Grant v Director of Housing
[2018] VCC 2065
•11 December 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-17-05070
| MEGAN GRANT | Plaintiff |
| v | |
| DIRECTOR OF HOUSING | Defendant |
---
JUDGE: | HIS HONOUR JUDGE P GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 November 2019 | |
DATE OF DECISION: | 11 December 2018 | |
CASE MAY BE CITED AS: | Grant v Director of Housing | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2065 | |
REASONS FOR DECISION
---
Subject: PRACTICE AND PROCEDURE
Catchwords: Application for summary judgment by defendant under rule 22.16 of the County Court Civil Procedure Rules 2008, and more particularly s62 and s63 of the Civil Procedure Act 2010
Legislation Cited: County Court County Court Civil Procedure Rules 2008; Civil Procedure Act 2010, s62 and s63; Wrongs Act 1958; Residential Tenancies Act 1990 (Vic); Charter of Human Rights and Responsibilities Act 2006 (Vic); Housing Act 1983, s6; Personal Safety Intervention Order Act 2010; Civil Law (Wrongs) Act 2002 (ACT); Housing Assistance Act 2007
Cases Cited:Donoghue v Stevenson [1932] AC 562; Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27; Harris v Commissioner for Social Housing [2013] ACTSC 186; Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; Modbury Triangle Shopping Centre v Anzil (2000) 205 CLR 254; Meyers v Commissioner for Social Housing [2018] ACTSC 193; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; Smith v State of Victoria [2018] VSC 475
Judgment: The defendant’s summons is dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D J Carolan | AMK Law |
| For the Defendant | Dr I R L Freckelton QC with Ms M Pekevska | HWL Ebsworth Lawyers |
HIS HONOUR:
Irinotcodunt
1“The categories of negligence are not closed. [1]” This is a statement of principle impressed upon law students and ingrained in the mind of litigation practitioners. It is a useful entreaty to bear in mind in considering the circumstances of this application made by the defendant under the Rules of this Court and s63 of the Civil Procedure Act 2010 (“the CPA”) that the plaintiff’s claim to being owed a duty of care by the defendant has no chance of success and should be dismissed.
[1] Donoghue v Stevenson [1932] AC 562
2The duty of care alleged in the plaintiff’s Amended Statement of Claim is that the defendant is required to take reasonable steps to investigate and monitor any complaint made in relation to one of its tenants of public housing and to take reasonable steps to remove or relocate a tenant known to possess a risk to property of all persons in the vicinity of a property owned, operated and managed by the defendant. The plaintiff alleges a breach of this duty of care and that she has suffered loss and damage in consequence of the breach and that this was reasonably foreseeable. The plaintiff’s claim is governed by the Wrongs Act 1958. For the reasons that follow, I am not satisfied that the defendant has established the basis for the relief sought. The defendant’s summons will be dismissed.
3The trial of the proceeding was listed for 20 November 2018. So too was the defendant’s summons. This was unfortunate, because it meant the trial could not proceed. The application to dismiss could have been brought a lot earlier and in fact, the force of the defendant’s submissions would have been able to be made immediately after the commencement of the plaintiff’s proceeding as they were at the hearing of the summons. No good reason was advanced why the summons was brought so late. Counsel for the plaintiff furthermore submitted in the course of his submissions that the day before the date listed
for the proceeding to be heard and the return of the defendant’s summons, the plaintiff’s solicitor was served with a second affidavit of documents consisting of a further sixty documents.2
The Plaintiff
4The plaintiff owned and occupied a residential property, Unit 5, 3 Perkin Avenue, Pascoe Vale, in Victoria.
5The defendant owned the adjacent unit (Unit 5). The defendant granted a tenancy of Unit 5 to a man named Flores. Flores was a public housing tenant.
The Defendant
6Stuart Lindner is the Director for Service Implementation and Support Branch, Children, Families, Disability and Operations Division for the Department of Health and Human Services (“DHHS”) and has affirmed an affidavit in support of the summons to dismiss. For writing simplicity, I will refer collectively to the DHHS and various employees within its various regions as “the defendant”.
7Mr Linder deposed that he is responsible for the development of operational policies to guide the management of tenancies in properties owned or leased in, and leased out to tenants by the defendant.3 The defendant provides housing and homelessness assistance to Victorians. Day-to-day management of public housing tenancies occur through seventeen designated areas which form part of the North, East, West and South operational divisions.4
8As at 30 June 2017, the defendant managed 64,176 direct tenure public rental units, which provide long-term subsidised rental accommodation to low income, or disadvantaged people in Victoria. In addition, the defendant oversaw approximately 19,500 community managed rental housing premises. Mr Lindner estimated that together, these premises house approximately 166,000 persons.5
Transcript 64, Line 22
Paragraph 3
Paragraph 4
9Mr Linder deposed that of those persons housed by the defendant, many are disadvantaged and many have experienced homelessness and family violence, and all come from socially disadvantaged backgrounds.6 He stated that where a public housing tenant behaves in a way that is outside the tenancy agreement or their obligations under the Residential Tenancies Act 1990 (Vic) (“the RTA”) or displays antisocial behaviour, defendant staff are required to investigate these allegations in relation to the individual tenant and their circumstances, gather evidence and provide an opportunity for the tenant to respond in accordance with principles of natural justice and procedural fairness, as well as their rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic). He said that this must occur before actions are taken by the defendant to issue a breach notice, a notice to vacate order or a warrant for possession under the RTA. He noted that public housing tenants with complex individual circumstances and needs may not have other accommodation options available to them. He said that the defendant has powers to acquire, dispose, develop, manage and lease land pursuant to the Housing Act 1983, s6 of which provides the objectives for exercising the defendant’s powers, and these objectives include ensuring every person in Victoria has adequate and appropriate housing at a price within his or her means. He deposed that the defendant also has responsibilities as a landlord that are imposed by the RTA.
The test under the Civil Procedure Act for summary dismissal
10The power to summarily dismiss a civil proceeding is found in s63 of the CPA. It states:
“(1) Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.
(2)A court may give summary judgment in any civil proceeding under subsection (1)—
(a) on the application of a plaintiff in a civil proceeding;
(b) on the application of a defendant in a civil proceeding;
(c) on the court’s own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding.”
11The operation of s63 of the CPA has been the subject of many decisions by superior courts. In determining if a claimant’s proceeding “has no real prospect of success”, the parties agreed that the applicable principles are those expressed in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd,7 as follows:
“Upon the present state of authority:
(a)the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success;
(b)the test is to be applied by reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel;
(c)it should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
(d)at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.”
12For the reasons that follow it has not proved necessary for me to consider the application and operation of s64 of the CPA.
eldyfre–eiinineidimngdoK etUn th otspo th ac o tdu egela Th
13Dr Freckelton QC, together with Ms Pekevska of counsel, represented the defendant. Dr Freckelton furnished a detailed analysis of the law of the United Kingdom as it applies to duty of care owed by a landlord to a stranger to a tenancy agreement in connection with conduct of the tenant when that conduct has caused injury to the stranger. I do not repeat here the many references in
the authorities and the line of development in England that each case rehearsed. There is no need to do so, because in addition, the relevant judicial tracing has been thoroughly identified in Australia by Master Mossop in Harris v Commissioner for Social Housing.8 It was not suggested by counsel for the defendant that the analysis of the authorities in Harris is incorrect or misstates the ratio of the authorities referred to.
14Mr Carolan accepted that if the proceeding was only governed by the law relating to whether or not a duty of care is owed by a landlord of a tenant to the plaintiff, then the plaintiff’s claim would likely fail; however, despite this frank admission, Mr Carolan submitted that the law of England did not cover the field when the alleged duty of care is “novel” and the claim for damage arises under the Wrongs Act. Mr Carolan submitted that I should consider the nature of the alleged duty of care in accordance with the principles distilled in Caltex Refineries (Qld) Pty Ltd v Stavar.9 I agree. No reason was advanced by the plaintiff in the course of the hearing of the defendant’s summons why an analysis of the relevant salient features should not be adopted.
15Before delving further into the competing submissions, I note that the defendant explicitly disavowed reliance on an immunity from suit in negligence and instead contended that it did not owe a duty of care to the plaintiff as a matter of law and therefore the plaintiff’s claim should admit of the characterisation of having “no real prospect of success” and therefore be dismissed under s 63 of the CPA.
The Wrongs Act
16Section 83 of the Wrongs Act states:
“Principles concerning resources, responsibilities etc. of public authorities
In determining whether a public authority has a duty of care or has breached a duty of care, a court is to consider the following principles (amongst other relevant things)—
(a)the functions required to be exercised by the authority are limited
[2013] ACTSC 186
(2009) 75 NSWLR 649
by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions;
(b)the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceeding relates);
(c)the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceeding relates.”
eiinfyfreca o dut o otspoex Th
17It is well established that certain categories of relationship impose on the part of one person a duty of care to another. The categories of relationship that might be able to give rise to a duty of care owed by one person to another are not closed and immutable. If it were so, then development of the law would be stifled; however, an argument without more, that despite no duty as alleged having been previously recognised, the defendant’s relief should be refused is an insufficient argument because if that was all a plaintiff would be required to do to meet a summons under s 63 of the CPA, a defendant could never succeed.
18In this case, the plaintiff occupies no relationship to the defendant in the sense that she is not a public tenant and her unit is private freehold property owned by her. In that sense, the plaintiff is a stranger to the defendant. The defendant was the landlord to the tenant of one of its properties. I accept that the law is settled that a landlord cannot by reason alone of having granted a tenancy to one person be responsible to a stranger to the tenancy because of the conduct of the tenant of the tenanted property. That state of affairs is insufficient to give rise to a duty of care at law. Therefore, if the defendant owed a duty of care to the plaintiff, it must arise independently of the tenancy, and the duties owed to the plaintiff must arise not by reason of landlord and tenant law but otherwise.
19The plaintiff alleges the duty of care exists independently of the relationship as between the defendant and its tenant, Flores, as a public housing body with the functions it has under statute. The plaintiff says a duty of care was owed to her
because of the particular facts.
20In order to test whether a duty of care could exist when the duty sought to be advanced is “novel”, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by reference to the salient features or facts to decide the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury. The foundation for the alleged duties of care relied on by the plaintiff are the facts pleaded in the paragraphs numbered 4 to 9 of her Amended Statement of Claim. For the purposes of the application brought by the defendant to dismiss the plaintiff’s proceeding because there is no chance of her successfully establishing the existence of a duty of care owed by it to the plaintiff, it accepted that the plaintiff had been subjected to obnoxious conduct including a physical assault by Flores who was granted a tenancy of Unit 5. The facts pleaded are:
(i)On 16 November 2013, the plaintiff purchased Unit 4, adjacent to Unit 5;
(ii)Between November 2014 and September 2017, Flores resided at Unit 5 as a tenant of the defendant;
(iii)On 1 November 2014, the plaintiff moved into Unit 4;
(iv)Flores engaged in a range of repetitive, noisemaking activities and antisocial behaviours in common areas and around Unit 4, principally at night time. The plaintiff says Flores’ activities interfered with the use and enjoyment of persons residing in the immediate vicinity of Unit 5, including herself;
(v)Flores caused, or attempted to cause, damage to property in common areas and around her unit, including lighting fires, vandalising fences, smashing windows and lights and vandalising garden beds;
(vi)Flores engaged in a range of threatening and dangerous behaviours in common areas and around her unit, including carrying a machete,
repeatedly painting over dividing lines between car parking spaces, swerving his motorcar to neighbours standing beside the driveway, trespassing, attempting to trespass into properties, throwing lit objects in the vicinity of neighbours’ property and throwing glass objects in the vicinity of the plaintiff’s unit;
(vii)On 1 May 2016, the plaintiff was verbally and physically assaulted by Flores in the area in which the car parking spaces for Unit 4 and Unit 5 are located, and that he yelled at her and then punched her multiple times with a closed fist to the chest and back;
(viii)The plaintiff made repeated reports to the Victoria Police. In addition, the plaintiff said that between 5 May 2016 and 16 June 2016, she sought and then obtained interim and final intervention orders against Flores at the Broadmeadows Magistrates’ Court, under the provisions of the Personal Safety Intervention Order Act 2010.
(ix)In or around August 2017, Flores was arrested, charged with stalking and was subsequently released on bail on condition he reside in a psychiatric facility at Northern Hospital, and in around September 2017, Flores returned to Unit 5 on at least two occasions before the defendant notified the plaintiff that the defendant had taken vacant possession of Unit 5;
(x)The plaintiff said that she made multiple reports to DHHS staff concerning Flores’ antisocial behaviours, attempted and actual damage to property and his threatening and dangerous behaviour.
21The following parts of the plaintiff’s pleading is relevant as well.
“Entities and Individuals
4Unit 5, 3 Perkin Avenue, Pascoe Vale, is a residential property, located in the State of Victoria and owned by the Defendant (Unit 5).
5At all relevant times the Defendant, through the Director's employees, servants or agents, owned, operated and managed Unit 5, pursuant to the Housing Act 1983 and the Residential
Tenancies Act 1997.
6At all relevant times, the operation and management of Unit 5 by the Defendants included:
a. entering into tenancy agreements for the provision of public housing;
b. providing landlord services in accordance with the Residential Tenancies Act 1997;
c. exercising the duties and obligations required of the Defendants under the Housing Act 1983;
d. exercising the duties and obligations of landlords required of the Defendant under the Residential Tenancies Act 1997.
7At all relevant times, Jacqui Wilson (Wilson), Paul Bentley (Bentley), Leanne March (March), Amanda Rothwell (Rothwell) and Kathryn Lamb (Lamb) were employed by the Defendant in the North Division, with duties and responsibilities that related inter alia to the tenancy arrangements for Unit 5.
8On or around 16 November 2013, the Plaintiff purchased the property adjacent to Unit 5, being Unit 4, 3 Perkin Avenue, Pascoe Vale (Unit 4).
9Between November 2014 and September 2017 Jose Flores (Flores) resided at Unit 5 as a tenant of the Defendant (the Relevant Period).”
eitrstest etueaf nelsa Th
22In Caltex Refineries,10 Allsop P extracted from the pertinent authorities a non- exhaustive list of considerations of the kind relevant to the evaluative task of imputation of the duty and the densification of its scope and content, an analysis that has been approved and adopted in subsequent decisions. These considerations include:
“(a) the foreseeability of harm;
(b)the nature of the harm alleged;
(c)the degree and nature of control able to be exercised by the defendant to avoid harm;
(d)the degree of vulnerability of the plaintiff to harm from the defendant’s conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;
(e)the degree of reliance by the plaintiff upon the defendant;
(ibid) at 676, paragraph [103]
(f)any assumption of responsibility by the defendant;
(g)the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;
(h)the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff;
(i)the nature of the activity undertaken by the defendant;
(j)the nature or the degree of the hazard or danger liable to be caused by the defendant’s conduct or the activity or substance controlled by the defendant;
(k)knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff;
(l)any potential indeterminacy of liability;
(m)the nature and consequences of any action that can be taken to avoid the harm to the plaintiff;
(n)the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one’s own interests;
(o)the existence of conflicting duties arising from other principles of law or statute;
(p)consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and
(q)the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.”
23Dr Freckelton submitted the two positive duties pleaded by the plaintiff in her Amended Statement of Claim could not be made out. He addressed the alleged duty of the defendant to take reasonable steps to investigate and monitor any complaint made in relation to one of the defendant’s tenants, concerning:
(i)actual or attempted damage to properties in the vicinity of a property owned, operated and managed by the defendant; or
(ii)conduct likely to pose a risk to the safety of persons living in the vicinity of a property owned, operated and managed by the defendant.
24Dr Freckelton submitted that the duties are not known under landlord and tenant law and moreover, in accordance with the law of negligence as explained, for
example in Modbury Triangle Shopping Centre v Anzil,11 in which Gleeson CJ said:
“The present is not relevantly a case of assumption of responsibility. The respondents submitted that the appellant assumed responsibility for the illumination of the car park. That submission confuses two different meanings of responsibility: capacity and obligation. The appellant owned and occupied the car park, controlled the lights in it, and decided when they would be on and when they would be off. But the relevant question is whether the appellant assumed an obligation to care for the security of persons in the position of the first respondent by protecting them from attack by third parties.”
25Dr Freckleton also relied on that line of the authority that places considerable strictures on a claims in negligence based on positive acts as opposed to conduct by omission to which I have had regard.
26Ultimately it might prove true that none of the duties pleaded by the plaintiff will succeed; that is not, of course, the enquiry I am charged with undertaking. The question for me is very different, and it is whether, on an interlocutory basis, I am satisfied that the duties, or any one of them, has no chance of success.
27I am not satisfied that the first duty of care alleged has no chance of success.
If the question is asked what it is that constitutes the springboard to require the defendant to “investigate and monitor” any complaint received by it in relation to one of its tenants concerning actual or attempted damage to properties in the vicinity of a property owned and managed by it, the response cannot be met by the answer “nothing”. The obligation to investigate and monitor is certainly a power that is exercisable by the defendant under its statutory remit but how could it be said that the power to investigate and monitor is translated to impose a duty on the defendant to do the same? Can a repository of a statutory power that allows for an investigation in relation to someone or something, such as the behaviour of a tenant, ever come under a duty to act positively by exercising the powers conferred on it for the benefit of an individual who is not the beneficiary of, for example in this case, public housing? The plaintiff would
(2000) 205 CLR 254 at 264
have no standing under the legislation that governs the defendant, but what about at common law?
28I do accept that the defendant is a statutory body that exercises no greater powers than are conferred on it by relevant statutory instruments and as a landlord, no greater powers than exist under the RTA. The Housing Act does not invest the defendant with peculiar powers, the exercise of which could have be brought in aid at the suit of the plaintiff. The plaintiff has not pleaded, and her counsel did not contend, the existence of any power that should have been exercised or that was not exercised. Recourse to the primary legislation under which the defendant operates does not assist the plaintiff, but arguably it does not matter, because the plaintiff is not seeking to utilise the powers reposed in the defendant as a sword or shield for her own benefit, but rather her claim is that the defendant, as an entity with both obligations and a power to take steps in relation to the Flores’ tenancy once becoming aware of the turmoil he was visiting on the plaintiff, required it to take action. The plaintiff arguably was a person who was within the reasonable contemplation of the defendant as someone likely to be affected either by exercise or the failure to exercise powers to have Flores removed from the property. The plaintiff seeks to have a trial to enable the facts to determine if it was, or ought reasonably to have been, apparent to the defendant to exercise powers available to it to take steps to have Flores removed or relocated sooner. A substantial part of the answer to that question will depend on the evidence to be adduced at trial.
29The duty of care alleged by the plaintiff is that the defendant was obliged to take reasonable steps to remove or relocate a tenant who poses a known risk to properties and/or persons in the vicinity of a property owned, operated and managed by the defendant. At the nub of the allegation is that the defendant had power to take steps in response to a troublesome tenant and that in the particular facts of the case, imposed an obligation on the defendant to do so as a result of having been notified of the tenant’s conduct. Dr Freckelton agreed
that a step open to the defendant is to initiate proceedings to have a tenancy ended by the Victorian Civil and Administrative Tribunal (VCAT) and that this is what the defendant did. I accept the submission by the defendant as far as it goes, but for the reasons I have expressed in the preceding paragraphs, I am not persuaded the arguments go far enough to result in me having been satisfied that the claim has no chance of success as a matter of law.
30It was developed by the plaintiff in the course of oral submissions, that because of the defendant’s knowledge of the plaintiff’s travails at the hands of Flores, the defendant owed the plaintiff a duty of care to not just take steps to remove or relocate him (which the defendant did), but to act in a more timely manner in initiating the action to remove or relocate Flores. Counsel submitted they “did too little too late”.12 There is no question that the extent of the defendant’s power was to take steps along the way to relocate the tenant but its power to do so was circumscribed by the RTA and the machinery provisions and protections afforded a tenant, including recourse to the VCAT. Whilst it is conceivable that the plaintiff cannot make good a claim for damage (subject to arguments about the entitlement to bring a claim for compensation for injuries at common law for damages about which it was agreed by the parties I need not determine), the question is whether a duty of care existed that required the defendant to act in a more timely manner has no chance of success. Furthermore, the basis of the duty of care may be a refined as a failure by the defendant or a delay by the defendant in taking a step to put in train action that might have led to an earlier determination for the relocation of the tenant. Of course it might not have had this outcome in some other set of circumstances but as a matter of fact the defendant did obtain an order in relation to Flores.
31The plaintiff placed reliance on the decision in Harris13 but it is a decision that very much needs to be considered on its own terms. In Harris, the plaintiffs, who were all social housing tenants, issued proceedings against the
Transcript 68, line 9
ibid
Commissioner for a breach of contract in connection with their residential tenancy agreements and in negligence, claiming loss and damage in the form of psychiatric injury or exacerbation of psychiatric conditions. The facts briefly stated were that a difficult and troublesome tenant was moved into the same block of flats as the plaintiffs, and over a period of time he was disruptive and his behaviour included threatening violence to his neighbours. The plaintiffs made multiple complaints to the Director of Housing, who followed up the complaints by undertaking home visits with the difficult tenant and issued multiple warnings and breach notices, but when the behaviour did not improve, the Director initiated a formal process to terminate the lease and this ultimately occurred and he was moved into different public housing.
32The plaintiffs in Harris did not plead a specific duty of care nor did they identify the scope of such a duty. Master Mossop however undertook the task of identifying various negligence arguments and held that a duty of care was not owed to the plaintiffs. He rejected the notion that the Commissioner owed the plaintiffs a duty of care as an occupier under the Civil Law (Wrongs) Act 2002 (the ACT equivalent to the Wrongs Act) or otherwise at common law. He found the Commissioner did not owe a duty of care as an occupier, and said that to do so would go beyond the duties of the Commissioner to ensure the safe physical state of a premises, and would require the Commissioner to use contractual powers (in the form of the tenancy agreement) to protect third parties from the behaviour of a tenant.
33Master Mossop applied five “salient features” he found necessary to have regard to in determining whether a duty of care existed on the part of the landlord to the tenant, and these features were “vulnerability”, “control”, “assumption of responsibility”, “reliance” and “statutory context”. Master Mossop found that the plaintiffs were vulnerable as they were public housing tenants and the evidence identified that the Commissioner was aware of the particular vulnerabilities of two of the plaintiffs. Nonetheless, the Master held
that neither their vulnerability nor the relationship of landlord and tenant put them in a special category such that a duty of care would be owed.
34In relation to the feature of “control”, the Master found that whilst there was a relationship between the Commissioner and the difficult tenant as landlord and tenant, and also that there was a degree of control arising from his status as a tenant, it was insufficient to justify the imposition of a duty of care, stating:
“The degree of control over John was limited to the contractual entitlements of the defendant under the lease. The degree of control was not such that on any particular occasion the actions of John could be controlled.”
35Furthermore, Master Mossop found that at no stage had the Commissioner assumed responsibility for protecting the plaintiffs from the disruption caused by other tenants. He found the only control assumed by the Commissioner was in relation to the physical state of the premises and that the Commissioner did not –
“… assume a responsibility to maintain the mental health of the plaintiffs or to ensure the absence of disruption by neighbouring tenants or other residence (sic) of the housing complex.”14
36Master Mossop dealt with the law relating to “reliance” and found there was not a situation of reliance –
“… . [e]ven recognising the difficulties that … [the plaintiffs] faced as a result of their personal circumstances, the problem of a disruptive neighbour was not one of the limited situations of complexity where they necessarily relied on the defendant to protect them from harm.”
37In regard to “statutory context”, Master Mossop found that it was not a case where the imposition of a duty of care would be inconsistent with a statutory duty to other persons, and he held that the Housing Assistance Act 2007 does not clearly support the existence of an extended duty of care, particularly noting the legislation referred to the resource constraints and the provision of public housing.
38Master Mossop, soon after the decision in Harris, had occasion to deal with a
Harris (ibid) at paragraph [33]
like proceeding following his elevation. In Meyers v Commissioner for Social Housing,15 his Honour was required to deal with a proceeding in which it was claimed that a duty of care was owed to a public housing tenant who was injured by dogs owned by a visitor of another tenant. His Honour found that there was no duty of care owed by the defendant to the lessor, based on the behaviour of another tenant or that of their visitors, and the same was not an established category of the relationship giving rise to a duty of care. He applied his reasoning in Harris and found that there was no duty of care owed by the Commissioner in relation to management of the tenants who had visitors with dogs, nor is there any duty of care owed in relation to the management of the lease.
The application of principle to the instant proceeding
39There seems to me to be a sensible caution to be had in taking too great the importance and application of the results in Harris and in Meyers because, despite the plaintiffs having been unsuccessful in both instances in making good a duty of care the Courts did so after a consideration and application of the salient features test in the context of contested hearings. Furthermore, the plaintiffs, whilst in one sense appearing more proximate to the defendants in both cases were arguably more remote given their status as tenants and hence the scope for liability arising from that relationship not being made out. I am not satisfied a sufficient reason has been shown in law that some or other considerations, or a combination of the salient features, could not be found to impose a duty of care on the defendant to the plaintiff to undertake the exercise of its powers earlier than it did. The plaintiff’s capacity to identify and seek the imposition of a duty of care is not one that depends on her relationship to the defendant as a tenant as was the position in both Harris and Meyers. The other elemental feature relied on by the plaintiff to argue the existence of a duty of care is that the defendant did engage with Flores and it acted in a manner with the plaintiff in mind as a result of the plaintiff’s many entreaties to the
[2018] ACTSC 193
defendant’s staff about Flores and that therefore the defendant had assumed responsibility for the plaintiff.
40I am not satisfied that the defendant has established that the plaintiff has no chance of success in the establishment of a duty of care owed by the defendant to her. A cursory and not determinative consideration of a number of factors relevant to the possible existence of a duty of care are illustrative of the potential obligation owed to the plaintiff.
eriliytbaeesefo lbaoneasR
41I am not satisfied that there is no chance of the plaintiff establishing that it was reasonably foreseeable to a person in the position of the defendant that harm may be caused to a person in the position of the plaintiff as a result of the granting by it of the tenancy to Flores and so be capable of giving rise to a duty of care. The properties were not both public housing units. The plaintiff, as I understand matters, owned her property freehold. It is arguable that in the current situation where the defendant owns or obtains housing for persons in need and places them in a residential mix with neighbours who are private owners and occupiers of land that such circumstances might demand of the defendant that the tenant selection process it utilises have some importance when considering any adverse impact on those in physical proximity.
rloCont
42It seems that the degree and nature of control able to be exercised by the defendant over the tenant was limited and that it could not control the tenant’s behaviour and was limited in the powers it could exercise. It seems to me that it might be relevant to consider what the evidence might reveal about the extent of the efforts made by the defendant to curb the tenant’s conduct and as to whether it did all that was reasonable on its part in all the circumstances.
minfriiliytbspones o optussA
43The plaintiff’s Amended Statement of Claim does not allege that the defendant was fixed with a duty of care because it assumed responsibility for her. Mr Carolan submitted this was an important consideration. If the existence of a
duty of care is determined by an examination of the salient features, then I would not disregard the enquiry or the potential relevance of this consideration as part of the plaintiff’s efforts to establish a duty of care at law.
liecnaeR
44Insofar as reliance is concerned, the defendant contended that criterion is not made out, either on the facts or as a matter of legal principle. As a matter of fact the plaintiff utilised and sought assistance by way of police intervention and also through the courts, but I am not satisfied on a determination of the matter by way of summons to dismiss, that this necessarily constitutes a basis to exclude the prospect that the plaintiff placed reliance on the defendant and here, too, the matter is one that leads to the trial being “fact rich” and hence not amenable to a characterisation as having no chance of success.
elefrilyrltirisontaedsonc navee lantepot eoth o cnaab Th
45It is not necessary for me to undertake an assessment of the other possible features that could be present and that might lead to the finding of the existence of a duty of care by the plaintiff but they include for example:
·the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant
·the nature of the activity undertaken by the defendant
·knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff
·the nature and consequences of any action that can be taken to avoid the harm to the plaintiff
·the existence of conflicting duties arising from other principles of law or statute
·consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and
·the desirability of, and in some circumstances, need for, conformance and coherence in the structure and fabric of the common law.
46It strikes me that the vice attendant on the defendant’s application is sufficiently evident on a perusal of these factors by reason that an assessment of them may tell in favour of no more than the conclusion that the defendant has a strong case to defend the plaintiff’s proceeding but not that the plaintiff’s proceeding has no chance of success.
47The operation of s 83 of the Wrongs Act is not a matter that assists the plaintiff or the defendant at this juncture and the language of the provisions relating to the existence for a duty of care owed by a public authority makes plain the task is an evaluative one to be considered against the non-exhaustive considerations specified. The place for such a determination to be made is at the trial. The statutory context in which the defendant is charged with discharging its obligations and responsibilities is also a matter for evaluation at trial.
linosucCon
48If I had acceded to the defendant’s application, the plaintiff’s claim would be dismissed and the prospects of her being able to prove her claim at trial would be doomed. An application for summary dismissal is an extreme measure and the courts have always recognised as much.
49I acknowledge that the law is reluctant to impose a duty of care when the breach is said to arise because of a failure to act as opposed to a negligent exercise of a power but that is not an absolute.
50Finally, I note that in Kuhl v Zurich Financial Services Australia Ltd,16 French CJ and Gummow J emphasised that when determining the existence of a duty of care, and its scope and content “… Those questions are determined by considering reasonable foreseeability and the ‘salient features’ of the
(2011) 243 CLR 361 at 373, paragraph [20]
relationship between the plaintiff and the defendant”. Recently John Dixon J, in Smith v State of Victoria,17 adopted a note of caution in the approach to applications to dismiss a cause of action. I have adopted a like approach.
51For the above reasons, I am not satisfied that the defendant has met the very high test for success under the CPA that the plaintiff has no chance of success at trial of establishing that the defendant owed her a duty of care.
52The defendant’s summons is dismissed.
- - -
0
5
0