers of independent contractors who are not substantial enterprises or not in a strategic position to insure against the cost of accidents."

5.

An occupier's duty has been stated by this Court ordinarily to be "to take reasonable care to avoid a foreseeable risk of injury" ^[F324] . It would be anomalous to hold a landlord, even of a residential tenancy, liable at common law to discharge personally a special duty to the tenant (and the tenant's family and visitors) although not actually in occupation. It would be even more anomalous to fix the landlord with liability in negligence where it is found that the landlord responded to a signified risk in the precise way that a reasonable person would do in the circumstances. Although no decision of this Court determines the point, it is obviously relevant to remember what Mason J said in Kondis ^[F325] :

"[T]here is a stronger case for concluding that the employer's duty is non-delegable than there is for reaching the same conclusion in the case of the invitor. It is not immediately obvious that it is appropriate to impose liability on the occupier of a house for injury caused to an invitee by the negligence of an independent contractor, eg, in making or repairing an electrical installation carelessly, when it is reasonable for the occupier to rely on the reputed competence of the contractor in a field in which the occupier has no expert knowledge."

The foregoing remarks were obiter. But they suggest that, special undertakings aside ^[F326] , a landlord ordinarily lacks the "central element of control" of the situation of risk which is a pre-condition to the imposition of a non-delegable duty. Responding to the influx of populations from rural England to towns where rental premises had to be found, the common law might have developed in such a way. In fact, it adopted precisely the opposite approach. It must be left to statute, not the courts, to effect a change so radical as from the previous immunity to absolute liability.

6.

One further point should be mentioned in disposing of the claim at common law. Brennan CJ and Gaudron J have concluded that the landlord was obliged by the common law to see that the premises at the time the tenants went into possession were as safe for habitation as reasonable care and skill on the part of anyone could make them, excluding only defects which were not reasonably discoverable. This is not the basis upon which the trial judge or any judge of the Court of Appeal dealt with the matter. Indeed, there was no finding that the major earth wire had become disconnected before the family went into possession ^[F327] . Further, the trial judge found that it had not been proved that the landlord, as a lay person and not an expert, knew or ought to have known of anything which, in prudence, required an inspection. Upon this approach, the fundamental question remains. Is the landlord's duty, in effect, that of an insurer of the tenants or does it discharge its obligation of reasonable care and skill, in respect of possible electrical defects, in the only way reasonably and lawfully available to it? And the only way that a reasonable landlord in this country would ordinarily act? This is by engaging a licensed electrical contractor. Whether presented as a duty arising out of, and implied into, the contract of lease or as a duty owed by the tort of negligence, the question remains the same. Unless there is a contractual obligation imposing a duty higher than reasonable care, or unless the relationship is now to be assigned, for the first time to the categories of "non delegable duties", the landlord must be excused from liability if it engages a suitably qualified electrical contractor. Not only did the appellant do so here. There was no other way it could lawfully have performed its obligations. If the standard is one of reasonable care, the landlord in this case met that standard.

The respondent's claim at common law was correctly dismissed by the primary judge and by the majority of the Court of Appeal.

Claims under legislation: the statutory provisions

The respondent, alternatively, sought to sustain her judgment based upon the provisions of Queensland legislation imposing certain duties upon landlords in that State. The position is complicated by the fact that two statutes were in operation at the relevant time, although one of them has since been repealed ^[F328] . The respondent relied principally upon s 106(1) of the Property Law Act 1974 (Q). That sub-section states, relevantly:

"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."

The sub-section appears under the heading "Obligations in Short Leases". It contains, in par (b), obligations on the part of the lessee "to care for the premises in the manner of a reasonable tenant" and "to repair damage caused by [the lessee] or by persons coming on the premises with [the lessee's] permission". By s 106(2) the section applies to leases made after the commencement of the Act and "notwithstanding any other provision of this Act or any agreement to the contrary".

The respondent also relied on a cause of action said to arise by virtue of s 7 of the Residential Tenancies Act 1975 (Q). Relevantly, the respondent relied on s 7(a)(ii) and (iii):

"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 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;

..."

Section 7(b) of the Residential Tenancies Act contains a number of implied obligations on the part of the tenant. These include to care for the dwelling-house "and fixtures, fittings, goods and chattels let therewith in the manner of a reasonable tenant" and to repair damage "caused by the wilful or negligent conduct of the tenant or persons coming into or upon the dwelling-house with his consent" ^[F329] . But there are added, in the case both of the landlord and of the tenant, other obligations which find no equivalent in s 106 of the Property Law Act .

It will be observed that the obligations implied by s 7 of the Residential Tenancies Act attach to "every tenancy agreement". A "tenancy agreement" is defined by s 6 of that Act to mean "an agreement between a landlord and tenant for the letting of a dwelling- house". The words "dwelling-house" are defined to mean "premises let for the purpose or principally for the purpose of residence". Certain places are expressly included (such as units or parts of multiple houses). Other places are expressly excluded (such as licensed premises or clubs, premises ordinarily let for holiday purposes, and premises for which the tenant is a mortgagor or purchaser under a contract for sale) ^[F330] . An attempt is made in s 5 of the Residential Tenancies Act to clarify its relationship to the Property Law Act enacted in the preceding year:

"5. (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."

One further provision of a general character, which appears in the Property Law Act must be noted. In s 55 provision is made to overcome the common law rule that "only a party to a contract can sue on it and consideration must move from the promisee" to give rise to enforcement ^[F331] . The section is one of a series belatedly enacted in a number of jurisdictions to respond to repeated criticism of the rules of privity of contract ^[F332] . The pertinent provisions of s 55 appear in the reasons of Brennan CJ so I will not repeat them, except to notice additionally the terms of sub-ss (3) and 6(a):

(3)

Upon acceptance -

(a)

the beneficiary shall be entitled in his own name to such remedies and relief as may be just and convenient for the enforcement of the duty of the promisor; and relief ... shall not be refused solely on the ground that, as against the promisor, the beneficiary may be a volunteer;

(b)

the beneficiary shall be bound by the promise and subject to a duty enforceable against him in his own name to do or refrain from doing such act or acts (if any) as may by the terms of the promise be required of him;

...

(6)

In this section -

(a)

'acceptance' means an assent by words or conduct communicated by or on behalf of the beneficiary to the promisor, or to some person authorized on his behalf, in the manner (if any), and within the time, specified in the promise or, if no time is specified, within a reasonable time of the promise coming to the notice of the beneficiary;

...

The statutory claims - issues

Against the background of the foregoing statutory provisions the following issues are raised:

1.

Did the Property Law Act apply to the lease entered between the appellant and the tenants or did the Residential Tenancies Act apply to the exclusion of the Property Law Act?

2.

If the Residential Tenancies Act alone applied, are the terms of s 7 of that Act such as to give rise to a cause of action enforceable for the breach or merely an action for breach of the terms of the contract of lease implied by the section?

3.

May the respondent (as a stranger to the contract of lease) recover from the appellant (as landlord) for the damage which she suffered by reason of a breach of the obligations implied by the Residential Tenancies Act or, by the common law and the language of that Act, may the tenants alone recover for any breach of such implied obligations?

4.

If upon its true construction, in the case of a breach, s 7(a) of the Residential Tenancies Act gives rise to remedies only in the tenants, may the respondent, as beneficiary of the promises implied into the tenancy agreement by that Act, obtain relief pursuant to s 55 of the Property Law Act ?

5.

If the respondent may enforce the obligations implied into the lease by the Residential Tenancies Act , is the duty of the landlord limited to attending to conditions of which it has reasonable notice? Is its duty limited to one of reasonable care or is it absolutely liable by virtue of the Residential Tenancies Act ?

The answers to none of these questions can be given dogmatically. The overlap of the legislation, at the relevant time, creates an element of confusion which is not wholly relieved by examination either of the Law Reform Commission report which preceded the Acts ^[F333] or the Parliamentary debates ^[F334] which accompanied the enactment of the overlapping provisions ^[F335] . Furthermore, the language and intended operation of the legislation is not entirely clear on its face. The applicable tests for deriving the legislative purpose are typically stated in very broad terms. In such circumstances, it is unsurprising that there have been divisions of judicial opinion which now persist in this Court. The overriding duty of the Court is to give effect to the purpose of the Queensland Parliament. Unfortunately, that purpose is not entirely clear.

Overlapping legislation: the applicable statute?

I acknowledge that there are arguments to support the suggestion that, notwithstanding the passage of the Residential Tenancies Act, the Property Law Act also applied to the demised premises ^[F336] . It is not as if Parliament overlooked the parallel legislation. Following the recommendation of the Queensland Law Reform Commission ^[F337] the coming into force of the Property Law Act was deferred until 1 December 1975 ^[F338] so that amendments could be incorporated into that Act by the Property Law Act Amendment Act 1975 (Q). One of those amendments was the substitution of s 106(1)(a) in the Property Law Act in the terms stated, confining its application to premises let for human habitation. Originally the sub-section had extended to three year leases of all kinds. The Residential Tenancies Act was passed soon thereafter. The interrelationship of the two Acts was foreshadowed by s 5(1) of the later statute. This was not, therefore, a case of legislative oversight.

There are two variations between the relevant obligations imposed respectively by s 106(1)(a) of the Property Law Act and s 7(a)(ii) of the Residential Tenancies Act relating to the fitness of premises for human habitation. The former Act requires that the conditions be "reasonably" fit for human habitation. The latter Act deleted the word "reasonably". More importantly, whereas s 7 of the Residential Tenancies Act operated, in terms, to imply the stated obligations into "every tenancy agreement", this is not the technique apparently used in s 106 of the Property Law Act. It simply states that there is "an obligation ... on the part of the lessor ... to provide and maintain the premises ... in a condition reasonably fit for human habitation". It was this difference which attracted McPherson JA to the application of s 106 of the Property Law Act in this case. By imposing a direct obligation on the lessor, that Act gave rise, in his Honour's opinion, to a cause of action in any person whom that obligation was intended to benefit. This avoided the problems of privity of contract which would arise for any attempt by the respondent to enforce the implied obligations incorporated in the tenancy agreement with her parents by virtue of s 7 of the Residential Tenancies Act .

Whilst it is possible to argue that the two Acts were intended each to operate upon a single lease, such as the informal agreement between the appellant and the tenants, the better view is that where the particular provisions of the Residential Tenancies Act applied to the lease of a dwelling-house, its special requirements attached to the exclusion of the Property Law Act. In this conclusion I agree with the preferred interpretation of Fitzgerald P ^[F339] and Pincus JA ^[F340] in the Court of Appeal.

My opinion rests, in part, upon the difficulty of accepting that the Queensland Parliament would have had the purpose of imposing upon landlords and tenants two similar, but not identical, regimes of legal regulation. Ordinarily, where a special statute is enacted to deal with a particular sub-species of a legal problem, a general statute dealing with the ordinary incidents of the species will, to the necessary extent, be excluded or modified in order to give effect to Parliament's presumed particular purpose. By enacting a particular regime for tenancies of dwelling-houses, it seems more likely that Parliament intended that regime to apply conceding that there would be some other premises, also used for human habitation, which were the subject of leases and which were not "dwelling-houses" as so defined. Only to the latter would s 106 of the Property Law Act apply, at least so long as there was competition between the general provisions of the Property Law Act and the special provisions of the Residential Tenancies Act, enacted later. This conclusion makes it impossible to sustain the basis upon which, ultimately, McPherson JA supported his judgment in favour of the respondent.

A statutory cause of action

There remains the alternative argument based on s 7(a)(ii) of the Residential Tenancies Act . It was submitted that this provision did not give rise to a cause of action in favour of the respondent for breach of the implied terms to "provide and ... maintain the dwelling-house ... in a condition fit for human habitation". The primary argument was that the statutory provision in question was not of the kind which could be said to afford a foundation for a civil action for damages for the breach. Determining whether a statutory provision gives rise to a civil action for the breach is usually a matter of controversy because Parliament does not ordinarily state its intention in this regard ^[F341] . It is left to courts, examining the language and apparent purpose of the legislation, to attribute to the lawmakers whether or not it was their purpose to provide for civil liability for breach of the provision in question. Appeals to legislatures to make their intention in this respect more plain have fallen on deaf ears ^[F342] . So it is in the case of s 7 of the Residential Tenancies Act . Because reference to the ultimate obligation to define the intention and purpose the legislation tends to state, rather than solve, the problem, resort has been had to various presumptions and policy considerations in order to discern the answer to the question upon which the legislators remained resolutely silent. Factors which weigh in my mind as suggesting that s 7 of the Residential Tenancies Act was intended to give rise to civil liability for the breach include the apparent reformatory objectives of the Act; the particularity of the provisions implied into tenancy agreements by the Act; the provision that the implied obligations will operate "[n]otwithstanding any agreement between a landlord and tenant" to the contrary; the apparent purpose to protect tenants, as a class, from the rental of premises "in a condition [not] fit for human habitation" and the need, in modern circumstances, to rely upon individuals, rather than the State, to uphold such standards ^[F343] . In this last respect, it is useful to recall the observations of Cardozo J, then in the Court of Appeals of New York, in Altz v. Leiberson ^[F344] :

"We may be sure that the framers of this statute, when regulating tenement life, had uppermost in thought the care of those who are unable to care for themselves. The Legislature must have known that unless repairs in the rooms of the poor were made by the landlord, they would not be made by any one. The duty imposed became commensurate with the need. The right to seek redress is not limited to the city or its officers. The right extends to all whom there was a purpose to protect."

Since those words were written in 1922, there has been a diminution in parliamentary reliance upon public officers to enforce provisions such as those in s 7 of the Residential Tenancies Act . It should not be inferred that such protective provisions were enacted as pious solecisms. Cardozo J in Altz v. Leiberson ^[F345] also remarked that "[n]o doubt the defect itself must be one that has relation to the maintenance of the building as a tenantable habitation". To like effect, the obligation implied by s 7(a)(ii) would give rise to a right of action only in those cases encompassed by the landlord's obligation to provide and maintain the dwelling-house "in a condition fit for human habitation". Relevantly, this would extend to the inhabitants intended to occupy, ie inhabit, the premises. It would therefore include, at least, the tenants and their family. Whether it would extend further to visitors and other "persons coming into or upon the dwelling-house with [the tenant's] consent" ^[F346] need not be answered in this case. But it is necessarily implied in a statutory obligation to provide and maintain premises "in a condition fit for human habitation" that the beneficiaries of that requirement will be those humans who ordinarily inhabit the premises. Because the premises are residential dwelling-houses as defined, it requires no imagination to conclude that Parliament's purpose in enacting s 7(a)(ii) of the Residential Tenancies Act, was to protect and benefit a person such as the respondent, being a member of the tenants' family.

Tenancy agreements and the rule of privity

This conclusion raises the appellant's argument that, upon its true construction, s 7 of the Residential Tenancies Act afforded no legally enforceable advantage to a third party such as the respondent but only to the tenants themselves. In support of this argument it was pointed out that, in terms, s 7 did no more than to modify the "agreement between a landlord and tenant". It did not, as other legislation did, impose obligations directly upon the landlord or the tenant ^[F347] . Instead, it effected a legislative purpose solely to modify the parties' agreement. Having acted in this way, when an alternative legislative technique was available, the Residential Tenancies Act should be construed as accepting the ordinary principles of privity of contract. Various possibilities were raised during argument to show that the apparent harshness of this proposition could have been circumvented by procedural steps open to the respondent ^[F348] .

The real task of the Court is to discover the purpose of the Queensland Parliament in enacting s 7(a)(ii) of the Residential Tenancies Act . Upon the argument of the appellant, if either of the nominated tenants had grasped the live tap and suffered electric shock, they could have sued for breach of the implied obligation of fitness for human habitation for it was in the contract of lease to which they were parties. But because it was their daughter who did so, she was outside the protection which Parliament had enacted. This would be a curious consequence, especially in the context of a protective provision designed to ensure the fitness for "human habitation" of residential dwelling-houses in which, typically, tenants and their families live. Such an odd differentiation of protection would not readily be imputed to Parliament.

Similar problems have arisen in Canada where tenants and members of their family have been injured. They have sued relying upon legislation equivalent to the Residential Tenancies Act 1975 (Q). Thus in Gaul v. King ^[F349] , the Appeal Division of the Nova Scotia Supreme Court had to decide whether the provisions of the Residential Tenancies Act 1970 (NSW) gave rise to a cause of action and, if so, who was within the scope of the protection. Jones JA, delivering the judgment of the Court, stated ^[F350] :

"[I] have no difficulty in concluding that the Residential Tenancies Act gives rise to a right of action. That is the clear trend of the cases in the United States and Canada. In England prior to the enactment of the Occupiers Liability Act, I957 (UK), c. 31, the trend was similar, subject to the requirements of notice. ...

While the duty under s 6 of the Act is imposed as a condition of the agreement I am of the view that the right of recovery is not restricted to contract. The Ontario Act appears to be somewhat wider. 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."

Jones JA held that the tenant and members of his household were within the class of persons intended to be protected by the statute and that the landlord owed a duty to them.

This reasoning, on legislation not in my view relevantly different from the Residential Tenancies Act 1975 (Q), has been repeatedly followed in Canada. It was applied by the Appeal Division of the Nova Scotia Supreme Court in Basset Realty Ltd v. Lindstrom ^[F351] . In that case, the local statute contained, as statutory condition ("stat con") 1, the landlord's duty to "keep the premises in a good state of repair and fit for habitation". The similarity of the legislation is therefore obvious. In Zavaglia v. Maq Holdings Ltd ^[F352] , the primary judge accepted that Basset Realty established, within Canada that, "breach of stat. con. 1 of s 6(1) of the Residential Tenancies Act, 1970 (NS) c 13, gives rise to a tort action in favour of the tenant and members of his family" ^[F353] . He held that the right of action did not extend to "visitors and friends of the tenant" ^[F354] . This decision was affirmed by the Court of Appeal of British Columbia ^[F355] . Nothing was said to cast doubt upon the holdings in Gaul or Basset Realty or the dicta extending the right of action on the statute to members of the tenant's immediate family.

Although the point can be argued both ways, I prefer the approach adopted in the Canadian decisions. The Queensland legislation is not relevantly different. The social purpose of the legislation is the same. So far as residential premises are concerned, that purpose is to ensure the fitness for human habitation of those who ordinarily reside in such premises. Only this construction avoids the offensive result that the tenants might invoke the Parliamentary guarantee of fitness for human habitation but not the members of their immediate family living with them in the demised premises let for their "habitation."

Statutory modification of the privity rule

There is an alternative route to the same conclusion. It invokes the terms of s 55 of the Property Law Act set out above. In order to understand the purposes of that section, and the common law principles which it was intended to modify, it is necessary to look no further than the decision of this Court in Trident General Insurance Co Ltd v. McNiece Bros Pty Ltd ^[F356] . The section should be given effect to achieve the objectives of the Queensland Parliament in enacting it.

The appellant raised two objections to the respondent's reliance upon the section. The first was that it had not been relied upon at the trial. However, this is not a case where any relevant facts or interrogation of the respondent would have altered the position of the parties ^[F357] . It was not suggested that the respondent specifically assented by words, addressed to the appellant, so as to accept the benefit of the contract between her parents (as tenants) and the appellant (as landlord). The only "conduct" within s 55(6)(a) of the Property Law Act relied upon by the respondent as constituting her "acceptance" was her conduct in accompanying her parents to occupation of the demised premises. As that conduct was not, and could not be, disputed, no procedural unfairness arises in permitting the respondent to raise s 55 of the Property Law Act after the trial.

The appellant accepted that s 55 was a law of general application. In its terms, it operated upon the promises made by the informal tenancy agreement reached between the parties. Its suggested inapplicability was said to be demonstrated by the unlikelihood that a "beneficiary" such as the respondent could be within the class intended to be "bound by the promise and subject to a duty enforceable against [her] in [her] own name" ^[F358] . A distinction must be drawn between the legal rights and obligations of an infant such as the respondent and the enforcement of such rights and obligations. But where, as here, the tenancy agreement between the appellant and the respondent's parents as tenants was obviously for her benefit, the purpose of s 55 of the Property Law Act extended to securing to her the entitlement to enforce the duties owed by the landlord to her parents as tenants. All that was required was her "acceptance" of her status as a beneficiary. By the Property Law Act , she could do this by "conduct" communicated to the landlord. The landlord knew that she had entered into possession of the demised premises with her parents. By s 55 of the Property Law Act , the difficulties of her enforcement of the obligations owed by the landlord to her parents as tenants were therefore overcome.

If the Residential Tenancies Act alone did not have that consequence (as I am inclined to think it did) the combination of the implied terms of the tenancy agreement and s 55 of the Property Law Act achieved the same result. The respondent was entitled to enforce the benefit of the implied term of the tenancy agreement that the landlord would provide and maintain the premises "in a condition fit for human habitation".

Requirement of "a condition fit for human habitation"

The respondent argued that premises which were subject to the electrification of garden taps, liable to occasion profound electric shock, were not "in a condition fit for human habitation". But two possible impediments to recovery remain. The first was not raised by the appellant but was noted by McPherson JA in the Court of Appeal.

In England, the obligation imposed by legislative provisions similar to those in the Residential Tenancies Act has been given a construction by which the implied obligation that a dwelling-house should be kept reasonably fit for human habitation is subject to an implied term that the obligation on the landlord to repair any defect did not arise until the landlord had been given notice of it ^[F359] . The House of Lords acknowledged the criticism of this holding. However, their Lordships felt constrained to apply it because the provision had been re- enacted in England in the same form after a decision of the English Court of Appeal to that effect ^[F360] . This is the reference to "the requirement of notice" mentioned by Jones JA in Gaul v. King ^[F361] , cited above. This Court is not bound by the English authority. Whilst great respect will be paid to it, because of the lineage of the local legislation, the decisions must be weighed on their merits. An earlier opinion in England to the contrary effect ^[F362] appears to have been overlooked. The English authority has been criticised ^[F363] . The consideration of the re-enactment of the legislation in identical terms after an authoritative opinion (for whatever that is worth) does not apply in the case of the Residential Tenancies Act . It is safer to construe that Act in the terms in which it passed through Parliament. It would have been easy for Parliament to have included, as an exemption from liability, a proviso excusing the landlord from defects of which it had not been given notice. No such provision appears. The legislation is clearly definitive of rights and obligations and generally protective. I therefore see no reason why this Court should read such a proviso into the plain words of the Residential Tenancies Act . The duty is to provide and maintain premises "in a condition fit for human habitation". It is that duty which must be fulfilled. Importing a requirement to give notice, as a pre-condition to the imposition of the liability, is not warranted by the language or purpose of the Residential Tenancies Act .

The landlord's statutory duty is not absolute

That leaves the final question. Is the duty so imposed subject to a limitation of reasonableness? If so, the landlord's liability is not absolute but is restricted to ensuring that the condition of the premises is fit for human habitation to the extent that it is reasonable to expect of a landlord of such premises. It is this question which has given me the greatest difficulty. Upon the answer to it depends, in the approach which I favour, the outcome of the appeal.

There are arguments which support the respondent's proposition that the obligation is an absolute one. They include the apparently unqualified and objective expression "fit for human habitation"; the absence, in the case of the Residential Tenancies Act, of the word "reasonably" appearing in s 106 of the Property Law Act ; the protective purpose of the provision in the context of dwelling-houses; and the argument of policy that the imposition of an absolute duty is the only effective way of ensuring that the purpose of avoiding the provision of dwelling-houses unfit for human habitation.

However, I am driven to the opposite conclusion by a number of considerations which I regard as much stronger.

1.

The context of the imposition of an obligation to provide and maintain the dwelling-house "in a condition fit for human habitation" cannot be entirely ignored. It is by the introduction of an implied obligation into an agreement written between the landlord and the tenant which exists against the background of the common law. If the obligation of fitness for human habitation were intended to be absolute, so as to convert the landlord's former immunity to absolute liability, it might have been expected that Parliament would have prescribed in greater detail the content of that obligation. Because, by s 7(a)(i), the landlord is obliged to allow the tenant during the tenancy quiet enjoyment, the obligation to ensure fitness for human habitation must be one which is given content in circumstances where the landlord will often, or usually, be out of occupation.

2.

This conclusion is reinforced by the other obligations implied by statute. None of them appears suitable to attract absolute duties. What is in question is not the qualification of the fitness for human habitation by what is "reasonable" but the modification of the governing words "provide and maintain" to the extent that is reasonable. In the context, and having regard to the other obligations imposed both on the landlord and on the tenant, it appears more likely that Parliament was imposing obligations which could reasonably be fulfilled rather than obligations exposing landlord and tenant alike to absolute duties.

3.

The Canadian authority which accepts that the legislation equivalent to the Residential Tenancies Act gives rise to a statutory cause of action to extend to protect members of the tenant's immediate family has uniformly been construed as imposing a general duty of reasonable care, not an absolute duty. Thus in Gaul v. King ^[F364] , Jones JA, delivering the decision of the Appeal Division of the Nova Scotia Supreme Court said:

"While it can be argued that the mandatory language of the Act does impose strict liability, I think the appropriate test to apply under our Residential Tenancies Act is the common duty of care. I do not think that the Legislature intended to impose liability without proving lack of care or diligence on the part of the person on whom the duty is imposed. In my opinion the landlord has a duty to see that the premises are as safe as reasonable care and skill can make them. This is not an absolute liability and does not cover defects, such as latent defects, which could not be discovered by the exercise of reasonable care and skill. As the landlord is responsible under the Act to keep the premises in good repair he will be liable for defects which are discoverable by the exercise of reasonable care and skill.

In concluding that the appropriate standard is reasonable care, I concur with the view expressed by the Ontario Court of Appeal in McQuestion that an interpretation of strict liability would place too heavy a burden on the lessor. ... I think the test of reasonable care is the one which is most consistent with the provisions of our Act. ... This will not impose an undue hardship on the landlord and will afford a reasonable measure of protection to the tenant."

The same conclusion was reached by a Court of five judges in Basset Realty Ltd v. Lindstrom ^[F365] . It is supported by other Canadian authority ^[F366] . It is also supported by attributing to the Queensland Parliament the adoption of a standard of reasonableness in what it expects of landlords. Had it been intended to impose upon landlords a strict and absolute liability, as of an insurer, this would have been done in a provision differently written, supported by different background documentation and by Parliamentary speeches justifying such a substantial enlargement of landlords' obligations and liabilities.

The appellant, as landlord, was therefore liable, including to the respondent, to provide and maintain the premises in a condition fit for human habitation. But this did not impose upon it an obligation to do something of which it was reasonably unaware. That the appellant was reasonably unaware of the precise defect in the wiring of its premises is plain from the evidence. No hint of any defect had been given when the premises were initially checked by the Board or when electricity supply was restored. Nor was there any indication of a defect when the appellant engaged an expert licensed electrician to attend to the complaint about the element of the stove. That complaint of itself was not one which would reasonably have put the appellant, as landlord, on notice of any risk that the wiring system was defective. There was nothing in it to alert the landlord to a danger that a domestic tap would become a hazardous conductor of electricity. In every other way the premises provided by the appellant were fit for human habitation. The appellant therefore complied with the implied obligation imported into its tenancy agreement with the tenants. Its failure to anticipate and to prevent the latent defect in the wiring system did not constitute a breach of the implied condition. Put another way, if the premises were, at the relevant time, not fit for human habitation, that was not by reason of any breach on the part of the landlord of the obligation, implied by the Residential Tenancies Act, to provide and maintain the premises in the condition required. It was the consequence of the electrician's negligence and defects in the wiring system of which neither the landlord nor the tenant had any notice.

Conclusion: no liability-claim dismissed

The result is that the respondent cannot sustain the judgment favoured by the majority of the Court of Appeal whether on the basis of the common law or upon either of the statutes relied upon.

It was a term of the grant of special leave that the appellant should pay the respondent's costs in this Court whatever its outcome. Upon the return of the appeal, the appellant informed the Court that it did not seek its costs of the action at first instance or in the Court of Appeal.

The appeal should be allowed. The orders of the Court of Appeal of the Supreme Court of Queensland should be set aside. In lieu thereof this Court should order that the appeal to the Court of Appeal be dismissed save for the deletion from the orders of Derrington J, dated 1 June 1994, of the words "with costs, including reserved costs, if any, to be taxed" in respect of the order dismissing the plaintiff's action against the third defendant. The appellant should pay the respondent's costs of the appeal to this Court.