Deborah Kerin v The Commissioner for Housing in the Act
[2006] ACTRTT 9
•22 March 2006
Deborah Kerin v The Commissioner for Housing in the ACT [2006] ACTRTT 9
(22 March 2006)
CATCHWORDS
Application for Summary Dismissal - Uninhabitable premises - Premises not reasonably clean – Urgent repairs – Available remedies - Compensation
LEGISLATION
Residential Tenancies Act 1997 (ACT)
Sections 104(b), 104(c) and 104(m)
Clauses 54(1) (a), 54(1) (b) and 60(l) Standard Residential Terms
CASE LAW
Re Newell [2003] ACTSC 31
Worrall v Commissioner for Housing for the ACT [2002] FCAFC 127
Lazar v Williamson (1886) 7 LR (NSW) 98
Susan Margaret Day v Silva Agneza Cengic [2004] ACTSC 33
Tapoohi v Lewenberg & Ors (No 2) [2003] VSC 410
ACT Housing v Brampton [1999] ACTRTT 19
Lazar v Williamson (1896) 7 LR (NSW) 98
Lam v Lu (NSW RTT 90/008960
Greenhill v Commissioner for Housing for the ACT [2003] ACTRTT
Kiternas v Watts [2006] ACTRTT 4
Summers v Salford Corporation [1943] AC 283
Beeby v Department of Housing NSW RTT 96/030478
Novakovic v Douglass NSW RTT 98/26805
Case Reference Number: RTT 05/1664
Re: Premises at 22 Jerilderie Court, Reid, ACT 2608
Decision
1That the application by ACT Housing for summary dismissal or summary judgment should be dismissed, except that relating to the Applicant’s claim under Clause 54(1)(b) Standard Residential Term.
2The matter is to be set down for further hearing before the Tribunal as soon a practicable in relation to the Applicant’s claims under Clauses 54(1)(a) and 60(l) of the Standard Residential Terms.
Member: J. A. David
Date: 22 March 2006
STATEMENT OF REASONS
BACKGROUND
2The Applicant tenant (Applicant) moved into the premises at 22 Jerilderie Court, Reid, in May 1999 under a Residential Tenancy Agreement with the Respondent lessor, The Commissioner for Housing in the Act (ACT Housing).
3The matter came before the Tribunal on 18 November 2005 when it was adjourned for the tenant to organise an expert report to identify and analyse the substance coating the interior surfaces within 28 days.
4The matter came before the Tribunal again on 20 January 2006 when the Applicant was directed to provide particulars of the precise conditions and/or circumstances within the Respondent’s responsibilities under the tenancy agreement that the Applicant alleged caused her pleaded symptoms and/or medical condition. The matter was set down for hearing on 8 February 2006 as the particulars had only been provided to ACT Housing on 18 January 2006.
5At the hearing on 20 January 2006 the Applicant was given leave to amend the Statement of Particulars in the Application (which had been filled in by the Applicant in person). In her Submission and Statement of Particulars filed on 29 January 2006 she sought the following orders:
i.A declaration that the Respondent is in breach of the residential tenancy agreement.
ii.An order under section 104(b) of the Residential Tenancies Act 1997 (the Act) requiring ACT Housing to rectify the premises: and thereby properly perform the residential tenancy agreement by –
(a) Installing insulation in the walls and under the floor of the unit;
(b) Replacing the carpet in the unit;
(c) Replacing the curtains in the unit;
(d) Thoroughly cleaning the unit with anti-mould agents; and
(e) Thoroughly paint the unit with anti-mould paint.
iii. An order under section 104(d) of the Act requiring the respondent to pay compensation to the Applicant comprised as follows:
(a) The cost to the Applicant of relocating to other premises whilst the rectification work referred to in paragraph 4 (ii) above is carried out to the premises;
(b) The cost to the Applicant of all tests associated with these proceedings; and
(c) The cost to the Applicant of all medical investigations and treatments required as a result of the health problems suffered by virtue of the respondent’s breach of the tenancy agreement.
6At the hearing on 20 January 2006 the Applicant alleged ACT Housing breached it’s duty under the tenancy agreement and the Standard Residential Terms to:
i.Carry out urgent repairs under Standard Residential Term Clause 60(l) in that it has not undertaken urgent repairs as soon as necessary to “a fault or damage likely to cause injury to person ..”; and
ii.Ensure at the start of the tenancy that the promises were fit for habitation and reasonably clean under Standard Residential Terms 54(1)(a) and (b).
7In written submissions dated 29 January 2006, the Applicant submitted that the premises are not fit for habitation and are not reasonably clean because there is an excessive concentration of mould spores and/or nicotine residue through excessive cigarette consumption and/or excessively high concentration of exhaust and diesel soot in the premises. She claimed the unit was not fit for habitation at the commencement of the tenancy (what appeared to be “dirt” on the carpet noted in the Condition Report was not remedied by steam cleaning, nor did the replacement of the carpet in 2001 alleviate the problem). She further claimed that the excessive concentrations have caused her to suffer the following health problems:
i.Skin irritation and itching
ii.Aggravation of pre-existing nasal problems
iii.Aggravation of pre-existing sinus problems
iv.Sore throat
v.Hoarse voice
vi.Irritation of eyes
vii.Corneal ulcers
viii.Reduced vision in right eye
ix.Loose motions/abdominal pain, and
x.Stress and anxiety.
8 ACT Housing denied the allegations and, at the commencement of the hearing on 8 February 2006, sought a summary dismissal of the Tenant’s claim and/or summary judgment for the Respondent (ACT Housing) on the grounds there was no basis in law or insufficient evidence to support the Applicant’s claim. The following is a summary of ACT Housing’s submissions in support of the application –
Clause 54(1)(a) & (b) Habitable and reasonably clean
i.Clause 54(1)(a) imposes a duty on a Lessor to ensure the premises are habitable at the start of the tenancy. The Applicant would need to prove that it was the condition of the premises at the commencement of the tenancy in May 1999 that caused her claimed symptoms.
ii.The House of Lords held in Summers v Salford Corporation [1943] AC 283, that the test of uninhabitability is an objective one, that of the “ordinary user/tenant”:
“If the state of repair of a house is such that by ordinary user damage may naturally be caused to the occupier either in respect of personal injury to limb or injury to health, then the house is not in all respects fit for human habitation.”
ACT Housing submitted there is no allegation by the Applicant that the premises would be uninhabitable for an ordinary user/tenant.
iii.The Tenant’s only remedy for any breach by ACT Housing of it’s duty under Clause 54(1)(a) (if established) is under Clauses 86 and 86 of the Standard Residential Terms: to terminate the tenancy and seek a rental rebate for the period of uninhabitability.
iv.The Tribunal has no jurisdiction to order ACT Housing to relocate a tenant.
v.If the Tribunal finds the premises were reasonably clean at the commencement of the tenancy, ACT Housing has fulfilled it’s obligation under Clause 54(1)(b); the obligation thereafter is on the tenant to keep the premises reasonably clean under Clause 63(c) of the Standard Residential Terms, including the Applicant’s own bed clothes and curtains which ACT Housing submitted are the source of the majority of the alleged problem.
Clause 60(l) Urgent repairs
vi.ACT Housing submitted that the obligation to undertake urgent repairs under Clause 60(l) of the Standard Residential Terms does not extend to changing the nature of the premises or to making structural improvements. Following the decision by the ACT Supreme Court in Re Newell [2003] ACTSC 31 the meaning of “repairs” is as set out in the Shorter Oxford Dictionary: that is, the restoration of the relevant thing to “good condition by renewal or replacement of decayed or damaged parts or by refixing what has given way; to mend”.
vii.The repairs suggested by the Tenant (installing insulation and replacing carpet) are not such repairs but are in the nature of improvements to the premises. Installing insulation in the floor and walls may not be a repair but to overcome a design shortcoming. The cleaning of the curtains is not a repair as the curtains are the Applicant’s own curtains. The cleaning of carpet in the premises is \not such a repair: it is the tenant’s responsibility under Clause 63(c) of the Standard Residential Terms.
viii.ACT Housing also submitted that the repairs sought by the Applicant are not urgent within the meaning of urgent repairs in Clause 60(l) of the Standard Residential Terms.
ix.In the past, ACT Housing has twice offered to paint the unit with anti-mound paint and to clean the unit; however, the Applicant prevented this occurring. ACT Housing remains ready to carry out the repairs recommended in the Robson Laboratories Report.
x.The Tribunal has no jurisdiction to order ACT Housing to relocate a tenant.
xi.Dr Welbery’s medical report of 28 October 2005 is the only report to link the condition of the premises to the Applicant’s symptoms. Dr Tridgell and Dr Chapman’s medical reports do not definitely state there is a connection.
9The Applicant gave sworn evidence in support of her claim at the hearing on 8 February 2006. Both legal representatives made submissions in relation to the application for summary dismissal and/or judgment. The Tribunal reserved its decision on 8 February 2006 and apologises to the parties for the length of time taken to provide this Statement of Reasons and decision.
EVIDENCE
Applicant’s Evidence
Causation
10In relation to the claim there is an excessive concentration of mould spores and/or nicotine residue and/or exhaust and diesel soot within the Applicant’s unit, the Applicant relied on the following investigative reports which are summarised in turn:
a) Report of Robson Laboratories Pty Limited, dated 8 September 2005
b) Report of Mr Jorge Guillen, Health Protection Service, ACT Health, dated 26 July 2005
c) Mr P Miller, Technical Advisor, Home Energy Advice Team, ACT Chief Minister’s Department, letter to the Applicant (undated) and letter to Ms J Tong, Senior Housing Manager, City Region, (dated 26 April 2005)
d) Report of Dr K S Basden, University Analytical Laboratory, University of NSW, dated 7 December 2005
11On behalf of ACT Housing, Robson Laboratories Pty Limited carried out a mould assessment on 26 August 2005. A copy of the resulting report dated 8 September 2005 was produced by the Applicant. The Summary section of the Report read:
“To assess if the unit is contaminated by mould, Robson Laboratories was contacted to take air and surface samples for mound and have them analysed. Results of sampling throughout the unit found moderate concentrations of mould spores, with the highest concentrations in the main bedroom. There is no evidence that mould is actively growing in the unit. However, give (sic) the owner suffers from a respiratory or allergy-type condition it is recommended that the unit is thoroughly cleaned and kept well ventilated.”
12Robson Laboratories further reported that there was “no visible mould growth found inside the house other than some colonies on window surfaces and window panes in the laundry and toilet. There was no detectable odour of mildew or mould. … A fine dark stain was noted on many interior walls. The morphological characteristics of the stain are unlike mould however, and are more indicative of airborne dust or fine particle matter.” Finally, Robson Laboratories said “it is unlikely that mould spores are a causative agent for the owner’s health conditions. However, it is possible that, due to poor ventilation in the unit, even moderate concentrations of mould spores are exacerbating any pre-existing respiratory conditions suffered by the owner. For instance, exposure to peak spore concentrations in the main bedroom over a prolonged period of time may exacerbate allergic-type reactions and should be avoided by immuno-compromised individuals.”
13The Applicant also produced a copy of a report dated 26 July 2005 by Mr Jorge Guillen, Health Protection Service, ACT Health, who carried out inspections of the unit on 2 and 6 June 2005 to determine the nature and extent of the excessive mould problem reported by the Applicant. In his letter to the Applicant dated 26 July 2005 accompanying that Report, Mr Guillen stated :
1. The dwelling, in particular the bedrooms (which face south) appear to be quite prone to mould growth even though regular cleaning was said to taking place.
2. Conditions in the bedrooms was (sic) generally conducive to mould growth in that they are cold and damp, as well as difficult to keep warm due to poor insulation in the floor and the external walls.
3. Wind out windows were extremely difficult to clean due to the positioning of the fly screen, particularly in view of [the Applicant’s] current physical limitations. The height of the windows from the ground outside the unit would make cleaning extremely difficult.
14Mr Guillen further stated that tests of surface swabs taken during the inspections had showed “an excessive amount of yeasts and moulds in general … This excessive presence moulds (sic) and in particular yeast, is an indicator of very poor environmental conditions.” Finally, Mr Guillen recommended that “immediate steps be taken to treat resident spores in the house as well as improve the passive solar rating and or the energy efficiency of the premises.”
15Mr P Miller, Technical Advisor, Home Energy Advice Team, ACT Chief Minister’s Department wrote both to the Applicant (undated) and to Ms J Tong, Senior Housing Manager, City Region, (dated 26 April 2005) reporting on his visit to the unit at the invitation of the Applicant to assess what might be the cause of the mould. He stated that in his professional opinion the cause of the mould problem is the lack of insulation in the walls and under the floor; this results in a cold inner surface of the bricks and walls. Relatively warm air strikes these surfaces, condenses and produces the necessary conditions for mould growth. Mr Guillen stated in his letter that the Applicant’s unit is “particularly bad” as it is at the end of the building and therefore has an additional external wall and also it is directly over the underground parking garage. He stated the exhaust fan installed to remove air from the unit to alleviate the problem is “an exceptionally inefficient and not particularly effective way” to solve the problem. A more effective solution would be to install insulation under the floor and in the walls.
16Finally, the Applicant lodged an Indoor Air Survey Report on the unit by Dr K S Basden, University Analytical Laboratory, University of NSW dated 7 December 2005. Dr Basden states his expertise as “aerosol technology in general and fugitive dust generation and distribution in workplace and mining environments in particular”. He summarised his findings concerning the dark material coating the walls and other internal surfaces of the Applicant’s unit as consisting of “airborne particulate matter (principally automotive and diesel exhaust soot), introduced from the external environment”. He stated the dark material was not mould growth.
17In relation to the mould spore readings from the carpet and curtains in the Applicant’s unit, Dr Basden stated (page 5) that, in his experience, the figures obtained in the survey are typical of those obtained from problem premises. He concluded:
“However, it is my opinion that Ms Kerin’s medical problems could be caused by mould infestation, which was suggested as a possibility, but not established, in the Robson Laboratories Pty Limited report of 8 September 2005. For that survey, the investigators used sampling and analytical procedures different from those adopted for this investigation. The results reported therein indicate that mould accumulations, not only in the carpets, (probably exacerbated by the periodical washing of the walls) but also on the curtains, are consistent with other domestic and schoolroom situations were adverse medical problems have occurred.”
18The Applicant gave sworn evidence on 8 February 2006 in which she stated the unit was “filthy” when she moved in. She disagreed with the Condition Report in that she stated she was told that what appeared to be dirt on the carpet was just that. She said she had problems from the beginning. In the cold months as condensation becomes worse it ‘ran down the walls”. Keeping the window wide open was not feasible as the flat became too cold. The Applicant said the next door unit was fixed up in 2003 and she was told this would also fix her flat. She said it did not. In fact, she said the problem became worse because, as result of the flat next door being fixed, she was told (I assume by a ACT Housing representative) not to put towels on her carpets. Because she did not do so during the winter, the carpet became very damp.
19The Applicant said she did not know where the particles come from. She said she can wipe the floor with a damp towel and the towel will have black particles on it. She said she could do this each day but that, after removal, the particles come back quite quickly. She said the particles come on everything – windows, curtains, floors, furniture.
20The Applicant said she found running a heater helped solve the problem as the walls were warm so the condensation did not form. However, she said she could not afford to keep the heater on continuously. She agreed with the legal representative for ACT Housing that the carpet in the unit was replaced in June 2001, that the carpet had not been steam cleaned since and that the washing machine overflowed in March 2004 with the result that some of the new carpet got wet. She said she vacuumed the carpets each week but avoided the mouldy bits. She also agreed that a new exhaust fan was installed in the bathroom in December 2004 or January 2005 and the bathroom and laundry were repainted about the same time. The Applicant said she had to wear a mask and put Gladwrap over her eyes when she washed the curtains. She stated she cleaned the bed blankets “all along”: both before and after Dr Basden’s Report.
21She said that her symptoms gradually became worse, the nose and sinus problems increasing. She said all these problems arose subsequently to moving into the unit. She said her voice harshness became worse to the point she could hardly speak: it was not laryngitis. She said she has itchy skin with a permanent rash that has developed since she moved into the unit. The problems are less in summer when the air cooler removes hot air from the flat and also the dust particles. The Applicant agreed with the legal representative for ACT Housing that she lodged a formal written complaint in mid-2005 with ACT Housing on the Housing and Community Services Complaint Notification form. She said she had made numerous informal complaints prior to that.
22In answer to questions from ACT Housing’s legal representative, the Applicant agreed she had moved into Unit 22 Jerilderie Court from Unit 23 Jerilderie Court as a result of her request for a unit less likely to aggravate her sinus problems.
23The Applicant produced a handwritten internal memo from Joanna Treacy, Team Leader at ACT Housing to “Debbi” dated 24 August 2005 in which Ms Treacy made the following points:
i.A work order had been raised for the unit to be cleaned and painted throughout with anti-mould paint and for steam cleaning the carpets;
ii.Numerous ACT Housing staff have been involved over a period of time with the problem;
iii.The Applicant wanted ACT Housing to provide her with a Hazchem suit (mouth and nose mask) to wear in the unit which ACT Housing refused;
iv.An inspection by ACT Housing scheduled for two weeks earlier was cancelled by the Applicant;
v.The Applicant had reported storing personal paintings in a cupboard in the unit which were damaged by mould;
vi.Ms Treacy stated she had suggested to the Applicant that ACT Housing could assist her with a permanent move, however, the Applicant wanted a location in which all available accommodation had been allocated;
vii.Ms Treacy also stated she told the Applicant that ACT Housing could offer her temporary accommodation whilst work is being carried out on the unit; that ACT Housing could consider self-contained accommodation in the local vicinity with assistance to pack her things for the move.
24The Applicant also produced a typed file note by Ms Jenny Stein, dated 15 September 2005 in which Ms Stein stated she visited the Applicant’s unit on 24 August 2005 with Ms Sadie McBride from ACT Housing and “Damien” from “Morgans” who took swabs of sample areas of concern to the Applicant. Ms Stein stated there was evidence in the flat of something on the walls but it was difficult to deduce whether or not there were airborne particles that could cause detrimental physical effects. It was agreed with the Applicant that further testing would be undertaken and the Applicant was assured that if the property was found to be detrimental to her health, she would be moved out immediately.
25Ms Stein also noted that she visited the Applicant’s unit again on 26 August 2005 and that the testers from Robson’s Laboratories had already taken samples and left the unit. On 13 September 2005 Ms Stein spoke to the Applicant by phone to advise her of the results of the Robson’s Laboratories tests: that there was some mould present and the unit required some maintenance to attend to the issue but there was no proof that the mould was at extreme levels nor that it was detrimental to her health. Ms Stein advised the Applicant that she had the option of moving out temporarily whilst the maintenance was carried out, or moving permanently. The Applicant expressed dissatisfaction with the tests that were carried out. A meeting was organised for 15 September at the unit. The Applicant cancelled the meeting.
Medical Condition
26In relation to her claimed health problems, the Applicant relied on the following documentary evidence which will be considered in turn:
i.Dr Yuille, General Practitioner, medical reports dated 21 April 1999, 10 October 2005,
ii.Dr L Welberry, General Practitioner, medical reports dated 28 October 2005, 4 January and 20 January 2006
iii.Dr Tridgell, Ophthalmologist, report dated 19 December 2005.
iv.Ms Nerryl Wheatley, Counsellor, Dove Counselling Services, letter dated 31 January 2006
v.Dr E Chapman, Surgeon, dated 29 November 2005
27The medical report of Dr R Yuille dated 21 April 1999 pre-dated the commencement of the tenancy. Dr Yuille reported to ACT Housing (the report bore a stamp stating “Housing Received 5 May 1999”) that the Applicant had reported increasing problems with her sinuses since moving into the flat she was then occupying caused, the Applicant believed, by cigarette fumes from the flat below. Dr Yuille stated the Applicant has a significant history of sinus problems, including surgery in the past and that cigarette smoke is likely to act as an irritant and aggravate the Applicant’s condition.
28Dr L Welberry in a medical report dated 28 October 2005 stated that the Applicant has long-term health problems that include nasal, sinus and eye problems; that the Applicant reported new and persistent problems including skin irritation and itching, together with increased nasal and sinus problems with sore throat and hoarse voice as well as soreness of the eyes. Dr Welberry stated she personally visited the Applicant’s unit and had observed the “presence of a thick dark coating on all surfaces (walls, ceilings, wooden and laminated areas). This is not a stain.” Dr Welberry stated that it is likely that the Applicant’s symptoms have been caused or aggravated by “a toxic substance in her unit”. Dr Welberry was of the opinion that washing the surfaces with soap and water would not solve the problem and recommended thorough investigation to identify the source of the problem. She stated the Applicant could not remain in the premises whilst this was being carried out.
29Dr Welberry stated in 4 January 2006 that “It is my medical opinion that the matters raised in Dr Basden’s report have caused eye problems (corneal ulcers/reduced vision in right eye), sore throats, hoarseness, skin irritation, generalised itching & loose motions./abdominal pain. Nasal & sinus problems have been exacerbated by the matters raised in the report.” Dr Welberry’s letter dated 20 January 2006 does not directly relate to the present claim.
30Dr Tridgell, writing to Dr Welberry on 19 December 2005, said he could not definitely state that the Applicant’s unit is to blame for her eye condition; only that it is possible.
31Ms Nerryl Wheatley, Counsellor, Dove Counselling Services, in a letter dated 31 January 2006 said that she had counselled the Applicant in the Applicant’s unit on 8 occasions between August and October 2005 for about 1½ hours each visit. Ms Wheatley said she herself had experienced a sore throat, itchy and watering eyes and itchy skin during her visits. The irritation occurred after she had been in the unit for a few minutes and usually subsided some time after she left the unit. Ms Wheatley said she noted a “very strong odour of what smelt like stale cigarette smoke and observed that the walls and surfaces of Debbie’s flat were very discoloured by what looked like a dark film. This discolouration became more pronounced on each visit.” Ms Wheatley said she was unable to drink water from a container stored in the fridge as it tasted and smelt like smoke. As a result of these problems, Ms Wheatley now sees the Applicant in Ms Wheatley’s office (with some inconvenience to the Applicant in travelling there).
32Dr Chapman in his report of 29 November 2005 noted that he first saw the Applicant in 2002 for nasal problems which had persisted since she had sinus surgery in the late 1980s. He saw her again in July 2003 for a throat problem and hoarse voice. The Applicant complained of the same symptoms in 29 November 2005 as well as “other miscellaneous symptoms of itch, irritable eyes and a general feeling of malaise.” Dr Chapman did not opine as to the cause of the Applicant’s symptoms, he merely stated that “under the circumstances probably the most constructive thing she [the Applicant] could do is to move to a new accommodation.” He doubted that “any medication would help her as much as this”.
ACT Housing Evidence
33ACT Housing made oral and written submissions in support of its application for summary dismissal/summary judgment and, at the hearing on 8 February 2006, produced the Condition Report in relation to the premises signed by the Applicant on 21 May 1999 and on behalf of ACT Housing on 20 May 1999. That Report listed the condition of the premises as “C” (which the legal representative for ACT Housing stated was short for “clean”) except for the lounge room floor coverings and ceiling which were noted to be “marked”. The Condition Report noted the tenant was to arrange steam cleaning of the carpets (the previous tenant having already paid for this).
34The legal representative for ACT Housing also stated that the first complaint by the Applicant concerning the state of the premises on the relevant ACT Housing file is dated 29 September 2004.
35Further the legal representative of ACT Housing stated that two attempts had been made to clean the carpets, curtains and walls in the unit, however, the Applicant had prevented these being carried out.
RESIDENTIAL TENANCY ACT 1997
36The sections of the Residential Tenancies Act 1997 most applicable to this tenancy dispute are Standard Residential Terms 54 (1) (a) and (b) and 60(l) together with section 104.
37For the principles to be applied in considering whether an Application should be dismissed or summary judgment entered, I refer to the decision of Master Harper in Susan Margaret Day v Silva Agneza Cengic [2004] ACTSC 33 (2 May 2005) where the Master stated in relation to an application for summary judgment by a plaintiff (at paragraph 22):
The Court must be satisfied, on the basis of affidavit evidence, that there is no triable issue. It is a remedy given sparingly, consistently with the High Court’s pronouncement in Fancourt v Mercantile Credits Limited (1983) 154 CLR 87 at 99 that it should be given with great care and only where it is clear that there is no question to be tried. If it appears to the Court that there is an issue of fact or law the proceeding must proceed to trial.
38Applying this to the present application, section 121 (2) of the Act enables the Tribunal to inform itself of any matter in any manner that it considers appropriate, therefore, the documentary evidence produced by both parties and the oral evidence of the Applicant together with the oral and written submissions of the parties will be considered in determining if the Applicant has a question to be tried.
39Also, as Justice Habersberger stated in Tapoohi v Lewenberg & Ors (No 2) [2003] VSC 410 in considering an application for summary judgment for a defendant:
“For the purposes of an application such as this I must approach the matter on the basis that the facts most favourable to the claim will be established.”
Therefore, in the event of a conflict, for the purposes of the consideration of the ACT Housing application for summary dismissal or judgment alone, I will approach the evidence on the basis that the facts most favourable to the claim will be established at any eventual hearing of the substance of the claim. Both parties have indicated they intend to call the various experts to give oral evidence at such a hearing.
REASONING
40ACT Housing pleaded a number of grounds for seeking the order for summary dismissal or summary judgment in respect of the claims against it. To enable the various grounds to be dealt with clearly, they will be considered separately in order of the submissions of ACT Housing set out in paragraph 7 above.
Clause 54(1)(a) Unfit for habitation
41Clause 54(1)(a) provides that a Lessor has an obligation to ensure that the premises are fit for habitation at the start of the tenancy. To establish a breach by ACT Housing of this obligation, ACT Housing submitted the Applicant needs to prove:
i.That the unit was unfit for habitation at the start of the tenancy;
ii.That the unit would be unfit for habitation by an “ordinary user/tenant” under the test of uninhabitability in Summers v Salford Corporation (supra); and
iii.That the condition of the premises at the commencement of the tenancy caused her enumerated symptoms.
iv.If a breach of Clause 54(1)(a) is established, the only remedy open to the Applicant is under Clauses 86 and 86 of the Standard Residential Terms: to terminate the tenancy and seek a rental rebate for the period of uninhabitability.
42The expert reports referred to above give various opinions on what is the problem in the Applicant’s unit: mould spores (Robson Laboratories and Home Energy Advice Team), yeasts and moulds (Health Protection Service), airborne dust or fine particle matter (Robson Laboratories), airborne particulate matter principally automotive and diesel exhaust soot (Dr Basden). Robson Laboratories drew a distinction between mould and the fine dark stain on many interior walls (a distinction also made by Dr Basden in his report) with the possible conclusion that there are two separate and distinct problems within the unit.
43Whatever the precise cause of either of the one or the two possible problems, there is obviously some problem in the Applicant’s unit or on the surfaces of the Applicant’s unit that has persisted for a considerable time and which, according to the Applicant’s evidence, has persisted since she first moved into the unit in May 1999. ACT Housing argued that the Applicant only made a formal complaint in August 2005 so the surfaces of the unit must have become a problem a considerable period after the start of the tenancy. Mr Miller, Home Energy Advice Team, and Mr Guillen, Health Protection Service, both indicated in their reports that the Applicant’s unit is particularly bad in relation to condensation on the walls (especially those of the main bedroom) due to inadequate insulation of the external walls and floor. If the problem is caused by inadequate insulation then it existed at the start of the tenancy; if it relates to mould growth from any action by the tenant then it may possibly not have existed at the start of the tenancy.
44In relation to ACT Housing’s submission that the unit need only be habitable by an ordinary user/tenant (see paragraph 7(ii) supra) Ms Wheatley in her letter states that she personally experienced a sore throat, itchy and watering eyes and itchy skin when she visited the Applicant’s unit for 1½ hours on 8 occasions to give the Applicant counselling. She stated the symptoms occurred within a few minutes of being in the unit and that they were such that she now has the Applicant visit her offices rather than go to the Applicant’s unit. Thus at least one other person has stated they suffered similar symptoms whilst in the unit.
45Also, the various experts have indicated in their reports that there is a health problem in the unit: either generally due to mould and/or dust particles which occur in environments known to be “problem environments” or particularly for the Applicant who suffers from ongoing nasal and sinus problems. The medical experts indicated that it is possible or even likely that the Applicant’s health problems (or some of them) have been caused or exacerbated by the problems in the unit. Robson Laboratories opined that it was unlikely that the mould spores are a causative agent for the Applicant’s health condition, however, it was possible that the mould was exacerbating her pre-existing respiratory condition.
46The Tribunal agrees with the ACT Housing that it has no jurisdiction to order ACT Housing to relocate a tenant.
47The remedy the Tribunal can give for a breach by a lessor of the obligation under Clause 54(1)(a) is not necessarily limited to the remedies in Clauses 86 and 86 of the Standard Residential Terms as submitted by ACT Housing. Arguably the Tribunal may grant a rental rebate under section 71(1) of the Act as it did in Greenhill v Commissioner for Housing for the ACT [2003] ACTRTT (Greenhill). [The Tribunal notes that a Member of the tribunal considered this question in Kiternas v Watts [2006] ACTRTT 4 since Greenhill.] In Greenhill the Tribunal found the Applicant tenant had proved serious breaches by the lessor of it’s obligation to carry out urgent repairs such that the Tribunal considered the breach to fall within the “extreme case” referred to by the Full Court of the Federal Court in Worrall v Commissioner for Housing for the ACT [2002] FCAFC 127 (paragraphs 53-54) where their Honours referred to the Community Law Reform Committee Report, stating paragraph 486 of the Report recommended that the remedy of reduction of rental or an award of compensation to a tenant was to be made available:
"… for property or financial loss only … [and] … not for personal suffering but for loss of facilities … In an extreme case the tenant should be able to receive a 100% reduction in rent if the tenant is forced to find temporary alternative accommodation as a result of the premises becoming unliveable."
48Whilst the Applicant did not cease occupation of the unit, it would be open to the Applicant to argue that a breach by ACT Housing of Clause 54(1)(a) has caused significant diminution in the Applicant's use and enjoyment of the premises sufficient to ground a rental reduction under section 71(1) for the duration of the tenancy or some lesser period. If the Applicant had vacated the premises during the period of uninhabitability, the Tribunal would have been justified in finding she had been “forced to find temporary accommodation as a result of the premises becoming uninhabitable” in the words of the Community Law Reform Committee Report paragraph 486.The Applicant would have an arguable question of law on this basis. It is arguable the Tribunal could exercise it’s power under sections 104(m) and 121(2) of the Act to make such an order at any future hearing. As the Tribunal stated in Greenhill:
It is inconceivable that the [Act] is to be interpreted in a way that discriminates against a tenant who is on a disability pension and therefore does not have the choice to move out of uninhabitable promises.
49There is a duty to mitigate any damages on a tenant under section 38 of the Act. It may be that ACT Housing has an arguable defence under this section for some part of the above compensation.
50Given the conflicts indicated above, the evidence presented to the Tribunal thus far will be approached on the basis that the facts most favourable to the Applicant will be established at a hearing. Therefore, the Tribunal finds that there is an issue of fact and/or of law sufficient that the matter should proceed to a hearing in relation to the claim under Clause 54(1)(a)Standard Residential Terms.
Clause 54(1)(b) Reasonably clean
51Clause 54(1)(b) provides that a Lessor has an obligation to ensure that the premises are reasonably clean at the start of the tenancy. The parties did not address this issue as strongly at the hearing or in their submissions. ACT Housing produced the Condition Report signed by the Applicant and by a representative of ACT Housing. At stated above, that Report indicated that (except for the steam cleaning of the carpets which had been paid for and which the Applicant was to organise) the premises were clean. Under sections 29 and 30(1) of the Act when a Condition Report is signed by both the tenant and the lessor, a statement in the Report as to the general condition of the premises is “evidence of that state of repair or general condition as at the day on which the tenant was given the report”. As the Applicant signed the Report on 21 May 1999 she had been given the Report by then.
52The fact that the first formal complaint made by the Applicant was in September 2004 is indicative that whilst the Applicant stated in evidence there were problems from the start of the tenancy, she did not consider the situation warranted a formal complaint until about 5 years after the tenancy commenced. The evidence confirms that the measures taken by ACT Housing to identify and rectify the problem mostly occurred in 2005.
53Taking into account the evidence presented to the Tribunal thus far and approaching it on the basis that the facts most favourable to the Applicant will be established at a hearing, there appears to be no real conflict that the premises were reasonably clean at the start of the tenancy. The Tribunal finds the premises were reasonably clean at the commencement of the tenancy. Therefore, ACT Housing has fulfilled it’s obligation under Clause 54(1)(b). The obligation thereafter is on the tenant to keep the premises reasonably clean under Clause 63(c) of the Standard Residential Terms.
Clause 60(l) Urgent Repairs
54The Applicant claims that ACT Housing has not undertaken urgent repairs as soon as necessary in pursuit of it’s obligation under Clauses 59 and 60(l) of the Standard Residential Terms. Those clauses require the lessor, after notification by the tenant of the need for urgent repairs, to carry out urgent repairs as soon as necessary having regard to the nature of the problem. ACT Housing submitted that the rectifications sought by the Applicant were not repairs and/or were not urgent repairs within those clauses. Clause 60(l) defines as an urgent repairs “a fault or damage likely to cause injury to person or property”.
55The Tribunal agrees with ACT Housing’s submission, following Re Newell [2003] ACTSC 31 that the obligation to undertake urgent repairs under Clause 60(l) does not extend to changing the nature of the premises or to making structural improvements. The meaning of “repairs” is as set out in the Shorter Oxford Dictionary:
The restoration of the relevant thing to “good condition by renewal or replacement of decayed or damaged parts or by refixing what has given way; to mend”.
56As decided in Lazar v Williamson (1886) 7 LR (NSW) 98, making good structural deficiencies for the purpose of facilitating use by a tenant, not being other than a design shortcoming, is not within the meaning of the term "repairs". From the reports of the various experts set out above it is arguable that the repairs that are needed to the Unit are repairs to make good structural deficiencies arising out of a variety of possible design shortcomings. It is arguable that installing insulation in the floor and walls is to overcome a design shortcoming and also it is arguable that replacing carpet is a repair as defined in Re Newell above.
57Given the opinions of the various experts concerning the effect of the problems in the unit on either the Applicant’s health or on that of more “ordinary users”, the Tribunal is of the opinion that approaching the evidence on the basis that the facts most favourable to the Applicant will be established at a hearing, there is an issue of both fact and law to go to hearing.
58The reasoning set out in paragraphs 47-49 above would also apply to this part of the Applicant’s claim and to any defence by ACT Housing to it.
59Given that the actual cause of the problems in the Applicant’s unit is a matter of difference between the experts (as set out in paragraphs 12-19 above) and approaching the evidence on the basis that the facts most favourable to the Applicant will be established at a hearing, there is a conflict in issues of evidence and of law under Clause 60(l) to go to hearing before the Tribunal.
60Therefore, the Tribunal finds that there is an issue of fact and/or of law sufficient that the matter should proceed to a hearing in relation to the claim under Clause 60(l) Standard Residential Terms.
Remedies
61Given the Tribunal’s reasoning above, the question of the applicable and appropriate remedies available to the Tribunal to the Applicant will be addressed at the further hearing if, after hearing and considering all the evidence then available to it, the Tribunal decides it is appropriate to award a remedy or remedies to the Applicant.
ORDERS
1That the application by ACT Housing for summary dismissal or summary judgment should be dismissed, except that part relating to the Applicant’s claim under Clause 54(1)(b) Standard Residential Term.
2The matter is to be set down for further hearing before the Tribunal as soon a practicable in relation to the Applicant’s claims under Clauses 54(1)(a) and 60(l) of the Standard Residential Terms.
Jennifer David
Member
22 March 2006
0
5
0