Harris v Northern Sandblasting

[1995] QCA 413

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 120 of 1994
Brisbane
[Harris v. Northern Sandblasting]
BETWEEN:

NICOLE ANNE HARRIS (an infant by her next friend

PAMELA HARRIS) (Plaintiff) Appellant

AND:

BRIAN BRIGGS (First Defendant)

AND:

THE NORTH QUEENSLAND ELECTRICITY

BOARD (Second Defendant)

AND:

NORTHERN SANDBLASTING PTY LTD

(Third Defendant) Respondent

AND:

PHILLIP HARRIS and PAMELA HARRIS

(Second Third Party)

FITZGERALD P.
MCPHERSON J.A.

PINCUS J.A.

Judgment delivered 08/09/1995

SEPARATE REASONS FOR JUDGMENT BY EACH MEMBER OF THE COURT, FITZGERALD P. AND MCPHERSON J.A. CONCURRING AS TO THE ORDERS MADE, PINCUS J.A. DISSENTING.

1.          Appeal allowed with costs.

2.          Set aside the judgment for the third defendant with costs.

3. Leave to the plaintiff to amend her statement of claim by inserting in paragraph 3F the words “or alternatively s. 106(1)(a) of the Property Law Act 1974".

4.          Subject to application by the plaintiff within 21 days hereof to make that amendment, give judgment for the plaintiff against the third defendant for $1,204,429.82 together with the costs of the action including reserved costs.

5.          Orders made by the Trial Judge on 1 June 1994 with respect to the manner of payment of the damages by the first defendant are to apply mutatis mutandis.

CATCHWORDS:	NEGLIGENCE - landlord’s duty of care - Residential Tenancies Act - whether landlord is liable for injuries suffered on his property by persons other than tenants - foreseeability - causation - proximity - policy considerations
BREACH OF STATUTORY DUTY - s. 106 Property Law Act - landlord’s immunity from liability in tort
Counsel:	C.F. Wall Q.C. with him F.J. Toy for the Appellant J.G. Clifford Q.C. with him J. Webb for the Respondent
Solicitors:	Boulton Cleary & Kern for the Appellant O’Mara Patterson & Perrier for the Respondent
Date(s) of Hearing:	9 February 1995
IN THE COURT OF APPEAL	[1995] QCA 413
SUPREME COURT OF QUEENSLAND

Appeal No. 120 of 1994

Brisbane

Before Fitzgerald P.
McPherson J.A.
Pincus J.A.

[Harris & Briggs v. North Qld. Electricity Board]

BETWEEN

NICOLE ANNE HARRIS (an infant by her
next friend PAMELA HARRIS

(Plaintiff) Appellant

AND

BRIAN BRIGGS

(First Defendant)

AND

THE NORTH QUEENSLAND ELECTRICITY BOARD

(Second Defendant)

AND

NORTHERN SANDBLASTING PTY LTD

(Third Defendant) Respondent

AND

PHILLIP HARRIS and PAMELA HARRIS

(Second Third Party)

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 8th day of September 1995

The question to be determined is which of two innocent persons must bear the loss

brought about by the negligence of another. On 4 June 1987 the plaintiff, then nine years

old, suffered a severe electrical shock at the rented house where she was living with her

parents and brother. What she did was to turn off a tap in the garden at her mother's

request. She had no means of knowing that, because of the careless way in which an

electrician had repaired a hotplate in the kitchen stove, the tap was carrying a high voltage

electricity charge. She survives now without capacity for speech, thought, or independent

movement. Her life is shattered. It will probably not last many years more.

At the trial, judgment went against the first defendant electrician for more than

$1,000,000. For immediate purposes the precise figure does not matter. Satisfying a

judgment in that amount is, it may be supposed, well beyond his means. Hence this

appeal, which is brought against the judgment for the corporate third defendant dismissing

the plaintiff's claim against it.

Negligence. The third defendant owned the house, which on 12 December 1986

it let on an informal weekly tenancy to the plaintiff's parents. It played no other part in the

events leading to the injury apart from engaging the electrician to fix the stove. He was not

an employee or agent of the third defendant but an apparently competent independent

contractor. It is difficult to find fault with anything that the third defendant as owner and

landlord did or did not do. On appeal it was contended that there ought to have been a

practice of regular inspections of the domestic electricity system, which would have

revealed the dangerous condition it was in. The efficacy of such a practice would, however,

depend on the frequency and timing of any such inspections. The work on the hotplate was

done on 2 June 1987, which was only two days before the plaintiff sustained her injury.

Unless, therefore, it chanced that an inspection took place between those dates, it would not have averted the injury to the plaintiff. It is surely going too far to insist that there should

have been an inspection on every occasion after electrical work was done at the house by

an apparently competent tradesman. Equally, to insist on checking the electrical system

before the entry of each new tenant would have left the regularity of inspection dependent

on the frequency of tenant turnover. In any event the injury sustained by the plaintiff was not

the result of anything done by an earlier tenant but of the negligence of the electrician. No

evidence was given at the trial about the frequency with which electrical checks ought

properly to be carried out, nor indeed of the prevalence of any practice in the case of

rented accommodation of carrying out inspections.

Common law. If, therefore, the plaintiff is entitled to recover against the third

defendant, it can only be because in law a landlord is subject to an unqualified duty to

ensure that rented premises like these are fit for human habitation. It is beyond question

that at the relevant time the house did not satisfy that requirement. Its occupants were

plainly at serious risk of being killed or maimed because of the condition of the electrical

system and the garden tap. Although it was outside the house, the tap formed part of the

land leased. A lease of a "house" without more passes with it so much of the appurtenant

land as is necessary for convenient use, occupation and enjoyment of the house, and so

includes the surrounding garden or yard. See Thomas v. Bergin [1986] 2 Qd.R. 478,

where relevant authorities are referred to.

The real problem confronting the plaintiff in her action against the third defendant

stems from the reluctance of the common law to impose liability on a landlord for personal

injuries sustained through the defective condition of the premises. Unlike other civilised

legal systems going back to Roman times, the common law implied no obligation on the

part of a lessor of land to ensure that buildings on it were fit for their intended purpose. See Hart v. Windsor (1844) 12 M. & W. 68; 152 E.R. 1114. A year before, the Exchequer of

Pleas had in Smith v. Marrable (1843) 11 M. & W. 5; 152 E.R. 693, in a judgment also

delivered in that Court by Parke B., stated the landlord's obligation much more widely; but

the radical urge, never prominent in his Lordship, failed him at the last. In Hart v. Windsor

the earlier decision was confined to cases in which a house was let furnished and ready

for occupation, in which event a warranty was implied that it was fit for human habitation at

least at the commencement of the lease. The exception admitted by that decision has,

although at times not without difficulty, survived into modern times. See Collins v. Hopkins

[1923] 2 K.B. 617. Although not decisive, it has a potential relevance here because the

house let by the third defendant to the plaintiff's parents in the present case was partly

furnished at the time of letting. It included some items of furniture and it was intended for

immediate occupation.

One reason why at common law that factor is not decisive in favour of the plaintiff

is the decision in Cavalier v. Pope [1906] A.C. 429. There the plaintiff's wife was injured

when she fell through the rotten kitchen floor of a dilapidated house let to her husband by

the defendant. The report of the case in the court below ([1905] 2 K.B. 757, 761) shows

there was an express promise by the landlord to repair the floor, which he had failed to

carry out. Recovery was denied on what appears to have been two distinct grounds. One

was that the plaintiff was not a party to the tenancy agreement, on which her husband had

already successfully sued the defendant for his expenses arising from the plaintiff's injury;

the other was, or seems to have been, their Lordships' view that there was in law no

general duty 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. Adopting what was said by Erle C.J. in Robbins v. Jones (1863) 15 C.B. N.S. 221, 240; 143 E.R. 768,

776, Lord Macnaghten affirmed that, fraud apart, "there is no law against letting a tumble-

down house; and the tenant's remedy is upon his contract if any". Cavalier v. Pope [1906]

A.C. 428, 430.

Landlord’s immunity. The remarks on this point of Erle C.J. in Robbins v. Jones

were obiter, but the law was settled in those terms. In England the problem was partly

offset by legislation. In the United States and other places to which the common law was

carried, the landlord was treated as enjoying a general immunity from liability in tort for

personal injuries arising from the condition of the premises. See generally 49 Am.Jur. 2d

768; and 64 A.L.R. 3d 340 §3, at 344. The resulting state of affairs has evoked criticism

from textwriters and judges condemning the law in this area as a "scandal". See, for

example, Sargent v. Ross 308 A. 2d. 528, 530 (N.H.). Beginning in 1970, if not before,

and influenced by uniform residential tenancy legislation adopted at about that time in the

United States, courts in American jurisdictions have increasingly rejected the immunity

accorded to landlords, and substituted a general duty of care in favour of tenants and other

persons coming on leased premises with the tenant's consent. In California, the Court of

Appeal has gone so far as to hold that a person who leases dwellings is strictly liable in tort

for injuries resulting from latent defects in the premises : Becker v. I.R.M. Corporation 698

P. 2d 116 (1985); see also Muro v. Superior Court 229 Cal.Rptr. 383 (1986) where, in

excluding commercial premises from the ambit of that ruling, the Court explained its earlier

decision as assimilating "the modern residential tenant to the normal defenceless

consumer of manufactured products".

If the approach adopted in California represented the law in Queensland, the plaintiff

would succeed in this action and appeal. However, nothing resembling the same stringent

liability applies to manufactured products in this State. It nevertheless seems clear that the

immunity of the landlord from liability in tort formerly recognised in Cavalier v. Pope [1906]

A.C. 429 no longer prevails here. The decision in that case was rejected by the Full Court

of South Australia in Parker v. South Australian Housing Trust (1985) 41 S.A.S.R. 493,

as it has been in other common law jurisdictions, such as Ireland: Siney v. Dublin

Corporation [1980] I.R. 400; and, under the influence of local legislation, in various parts

of Canada: see Fleischmann v. Grossman Holdings Ltd. (1976) 16 O.R. 2d 746; Basset

Realty Ltd. v. Lindstrom (1979) 103 D.L.R. (3d) 654 (N.S. C.A.) and Zavaglia v. MAQ

Holdings Ltd (1983) 50 B.C.L.R. 204; affd. (1986) 6 B.C.L.R. 2d 286. Continued

recognition of the landlord's immunity runs counter to the steady trend of decisions, already

mentioned, in the United States : 64 A.L.R. 2d. 1238. In Australia it is essentially at odds

with the principles laid down by the High Court for determining the tortious liability of

occupiers to those who enter premises under their control, which is now governed by the

rules of ordinary negligence : Burnie Port Authority v. General Jones Pty. Ltd (1994) 68

A.L.J.R. 331, 334, citing Australian Safeway Stores Pty. Ltd v. Zaluzna (1987) 162 C.L.R.

479, 484-488. Since the decision in Donaghue v. Stevenson doctrines of privity of

contract have no place in the law of tort.

As regards the landlord's immunity from liability in tort, the ruling in Cavalier v. Pope

should, in my opinion, now be discarded in Queensland. Even so, it is not enough for the

plaintiff to show a general duty of care owing to her by the third defendant without also

establishing a breach of it. True, her presence on the premises was known to the third defendant through it directors or officers; but, in engaging an apparently competent

electrical contractor to repair the kitchen stove, there was no failure on its part to take

reasonable care for her safety. The plaintiff's case does not readily fall within any of the

hitherto established categories in which a particular relationship has been held to generate

a duty to "ensure that reasonable care is taken". The distinguishing mark of such a

relationship, which gives rise to a non-delegable duty of care involving liability for

negligence of independent contractors, is a special dependence or vulnerability on the part

of the person to whom such a duty is owed. Burnie Port Authority v. General Jones Pty.

Ltd (1994) 68 A.L.J.R. 331, 346, col. 1C. The plaintiff was a child, but, in respect of her

presence on the demised premises, her position did not differ from that of any other

individual, whether a member of the tenant's family or not, who resided in or visited the

house. She was no more vulnerable to the dangers or effects of electrical shock than they

were. More vigilant supervision would not have prevented the injury to her from taking

place. On that limited view of it, it might be difficult to regard her as the beneficiary of any

special duty of care.

Some reliance was placed on Francis v. Cockrell (1870) L.R. 5 Q.B. 184, and other

decisions in that tradition, holding an occupier liable for the negligence of an independent

contractor causing injury to a person who comes on premises pursuant to a contract with

the occupier. The decision may well have survived the extension to entrants on land of the

common duty of care : Calin v. Greater Union Organisation Pty. Ltd (1981) 173 C.L.R. 33;

but its precise rationale and perhaps even its ambit are somewhat obscure. See Watson

v. George (1953) 89 C.L.R. 409. According to Windeyer J., with whose reasons in Voli v.

Ingelwood Shire Council (1963) 110 C.L.R. 74, 91-93, Dixon C.J. and Owen J. agreed, the liability has its base in the analogy afforded by those who follow common callings, such

as carriers, innkeepers, and so on, whose liability at common law is strict. Although the

plaintiff may be said to have entered the premises pursuant to a contract made with her

parents, the letting of the house was very far removed from being a public business carried

on by the third defendant to which all comers were admitted on payment of a stipulated fee.

Although there are some obvious points of resemblance to the position of persons

entering premises pursuant to a contract, extending the principle of those cases to

members of a tenant's family would require more authority than this Court should, in my

opinion, presume to exercise.

Privity of contract. The other reason for the decision in Cavalier v. Pope remains

the most serious obstacle to the success of the plaintiff's claim. As landlord, the third

defendant impliedly warranted that the premises let, which were furnished, were fit for

human habitation. Even if the warranty extends for the duration of the letting and is not

confined to the condition of the premises at the point of entry, the plaintiff was not a party

to the tenancy agreement, which was made by the third defendant with her parents. She

is accordingly not entitled to sue on it. It was this point that proved fatal in the court below.

She cannot, in my opinion, be extricated from the difficulty it poses by invoking s.55 of the

Property Law Act 1974. What that section has in contemplation is a promise for the benefit

of a third person which, on acceptance by the latter, will bind (as well as benefit) that

beneficiary to the terms of the promise made in his or her favour. It is perhaps not quite

impossible to force the common law warranty implied in the case of a furnished letting into

a form which would fit s.55(3)(b) of that Act. The difficulty is, however, that acceptance by

the beneficiary is a prerequisite to the acquisition and enforcement by a third party of rights under that provision; and, although "acceptance" is defined widely in s.55(6)(a), there is

here naturally no evidence that the nine year old plaintiff ever knew of or accepted any

promise comprised in the implied warranty, or that she ever authorised her parents to

accept it on her behalf.

The ratio of the judgments in Trident General Insurance Co. Ltd. v. McNiece Bros

Pty. Limited, which involved a claim on an insurance policy, is in my respectful opinion not

sufficiently broadly expressed to be capable of assisting the plaintiff's cause in this case.

Although the form of policy in Trident does not appear from the reports of that case, it must

be remembered that traditionally a policy of insurance has assumed the form of a deed poll

under the seal of the insurer under which any "interested" person could and can sue without

being an executing party. See Sunderland Marine Insurance Company v. Kearney

(1851) 16 Q.B. 925, 939-940; 117 E.R. 1136, 1142. That is, of course, a critical difference

between a deed poll and an indenture or deed inter partes. See Norton on Deeds, 2nd

ed., at 29. In maintaining the right of the person intended to be indemnified under the terms

of that insurance policy their Honours do not seem to have been intending to overthrow the

doctrine of contractual privity in all is forms.

Statutory duty. In my view if the plaintiff can succeed at all, it can only be on the

basis that she sustained her injury through breach of a statutory obligation on the part of the

third party to keep the house in repair. In that regard, the plaintiff relied on s.7(a)(ii) of the

Residential Tenancies Act 1975. So far as material here the section provides:

"7. Implied obligations in tenancy agreement. 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 -
(i) to provide and, during the tenancy, maintain the dwelling-house in good and tenantable repair and in a condition fit for human habitation."

By s.5(1)(a) the Act applies to a "dwelling-house and tenancies of dwelling-houses", a term

defined in s.6 to mean "premises let for the purpose or principally for the purpose of

residence ... and land and appurtenances let with premises that are a dwelling-house".

On the face of it, these provisions applied to the house and to the tenancy of it in the

present case, which commenced on 12 December 1986. The lethal tap which produced

the plaintiff's injuries in June 1987 was plainly part of the "dwelling-house" or

“appurtenances” within s.6, and so attracted the obligation implied against the third party

as landlord to maintain it and the house itself, together with its electrical system, in a

condition fit for human habitation. If under Smith v. Marrable the warranty implied at

common law is limited to the condition of the premises at the inception of the lease, it is

nevertheless clear that the statutory obligation is not so confined. In s.7(a)(ii) it is stated as

being to provide "and, during the tenancy, to maintain" the dwelling house in good repair.

Two possible obstacles may prevent enforcement in favour of the plaintiff of the

obligation created in s.7(a)(ii) of the Act. One, which was not advanced by the third

defendant on appeal or at trial, is that there is authority in England for the view that, in the

case of a statutory obligation to keep in repair, liability on the part of the landlord does not

arise until notice of the defective condition has been given to the landlord. That result has

been arrived at by holding, first, that the statutory obligation operates as an implied

covenant in the lease; and then interpreting it in the same way as an express covenant in

a lease to keep in repair. The authorities, including McCarrick v. Liverpool Corporation

[1947] A.C. 219, which led to this result were reviewed by the House of Lords in O'Brien v. Robertson [1973] A.C. 912, but were considered by their Lordships to be too well

entrenched to be overruled. An earlier decision to contrary effect in Fisher v. Walters

[1926] 2 K.B. 315 had, over the years, apparently been passed by without being noticed

in later cases.

The practical result is to leave the tenant to bear losses arising from latent defects

in the premises. The English decisions tend to justify this approach on the footing that the

landlord cannot fairly be held liable for a defect of which he knows nothing, the more so if

the tenant himself was aware but did not give notice of it. In the United States the tendency

is say that a tenant who continues to occupy premises, without informing the landlord of a

defective condition of which he is aware, thereby assumes the risk of resulting loss, or at

least is contributorily negligent with respect to it. See 49 Am.Jur.2d §853. On either

approach, the risk of unforeseeable loss arising from undiscoverable defects remains with

the tenant, thus removing the landlord's liability from the realm of breach of contract or

warranty and returning it to the area of fault or negligence.

The other obstacle to the plaintiff's claim, which was the one specifically relied on

by the third defendant in this case, was that the obligation implied by s.7(a)(ii) takes effect

as a term of the tenancy agreement, to which, again, the appellant was not a party and so

was unable to enforce by action in her own name. It must be acknowledged that the form

in which s.7 and the Act as a whole is cast, taken with the decision in Ryall v. Kidwell &

Son [1914] 3 K.B. 135, does at some points lend colour to this contention. The obligations

referred to in s.7, as well as s.8, are expressed to be implied "in every tenancy agreement".

The expression "tenancy agreement" is defined in s.6 of the Act to mean "an agreement

between a landlord and a tenant for the letting of a dwelling house". The provisions of s.7 are therefore capable of being viewed as applying only where there is an agreement for

the letting. Moreover, where the tenancy agreement is written, the landlord or his agent is,

since the amending Act of 1991, required by s.6A to give the tenant a copy of it within 30

days of the date of the agreement. By contrast, where the Act sets out to regulate the

incidents of a tenancy independently of any tenancy agreement, it generally expresses itself

accordingly, as in ss.14, 15, and 17.

In Ryall v. Kidwell & Son [1914] 3 K.B. 135, the daughter of the tenant of a rented

house was injured when the leg of a chair on which she was standing to clean the windows

slipped into a hole in the floor causing her to fall. The weekly tenancy there was subject to

the Housing Act 1909, which by s.14 implied a condition of reasonable fitness for human

habitation in the case of certain specified houses. The Court of Appeal affirmed a decision

dismissing the plaintiff's claim, holding that the effect of the statute was simply to import into

the contract of letting a promise by the landlord to that effect, with the consequence that,

since she was not a party to it, she was on the authority of Cavalier v. Pope not entitled to

recover. In reaching that conclusion, the Court stressed the particular form of the

legislation, which contained a procedure for an order from the local authority requiring

repairs to be done after notice to the landlord, and for closing the house for human

habitation if the repairs were not effected within a limited time.

In particular, the legislation (which is set out at length in a note to the report of the

decision in [1913] 3 K.B. 123, 126-129) contained in s.15(1) a provision that the condition

as to fitness for human habitation shall "as respect contracts to which [s.14] applies take

effect as if the condition implied by that section included an undertaking that the house

should, during the holding, be kept by the landlord" in all respects reasonably fit for habitation. In the face of these provisions, especially the latter, the Court was persuaded

that the character of the obligation imported into the contract was, to use the language of

Lush J. ([1914] 3 K.B. 135, 143), "none the less contractual, although the contract in the

present case is derived from and owes its existence to a statute".

The opposite view has been taken in the three Canadian cases already referred to.

In Fleischmann v. Grossman Holdings Ltd. (1976) 16 O.R. 2d 746, the Landlord and

Tenant Act 1970; R.S.O. c.236, s.96, was held by the Ontario Court of Appeal to have the

effect of imposing a statutory duty of repair, breach of which gave rise to a civil action for

damages. The Ontario enactment was referred to by the Law Reform Commission as one

of the sources of s.106 of the Property Law Act. See Q.L.R.C. 16, at 18. The decision

mentioned was followed by the Appeal Division of the Nova Scotia Supreme Court in

Basset Realty Ltd. v. Lindstrom (1979) 103 D.L.R. (3d) 654, and also in Zavaglia v. MAQ

Holdings Ltd. (1983) 50 B.C.L.R. 204, affirmed (1986) 6 B.C.L.R. 2d 186, in which Ryall

v. Kidwell & Son [1914] 3 K.B. 135 was referred to but not followed. In this context the

decision of the Novia Scotia Court of five judges of appeal in Basset Realty Ltd. v.

Lindstrom is a particularly strong one. Section 6 of the Residential Tenancies Act 1970

(N.S.) considered in that case specifically provided that, where the relationship of landlord

and tenant existed in respect of a residential tenancy, "there shall be and be deemed to be

an agreement" between them that certain conditions should apply as statutory conditions

governing the residential premises, including, on the part of the landlord, keeping the

premises "in a good state of repair and fit for habitation during the tenancy". While

recognising that the statute clearly gave rise to a right of action in contract, the Court held that it was not so confined and that it accordingly did not exclude a right of action on the

statute.

Property Law Act, s.106. None of these decisions were cited to us on appeal,

although they are none the worse for that. Even if, despite them and following Ryall v.

Kidwell & Son, s.7(a)(i) of the Residential Tenancies Act 1975 (Qld.) is to be regarded as

effecting no more than the statutory insertion of a term into an existing contract between

landlord and tenant, the same cannot in my opinion be said of s.106 of the Property Law

Act 1974. It contains in s.106(1) the following provision:

"106. (1) In a lease of premises for a term of 3 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 language of the two statutory provisions is virtually identical. Their legislative history

is instructive. Following a recommendation of the Law Reform Commission (Q.L.R.C. 16,

at p.5), the coming into force of the Property Law Act 1974 was by s.1(2) deferred until 1

December 1975. Advantage was taken of the intervening period to improve the legislation

by amendments introduced by the Property Law Act Amendment Act 1975, which came

into force only three days before the principal Act. One of those amendments was the

substitution of a new s.106(1)(a) in its present form confining its application to premises

let for human habitation, the original provision having extended to 3 year leases of all kinds.

At almost the same time in 1975, the Residential Tenancies Act 1975 was also passed.

It set out to deal with residential tenancies as a single subject in a separate Act. Although

many of its sections simply repeat provisions of the Property Law Act 1974 (as amended), a repeal by implication of those provisions seems not to have been intended. Indeed,

s.5(1) of the Residential Tenancies Act 1975 contemplated that those provisions of the

Property Law Act 1974-1975 would, as from their commencement date on 1 December

1975, continue to operate, except to the extent provided in s.5(1) of the Residential

Tenancies Act.

As regards residential tenancies the corresponding provisions of each of the two

Acts are capable in some respects of having an independent or cumulative application

outside the limits of their common sphere of operation. By s.5(1), the Residential

Tenancies Act applies generally to tenancy agreements entered into before as well as

after its commencement. Both s.7 and s.106(1) are, it is true, confined to tenancies or

leases entered into after that date. Neither is capable of being excluded by agreement.

The obligation imposed under s.106(1)(a) is confined to "a lease of premises for a term

of 3 years or for any less period", whereas the corresponding obligation implied under

s.7(a)(i) extends to all residential tenancy agreements irrespective of duration. A rational

explanation for the difference is that the obligation implied by s.106(1)(a) was intended to

cater for “short” tenancies, including periodical tenancies, in which the tenant's

opportunities for inspecting and protecting himself or herself against defects in the

premises are necessarily limited. On this footing, the obligation implied by s.7(a)(i) may

be viewed as naturally taking effect as part of the contract between landlord and tenant,

whereas that imposed by s.106(1)(a) was designed to operate as a statutory duty

irrespective of agreement between the parties to the tenancy.

Such a distinction is consistent with the presence in s.7 of the expression "implied" and of the expression "in every tenancy agreement", which, as has been noted, is defined in s.6 to mean an agreement between a landlord and tenant. By contrast, in the case of

s.106(1), the relevant obligations are not stated to be "implied" in any "agreement", but

simply take effect in a "lease", which is defined in s.4(1) of the Property Law Act as

including "demise and tenancy whether for a term, for a period, or at will". The "lease"

referred to in s.106(1) is therefore capable of including a tenancy at will or a periodic

tenancy (like the informal weekly tenancy in the present case) arising by implication of law

apart from any agreement between landlord and tenant to that effect. See Hammond v.

Farrow [1904] 2 K.B. 332, 335, where, as Wills J. points out, a similar interpretation has

long been established under the Statute of Frauds. See also Helmore Law of Real

Property, 2nd ed., at 100; and Bradbrook McCallum Moore: Australian Real Property Law

§10.26, at 358. Of course, it may be that, because a periodic tenancy is considered as

progressively enlarging with each successive rental payment (Amad v. Grant (1947) 74

C.L.R. 327, 336), its duration may reach the point where s.106(1) ceases to apply to it. No

such question arises here, where the weekly tenancy had been in existence for less than

six months when the injury occurred.

It is now well settled that the criterion for determining whether or not there is a lease

is exclusive possession, even though the parties expressly provide that no lease is

intended. Radaich v. Smith (1959) 101 C.L.R. 209, followed in Street v. Mountford [1985]

A.C. 809, which was a case involving a residential tenancy. It may be for this reason that

s.106(1) uses the word "lease" rather than "tenancy agreement". The obligation imposed

by s.106(1)(a) is intended, independently of agreement on the matter, to apply to any

parting with exclusive possession of land for the purpose of human habitation which results

in a "lease" for 3 years or less. The obligation prescribed in s.106(1)(a) to provide and maintain the premises in a condition reasonably fit for human habitation thus attaches

whenever the relationship of lessor and lessee exists or is constituted under or in a "lease"

in the sense discussed. It may be contrasted with the immediately preceding s.105 of the

Property Law Act, where the obligation is identified in s.105(1) as being "implied", and in

s.105(2) as taking effect as a covenant. To that extent, s.105 resembles the condition

implied in the housing legislation considered in Ryall v. Kidwell & Son [1914] 3 K.B. 135;

but there is nothing in s.106(1) corresponding to the provisions in that legislation which

were held to give it a purely contractual character or operation.

Viewed apart from any contract or tenancy agreement, there is no sound reason for

approaching the obligation in s.106(1)(a) as if it embodied the terms of the conventional

express covenant to repair commonly found in formal leases, where the duty to repair

depends on notice first being given to the landlord. The operation of the obligation under

s.106(1)(a) is not qualified in that or any other way. There is nothing in the words of either

of the statutory provision capable of importing such a requirement. There is not here, as

there is in England, a settled course of authority of the kind that in O'Brien v. Robertson

[1973] A.C. 912 the court was, in the absence of legislative warrant to depart from it,

understandably reluctant to disturb.

Once it is accepted that, properly construed, s.106(1)(a) imposes on a landlord an

obligation which, according to its plain terms, requires the premises to be maintained in

a condition fit for human habitation, the problems confronting the plaintiff in her action

against the third defendant largely disappear. Putting aside arguments founded on

contractual privity means that the terms of s.106(1)(a) fall to be viewed as giving rise to a

statutory duty to maintain in repair. In accordance with general principles, a duty of that kind is, in a context like this, to be considered as conferring a private right of action for

damages for its breach. The question then is to identify the persons in whose favour it is

intended to operate. The tenant is obviously one such person; but to limit the right of action

to the tenant is simply to resurrect the reasoning based on contractual privity. Limiting the

right to those linked contractually to the landlord would mean that the statutory provisions

added little or nothing to the implied warranty already recognised by Smith v. Marrable in

1843.

That is not the view that has been taken of comparable legislation in other

jurisdictions. In Basset Realty Ltd. v. Lindstrom (1979) 103 D.L.R. (3d) 654, the

successful plaintiff was not the tenant himself but a five year old boy whose mother was

living with the tenant in a suburban house rented from the defendant. In giving the judgment

of the Appellate Division dismissing the landlord's appeal against a judgment for damages

for personal injuries caused when the plaintiff fell out of a defective attic window, Jones J.A.

said (103 D.L.R. (3d) 654, 666):

"The tenant and members of his household were clearly within the class of

persons intended to be protected by the statute ..."

In Altz v. Leiberson 134 N.E. 703 (1922) a similar view was taken of a New York statute

requiring tenement housing to be kept in good repair. In delivering the judgment of the

Court of Appeal, Cardozo C.J. said (at 704):

"We may be sure that the framers of this statute, when regulating tenement life, had uppermost in thought the case of those who are unable to protect themselves. The duty imposed becomes 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."

Two further matters call for attention. Inevitably it will be said that to hold the third defendant liable to the plaintiff in circumstances like these is to extend the liability of landlords for undetected defects to an endless range of potential plaintiffs. That is not so.

Under both s.7(a)(i) of the Residential Tenancies Act, and s.106(1)(a) of Property Law

Act, to say nothing of the common law, a landlord is already under a duty to tenants to

ensure that leased premises are in a condition fit for human habitation. The interpretation

favoured here simply applies that duty to members of the tenants' immediate family. The

question whether it would extend to visitors and friends coming on the premises may be

left, as it was in Zavaglia v. MAQ Ltd (1983) 50 B.C.L.R. 204, 212, for decision on another

occasion.

Policy considerations. On the other hand to exclude the tenant's children from the

protection of the statutory provisions would lead to arbitrary consequences that can best

be illustrated by reference to the circumstances of the present case. Here both the

plaintiff's parents were parties to the tenancy agreement. Each was therefore entitled to

the benefit of the statutory provisions. If it had been the plaintiff's mother who had turned

the tap off, she would have had a cause of action statutory or otherwise, in respect of the

injures cased by doings so. As it happened, she was talking to the plaintiff's father at the

time, and so she asked her daughter to attend to the tap. Her daughter the plaintiff was not

a party to the tenancy agreement. For obvious reasons children, especially young children,

never are. If that is so, it may be that they are specially vulnerable and so in need of

protection of the kind considered in Burnie Park Authority v. General Jones Pty. Ltd

(1994) 68 A.L.J.R. 331, 346 col. 1C, which entails liability for the negligent acts of

independent contractors. There is no other way in which they can receive the protection

needed for their safety. But I prefer the view that, in enacting s.7(a)(i) and s.106(1)(a), the

legislature must have had in mind the protection not only of those who chanced to become in law tenants of the premises let, but all members of the family who might reasonably be

expected to be living there. In the case of short leases for three years or less, the

underlying social policy is self-evident. Any other conclusion would mean that the

legislation had done little more than codify the law in the form it has been in since 1844.

It is true that in Basset Reality Ltd v. Lindstrom (1979) 103 D.L.R. (3d) 654, 666, there is

a passage which suggests that the statutory duty is limited to ensuring that the premises

are as safe as reasonable care and skill could make them. That corresponds to the

standard of care owed to contractual entrants under Francis v. Cockerell (1870) L.R. 5

Q.B. 184 as interpreted in Maclennan v. Segar [1917] 2 K.B. 325. For my part, I cannot

see that it makes any difference to express the duty in that way. The house here was not

as safe as reasonable skill and care could make it. In Francis v. Cockerell liability

attached to the occupier even though the plaintiff's injury resulted from the negligence of an

apparently competent independent contractor engaged by the occupier to construct the

grandstand. If the extent of liability corresponds with that of the common callings, it is

qualified only by exceptions for acts of God and the King's enemies, inherent vice, and

default of the plaintiff himself. None of these is a matter relevant to the third defendant's

liability in the present case. However, the statutory provisions should in my opinion be

approached in accordance with their plain words and ordinary meaning, free of any pre-

disposition to maintain the traditional immunity of landlords at common law. So read and

understood, they confer a right of action for breach that is available to the plaintiff in the

present case.

Fortified by the Canadian and Americans referred to earlier, I would be prepared to hold that the plaintiff is entitled to succeed in reliance on the obligation implied by s.7(a)(i) of the Residential Tenancies Act 1975. I continue to think, however, that

s.106(1)(a) of the Property Law Act 1974 presents a less controversial basis on which to

found a judgment in her favour. The amended statement of claim in paras. 3C to 3G allege

a duty in the statutory terms to maintain the subject premises in a condition fit for human

habitation and the breach of that duty. In doing so, para. 3F refers specifically to s.7(a) of

the Residential Tenancies Act, but not to s.106(1)(a) of the Property Law Act. Despite an

invitation issued in the course of hearing the appeal, nothing has been suggested by the

third defendant to persuade me that allowing an amendment to include a reference in para.

3F to s.106(1)(a) would take the third defendant by surprise, or would have affected the

third defendant's defence of the action, or the way in which it was conducted at the trial.

Here the material facts are all alleged, "and in these days so long as the facts are alleged,

that is sufficient for the Court to proceed to judgment without putting a particular legal label

upon the cause of action". Shaw v. Shaw [1954] 2 Q.B. 429, 441.

Lord Denning was there speaking of a case in which the plaintiff's claim was on

appeal presented for the first time as one of breach of an implied warranty on which she

ultimately succeeded. The present case is in that respect at least as strong as Shaw v.

Shaw. Indeed, the plaintiff would be entitled to succeed in reliance on s.106(1)(a) by

amending the statement of claim so as simply to omit the words "by section 7(a) of the

Residential Tenancies Act 1975" that appear in para. 3F, leaving the allegation in that

paragraph in other respects to stand in a form capable of attracting either or both of the two

relevant statutory provisions. It may nevertheless be preferable to put the matter in para.

3F beyond doubt by inserting an express reference to s.106(1)(a) of the Property Law Act

1974. It is true that the limitation period of three years applicable to actions for damages

for personal injures expired some three or four years ago. But the cause of action under

s.106(1)(a), although having its source in a separate statutory provision, arises out of

precisely the same facts as the cause of action under s.7(a)(i) in respect of which relief has

already been claimed by the plaintiff. In those circumstances the Court has ample power

under O.32, r.1(6), which is exercisable by this Court on appeal under O.70, r.10, to allow

such an amendment despite expiration of the three year limitation period.

On application by the plaintiff, within 21 days of delivery of this judgement, to make

an appropriate amendment to para. 3F of the statement of claim and on the amendment

being made, I would allow the appeal with costs, set aside the judgment in favour of the

third defendant, and give judgment for the plaintiff against the third defendant for the

amount assessed of $1,204,429.82, together with the costs of and incidental to the action

including any reserved costs. I would also order that the judgment sum be satisfied by

paying to the Public Trustee of Queensland the balance remaining after paying to the Northern Regional Health Authority and to the next friend Pamela Harris the sums specified

in the judgment appealed from and the amount of any further statutory refunds established

and discharged by the third defendant.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 120 of 1994.

Brisbane

Before Fitzgerald P.
McPherson J.A.
Pincus J.A.

[Harris v. Northern Sandblasting P/L]

BETWEEN:

NICOLE ANNE HARRIS (an infant by her next friend PAMELA HARRIS)

(Plaintiff) Appellant

AND:

BRIAN BRIGGS

(First Defendant)

AND:

THE NORTH QUEENSLAND ELECTRICITY

BOARD

(Second Defendant)

AND:

NORTHERN SANDBLASTING PTY LTD

(Third Defendant) Respondent

AND:

PHILLIP HARRIS and PAMELA HARRIS

(Second Third Party)

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 08/09/1995

The primary judge held that an electrician, Mr Briggs, was guilty of negligence causing injury to the plaintiff, an infant child living with her parents in a house let to them by the respondent company. Statute law, set out below, imposed on the landlord an obligation

to maintain the house "in a condition fit for human habitation"; it was not in that condition

when the plaintiff was injured, in that touching a tap in the garden produced an electric

shock, grievously injuring the plaintiff. This was due to negligent work by Mr Briggs,

combined with the potentially dangerous condition of the "neutral link", part of the earthing

installation at the house; the latter condition was also due to negligence, but it is not known

who was at fault. The judge held that the landlord was not itself negligent and this

conclusion is challenged; that aspect of the matter is dealt with towards the end of these

reasons, under the heading "Other Issues" and my conclusion is that the judge's finding

should be upheld.

What is principally in issue, in my view, is whether the landlord is liable in tort for the

child's injury, although not itself at fault; the argument is that the landlord must take

responsibility for the loss caused by the negligence of Mr Briggs, an independent

contractor. It is, in substance, common ground that the landlord owed the plaintiff a duty of

care, but the nature of that duty is in dispute: counsel for the plaintiff argued that the duty

was a non-delegable one, and if that is accepted, then the landlord is liable as if it had itself

undertaken the work which was negligently done by Mr Briggs, causing the injury to the

plaintiff. The legal issue may be stated with varying degrees of generality; all that is

absolutely necessary to decide is whether the landlord has a non-delegable duty, in respect

of the safety of the premises, to a member of the tenants' family residing with the tenants.

But it is difficult to see why one would stop at that point and the duty, if it exists, must surely

extend at least to anyone living in the rented house with the tenants and presumably also

to people who come to the house as guests of the tenants. Authoritative statements of the circumstances in which a non-delegable duty exists are to be found in Kondis v. State

Transport Authority (1984) 154 C.L.R. 672 and in Burnie Port Authority v. General Jones

Pty Ltd (1994) 179 C.L.R. 520. The pertinent passages, which are set out in the reasons

of the President, require some analysis, undertaken below; but it is convenient first to

mention a topic which seems closely related to that of the duty of a landlord to persons who

are on the tenanted premises with the consent of the tenants, which is the broad category

into which the current case may be placed.

Watson v. George

The High Court in Watson v. George (1953) 89 C.L.R. 409 examined the effect of

a number of authorities relevant to the obligations of a boarding house proprietor to a

paying guest; the analogy with the present case is close, except that the plaintiff here had

not the benefit of any contractual obligation. Fullagar J, with whom Kitto J agreed,

accepted as correct a view of the law expressed in Maclenan v. Segar [1917] 2 K.B. 325

at 332-333, qualifying what was said in Francis v. Cockrell [1870] L.R. 5 Q.B. 501. The

relevant passage (at p. 424 of the reasons of Fullagar J) is to the effect that the occupier's

duty towards a contractual entrant includes a warranty "that the premises are as safe for

[the contractual] purpose as reasonable care and skill on the part of any one can make

them". The passage continues that the rule is subject to a limitation which does not assist

the landlord in the present case, namely that:

" . . . the defendant is not to be held responsible for defects which could not have been discovered by reasonable care or skill on the part of any person concerned with the construction, alteration, repair or maintenance of the premises . . . "

The obligation is expressed to be such that -

" . . . it matters not whether the lack of care or skill be that of the defendant

or his servants, or that of an independent contractor or his servants . . . "

It was argued in the present case that the statutory obligation, further discussed below,

extends to protect not only the tenants, but some others in a category which includes

members of the tenants' family residing with them. In my view the statute is not so

expressed as to protect this plaintiff, nor does the law permit the Court to make, by

interpretation, what might be suggested to be a reasonable extension of the statutory

protection so as to enable this plaintiff to succeed. But when one is considering duties

imposed by the general law, as opposed to those which are prescribed by statute, there

is perhaps more flexibility; that Watson v. George, which is still binding on this Court, is

authority for the view that the general law imposes a non-delegable duty in favour of the

contractual entrant provides encouragement to hold that there is a non-delegable duty of

care, not only in favour of a boarder, but also in favour of a tenant and in favour of, if not all

those who come to the premises with the tenants' permission, at least members of the

tenants' family residing on the premises.

In Calin v. Greater Union Organisation Pty Ltd (1991) 173 C.L.R. 33, a case

concerning liability for injury to a cinema patron, a question arose whether Watson v.

George should still be followed; the Court declined to hold that it had been overruled, but

did not explicitly reaffirm it, deciding Calin on the assumption that -

" . . . notwithstanding the applicability of the ordinary duty of care of the law of negligence, a contractual term to the effect suggested on behalf of the appellant can be implied from the sale and purchase of the cinema tickets. " (38)

The reason for the Court finding it unnecessary to decide whether Watson v. George should

be taken to be overruled was that the judge's direction to the jury which was attacked in that case was held to be one which was, in the particular circumstances, substantially as

favourable to the appellant plaintiff as a direction in terms of Watson v. George would have

been. And the reason for the apparent doubt as to whether Watson v. George still holds

sway was that, as the Court pointed out, it is now unnecessary to determine, in an action

for negligence against an occupier, whether a special duty is owed to a particular class of

entrant, such as a contractual entrant: Australian Safeway Stores Pty Ltd v. Zaluzna (1987)

162 C.L.R. 479. What the Court said in Calin was not particularly helpful to the plaintiff

here; it tended to treat Watson v. George, and Francis v. Cockrell which Watson v. George

explained, as dealing with a question of implications in a contract and as not being relevant

to the duty in tort. Commenting on the problem, Dr Balkin and Professor Davis suggest in

their work "Law of Torts" that it is more likely that "the principle of non-delegable duties will

be replaced in favour of examining each case on an individual basis" rather than that such

a duty may now be owed to all entrants (810, 811).

The conclusion, then, is equivocal: Francis v. Cockrell and Watson v. George by no

means provide a clear justification for holding that the non-delegable duty owed to a

contractual entrant extends to one such as the plaintiff.

Non-delegable Duties - General Principles

The authorities referred to by the President contain an explanation of the basis upon

which it may be held that in certain circumstances there is a non-delegable duty, in the

sense that the landlord will be held liable if an independent contractor engaged to do work

on the premises acts negligently, thereby causing injury to one such as the plaintiff, there

being no negligence on the part of the landlord. It is necessary to keep in mind that the issue is not whether the landlord had a duty of care extending to the plaintiff; that was in

substance conceded. It is the existence of a duty of this special type, one creating in effect

strict liability, which is in question. And the basis on which the matter must be discussed

is that the landlord has, in relation to the selection of Mr Briggs to do the work, acted

properly.

If one is considering the matter broadly, it is necessary to keep in mind that in the

practical case the landlord will not necessarily have anything to do with engaging a

tradesperson. Often the landlord, particularly of residential premises, engages an agent

who looks after matters of this sort, getting any necessary repairs or maintenance done;

the landlord may not even be asked to approve proposed work unless it is of a major kind.

So that the question may be whether the landlord is to be held liable for the actions of an

independent contractor of whose existence he or she becomes aware only when the next

account comes in from the agent.

This factual consideration is made relevant by the reference in Burnie, in the

passage set out in the President's reasons, to the notion of "central element of control".

It was there pointed out that usually where the non-delegable duty arises the defendant

"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 relationship

for his or its safety" (179 C.L.R. at 551). It was said that it is convenient to refer to that

common element as "the central element of control" and it is necessary to note that the

control exercised by the landlord may, even in relation to commercial as opposed to

residential rentals, be of rather a remote kind; the tenant may well have a greater

opportunity of determining whether anything needs to be done to make the property safe
than has the landlord.

In Burnie the court went on to say in effect that the plaintiff is likely to be in a position

of "special dependence or vulnerability" (551). That expression fits the plaintiff, an infant,

who was entirely dependent on the efforts of others to ensure safety in situations of the kind

which occurred. But, agreeing with the President on this point, I would not hold that there

is a non-delegable duty towards only some members of the tenants' family, such as children

and other persons unable to care for themselves as adults ordinarily do. It does not seem

likely that the non-delegable duty, if it exists, can be as narrowly based as that.

To return to the expressions used in Burnie, the first leg of the formula is, it will be

noted, that the defendant must have "undertaken the care, supervision or control of the

person or property of another". Those expressions are not, reading them literally,

applicable here, but it must be said in favour of the plaintiff that the defendant has

responsibility, of a statutory kind, for the safety of property on which the plaintiff resides.

The second part of the expressions used focuses attention on the assumption of

"particular responsibility" for the safety of the plaintiff; at least in the present case, to say

that such responsibility has been assumed conveys little information other than that there

is a relationship creating the relevant duty; it is not really explanatory. I appreciate that the

passage I have discussed from Burnie was not expressed to be definitive of the scope of

non-delegable duties, but it was surely intended to provide guidance.

The likelihood that the landlord has insurance against such an eventuality as

occurred here is a policy consideration in favour of the plaintiff. There was no evidence as

to whether landlords ordinarily insure against such liability or, on the more relevant point,

as to whether landlords of small residential properties ordinarily do so. One might expect that prudent landlords would have done so, at least since the imposition of the statutory

obligation I have referred to, in 1975. But in my view the presence of insurance, proved or

merely assumed, is not a very strong reason for holding that there was a liability to which

the insurance attached.

No other policy consideration of any weight can in my view be discerned, either for

or against liability in the defendant. It is desirable that landlords with the responsibility for

repair be kept up to the mark, but as Mr Clifford Q.C. who led for the respondent pointed

out, if the landlord is to be held liable for bad work of tradesmen whether or not he or she

takes care, a landlord might not have a pressing incentive to take trouble about such

matters and might rather be inclined simply to rely on insurance. It appears that some

landlords may well be more likely to be able, even if uninsured, to meet a judgment than a

tradesperson is; but that seems a poor ground on which to hold all landlords liable. Then

it has to be kept in mind that the effect of now holding that the landlord's common law duty

to keep the premises safe is absolute is akin to legislating in a retrospective way.

Accidents which occurred years ago may now become a source of, perhaps, ruinous

liability.

To come back to Australian Safeway Stores, one finds there the law stated,

unequivocally, that the duty of the occupier towards entrants upon the land is one "to take

reasonable care to avoid a foreseeable risk of injury" and that:

" The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk. " (162 C.L.R. at 488)

It would be hardly consistent with those statements of the law to hold that the occupier's duty is in general non-delegable, that even if all reasonable care is taken the duty may be held

not to be discharged because a person competently chosen happens to act negligently.

It is difficult to see any reason in principle why a landlord, not being an occupier, should be

subject to a non-delegable duty towards persons on the property in circumstances where

no such duty would fall on the occupier. The landlord is less, not more, likely than an

occupier to have real knowledge of and opportunity to avoid dangers to persons on the

property.

I conclude that the landlord's duty towards persons other than the tenant, present on

the tenant's premises, is not in general one of a non-delegable kind; here, there are no

circumstances, such as a particular danger which should have been expected to arise from

the repair of the stove which Mr Briggs undertook, to give rise to what might be called a

special non-delegable duty in the landlord.

Other Issues

As foreshadowed, it is necessary to deal with the argument that, contrary to the

judge's view, the defendant landlord was guilty of negligence. It was put that it was

negligent on the part of that defendant not to make such an inspection of the property as

would have revealed the existence of the defect in the neutral link, part of the earthing

system explained in the reasons of the President.

The argument faces a number of difficulties. One is that the defendant landlord

owned the property for only three years before the injury to the child and at the time of

purchase the North Queensland Electricity Board made an inspection. For the plaintiff to

succeed in obtaining a finding of negligence here, it would have to be held that either in general or in the particular circumstances of this case, it is negligent to fail, within a three

year period, to make a more thorough inspection than the Electricity Board thought at the

time of the landlord's purchase to be appropriate. Had there been evidence from a person

with appropriate expertise that good practice necessitated an inspection, of such a kind

as to discover the fault in the neutral link, the argument for the plaintiff on this point might

have had some substance; but there was no such evidence. There was not any indication

of a fault in the neutral link, before the incident which caused the plaintiff's injury; if there

was such an indication it would have been likely to have come to the knowledge of the

tenants before the landlord knew of it. This Court should not reverse the trial judge's

conclusion, given after a laudably careful and comprehensive review of the nature of the

case, on the question of the landlord's own negligence.

It was also suggested on behalf of the plaintiff that the obligations imposed by s. 7

of the Residential Tenancies Act 1975 should be held to apply in favour of the plaintiff.

Section 7 reads in part as follows:

" 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.
. . . "

It was not, with respect, made clear by what process of reasoning this provision could be

made to protect the plaintiff, nor how widely the category of persons protected should be

held to extend. Section 7 implies obligations in an agreement made between the tenant

and the landlord. It must have been obvious to the legislature that persons other than the

tenant might well have an interest in performance of the obligations dealt with by s. 7 and especially those relating to safety: members of the tenants' family residing on the

premises, invited guests, people coming to the premises on business and perhaps others.

It was apparently thought sufficient to insert an obligation in the contract and, whether or

not one thinks the method adopted to have been well conceived, the statute's effect is clear

enough.

Then it was argued that under the general law the plaintiff was entitled to sue on the

contract, or at least on the relevant part of it. The argument was not developed and I have

been unable to find a basis on which it could be supported.

Since writing the above I have read the reasons of McPherson JA and note that his

Honour deals with the question of basing the plaintiff’s suit on a breach of the obligation

created by s. 106(1)(a) of the Property Law Act 1974; his Honour is of the view that after

an appropriate amendment it should be held that s. 106(1)(a) has been breached and that

members of the tenants’ family (and in particular the plaintiff) may recover damages under

that section. His Honour leaves open the possibility that the protected class might

ultimately be held to include other than the tenants’ family. Presumably this could bring in

people other than the family living, for consideration or not, on the premises, as well as

invited guests and people coming to the premises on business.

I am in respectful disagreement with his Honour’s view. There is perhaps a

question whether both or only one of s. 7(a)(ii) of the Residential Tenancies Act 1975 and

s. 106(1)(a) of the Property Law Act 1974 apply to residential tenancies. The former

imposes an obligation on the landlord to "provide and . . . maintain the dwelling house in

good tenantable repair and in a condition fit for human habitation"; the latter uses rather similar language except that there is no reference to repair and the expression is "condition

reasonably fit for human habitation". It seems improbable that the legislature would have

desired that both of these provisions, worded similarly but not identically, apply to tenancies

of dwelling houses; the intention appears to have been to set out, in the 1975 Act, a

comprehensive statement of the implied obligations of the landlord and of the tenant in

tenancies of dwelling houses, rather than to oblige landlords and tenants to attempt to

piece those obligations together by a scrutiny of s. 7 of the 1975 Act and ss. 105 and 106

of the 1974 Act.

But I shall proceed on the assumption that the legislative intention, inconveniently,

was the latter and I shall treat s. 106 of the 1974 Act as applicable to the tenancy here in

question. The problem then is whether, on its proper construction, s. 106(1)(a) produces

a right of action in members of the tenants’ family for breach of statutory duty, i.e. simply

for breach of the obligation it creates, as opposed to a right of action on the obligation

treated as part of the lease; the latter could be availed of only by tenants. The statutory

context in which the provision occurs is of assistance; each of s. 105 and 106 creates

obligations as to the maintenance and repair of the premises. I will not set the provisions

out in full, but will state their effect in a general way. The first such obligation is that in s.

105(b) which obliges the tenant, in the cases to which it applies, to keep and yield up the

premises in good repair; the second is that which is in question here, namely an obligation

on the part of the landlord, in the cases to which it applies, to maintain the premises in a

condition reasonably fit for human habitation; the third is an obligation on the part of the

tenant, created by s. 106(1)(b)(ii), to repair damage "caused by him or by persons coming

on the premises with his permission". Presumably - the point does not arise here - the second obligation should be treated as qualified by the third, so that the landlord is not

obliged to maintain the premises in the stated condition insofar as the necessity for

maintenance is brought about by the tenant or his invitees.

It is thus seen that in this group of provisions there are three obligations created as

to the state of the premises, two placed on the tenant and one on the landlord. The

obligations apply as I have mentioned in different situations, but on the face of it there is no

strong reason to think that the consequences of breach in one case were intended to be

much different from the consequences of breach in another. For example, if it is right that

a breach of the landlord’s obligation under s. 106(1)(a) gives rise to a statutory cause of

action in persons not parties to the lease, one would expect that the same cause of action

should arise in relation to the other repair obligations - in particular the obligation on the

tenant, in s. 106(1)(b)(ii); a landlord’s agent might perhaps be thought to be within the

category of persons likely to be injured if the tenant fails to repair in the way contemplated

by s. 106(1)(b)(ii).

Some light may be thrown on the proper construction of s. 106 by considering the

provisions of s. 112, which deals among other things with the quantum of damages for

breach of an obligation to "keep or put premises in repair during the currency of a lease".

There is a question as to which of the statutory repair obligations is caught by s. 112. The

intention of that section appears to have been to deal with not only contractual, but also

statutory obligations to repair; but it appears to apply to tenants’ breaches only. That is,

s. 112 is I think applicable to the obligations in s. 105(b) and those in s. 106(1)(b) only. The

effect of s. 112 where it applies is to limit damages, for breach of tenants’ obligations to repair, to the diminution of value of the reversion and this makes it impossible to hold that

s. 106(1)(b)(ii) can have been intended to create a right of action in persons other than

parties to the lease; the only contemplated plaintiff is the landlord. This conclusion

somewhat reduces the likelihood that the proper interpretation of s. 106(1)(a) is such as

to enable persons other than a tenant to sue for breach.

It is true that the word "obligation" appears in s. 106 without being preceded by

"implied", giving some substance to the suggestion that it was not intended that a breach

of the obligation should be treated, in determining the remedy, as if the obligation were one

included by the parties in the lease. But the omission of that word does not, as it seems

to me, form a secure foundation for treating s. 106(1) as intended to create causes of

action in classes of persons to be defined, rather than merely to put an obligation in the

lease of which the tenant might take advantage, as if it had been put there by the parties.

The reason for the omission from s. 106 of "implied", which one finds in s. 105, is probably

that s. 106 puts an obligation in the lease irrespective of agreement, rather than that s. 106

creates a special cause of action.

According to Prof. Trindade and Mr Cane in their work "The Law of Torts in

Australia" 2nd Ed. at 665 " . . . Australian and English Courts have been unwilling, outside

the area of industrial safety, to interpret statutes as impliedly providing for damages actions

even where the damage likely to be suffered was personal injury or property damage".

See also Prof. Fleming’s work, 8th Ed. at 128; there the point made is, in effect, that the

conclusion that a breach of a statutory obligation gives rise to an action as for breach of

that duty is less easily come to where the statute "merely enjoins the ends and not the

means"; that applies to this case. Modern instances can be found in which legislation

other than for the benefit of employees has been held to create an action for breach of

statutory duty, but they do not appear to be common. An example is Maceachern v.

Pukekohe Borough [1965] N.Z.L.R. 330; there, T A Gresson J. came to the conclusion that

"it was not unreasonable for Parliament to be deemed to have intended to impose civil

liability"; that intention accorded with "the whole scheme and purpose" of the relevant Act.

Here, on the other hand, the intention of making the landlord the insurer of the personal

safety of an undefined class of persons, insofar as they might be placed at risk by defects

in premises let by short leases for residential purposes is not, in my respectful opinion, a

reasonable one to attribute to the legislature. Had that been proposed specifically to the

legislature, one might have expected interested members to inquire whether it was fair to

leave the insured class undefined; why the obligation should apply (whatever the parties’

agreement) to leases for so substantial a period as three years; and, if it was reasonable

to impose the absolute obligation to compensate persons in the undefined class, why it

should not extend to others providing premises for human occupation, such as the keepers

of hotels, motels, caravan parks and boarding houses.

I would dismiss the appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 120 of 1994
Brisbane
Before	Fitzgerald P. McPherson J.A. Pincus J.A.

[Harris v. Northern Sandblasting]

BETWEEN:

NICOLE ANNE HARRIS (an infant by her next friend

PAMELA HARRIS) (Plaintiff) Appellant

AND:

BRIAN BRIGGS (First Defendant)

AND:

THE NORTH QUEENSLAND ELECTRICITY

BOARD (Second Defendant)

AND:

NORTHERN SANDBLASTING PTY LTD

(Third Defendant) Respondent

AND:

PHILLIP HARRIS and PAMELA HARRIS

(Second Third Party)

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 08/09/1995
The appellant was tragically hurt on 4 June 1987, when she was nine years of age. She was

electrocuted when she commenced to turn off a tap at her mother's request in the garden of

the family home. As a result, she suffered severe brain damage, which reduced her to a

vegetative state, without understanding or awareness and capable only of coarse responses

to stimuli.

The appellant's parents did not own the premises where they lived with their family and the

accident occurred; the owner was the respondent company. It had purchased the property in

July 1984, at which time the local electricity supplier, The North Queensland Electricity

Board, had inspected the premises. Further, in November 1986, the refrigerator and stove

in the premises were checked and repaired by the respondent’s electrical contractor. The

appellant's family commenced to occupy the house on about 12 December 1986, under an oral

tenancy agreement between the respondent and the appellants’ parents providing for rental

of $100 per week; the evidence did not disclose how long the tenancy was to continue, or how

often rental was to be paid. At the time the tenancy commenced, the premises were partly

furnished and intended for immediate occupation. The appellant was known to the respondent,

which was owned and controlled by the appellant’s aunt and her husband.

Two days prior to the appellant’s accident, her mother informed the respondent that the stove

did not work, and the respondent engaged its usual electrical contractor, Briggs, to carry out

the repair, which he did. The task was simple, but he carried it out negligently. On the

occasion when the appellant was injured, a short circuit occurred in the stove. That would have caused the fuse for the stove in the domestic switch-box to blow immediately if the

general earthing safety system of the house was working correctly, and, in that event, the

current to the stove and the short circuit would have instantly ceased. However, the effective

operation of the general earthing safety system depended upon a link in the domestic switch-

box between the major earthing-wire and a neutral wire; because the major earthing-wire was

not properly connected to the link with the neutral wire, the general earthing safety system

was inoperative.

As in many houses, there was an alternative safety mechanism which would also have caused

the stove fuse in the domestic switch-box to blow if it had been operating effectively. The

major earthing-wire was connected to the water-pipe system in the ground, and a neutral wire

on a nearby power pole was connected to a metal peg in the ground near the power pole;

provided that the soil between the two points on the ground acted as a suitable conductor, the

current would have passed to the neutral wire, which would have resulted in the blown fuse.

However, in this instance, as sometimes happens, the soil had a high resistance and was a

poor conductor.

The entire water-pipe system, including the garden tap, became electrically alive as a result

of the short-circuit in the stove. When she touched the tap, the appellant was standing on wet

grass with bare feet, and the electrical current passed through her body to the ground.

The trial judge awarded the appellant substantial damages against the electrician, Briggs, and

there is no appeal by either party in relation to that judgment. His Honour dismissed the appellant's claim against The North Queensland Electricity Board, and again there is no

appeal. However, the appellant has appealed from the dismissal of her claim against the

respondent.

Breach of statutory duty

Sub-sections 7(a)(ii), (iii) and (iv) of the Residential Tenancies Act 1975 were at the forefront

of the appellant's primary submission; she argued that the respondent's breach of the

Residential Tenancies Act in itself entitled her to damages for her consequential injuries.

It is not in dispute that the agreement between the appellant’s parents and the respondent

with respect to the premises where the appellant was injured was a tenancy agreement with

respect to a dwelling-house within the meaning of the Residential Tenancies Act, or that sub-

ss. 7(a)(ii), (iii) and (iv) of that Act applied in relation to that tenancy. Those provisions

provide:

“7. Implied obligations in tenancy agreement. 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;
(iv)	to comply with all lawful requirements in regard to health and safety standards with respect to the dwelling-house;

...”

To make good her claim on the basis of breach of statutory duty, it would be necessary for the appellant to establish that those provisions of the Residential Tenancies Act conferred on her

a right to have the respondent perform duties under that legislation: Northern Territory of

Australia v. Mengel (1995) 129 A.L.R. 1, at p. 16 per Mason C.J., Dawson, Toohey, Gaudron

and McHugh JJ. However, as the appellant acknowledged, the legislative provisions upon

which she relies appear only to imply obligations on the part of a landlord into its tenancy

agreement with the tenant: cf. ss. 14, 15 and 17.

The appellant nonetheless claimed contractual rights in respect of the respondent’s

obligations under sub-ss. 7(a)(ii), (iii) and (iv) of the Residential Tenancies Act on the basis

of ss. 13 and 55 of the Property Law Act 1974 and/or the principles enunciated by the High

Court in Trident General Insurance Co Ltd v. McNiece Bros Pty Ltd (1988) 165 C.L.R. 107.

Notwithstanding that it was not pleaded, I have given some consideration to that claim, but

can find nothing to support a conclusion that the respondent's obligations conferred

contractual rights on the appellant as a family member of the tenants.

As I said earlier, the appellant’s claim for breach of statutory duty based on the material

provisions of the Residential Tenancies Act confronts the obstacle that those provisions

appear intended only to imply contractual obligations on the part of a landlord into its tenancy

agreement with the tenant: cp. Ryall v. Kidwell & Son [1914] 3 K.B. 135. However, a wider

view of the operation of somewhat similar provisions has been taken in Canada: see

Fleischmann v. Grossman Holdings Ltd (1976) 16 O.R. 2d 746; Basset Realty Pty Ltd v.

Lindstrom (1979) 103 D.L.R. (3d) 654; Zavaglia v. M.A.Q. Holdings Ltd (1983) 50 B.C.L.R.

204; affirmed (1986) 6 B.C.L.R. 2d 186.
Since first preparing these reasons, I have read drafts of the reasons for judgment of the other

members of the Court, each of whom, implicitly at least, rejects the appellant’s claim for

breach of statutory duty based on the Residential Tenancies Act. Because of my opinion that

the appellant succeeds in negligence for reasons given below, I need not pursue this question

to finality, although I note that the texts referred to by Pincus J.A. toward the end of his

judgment (although there concerned with another statutory provision) do not enhance the

appellant’s prospects on her claim for breach of statutory duty.

I will say something more of the Residential Tenancies Act later. However, it is convenient

to notice another point at this juncture.

McPherson J.A. has raised the possibility of a claim by the appellant based on sub-s. 106(1)(a)

of the Property Law Act 1974, and has concluded that such a claim would succeed and that an

amendment should be permitted for that purpose. Pincus J.A. has concluded that such a claim

would fail. Because of my opinion that the appellant succeeds in negligence, I have found it

unnecessary to give detailed consideration to a claim which is not presently part of the

proceeding and which raises difficult issues; for example, whether the oral tenancy of the

dwelling-house from the respondent to the appellant’s parents was a “lease of premises for

Tenancies Act;

(e)	electricity is a dangerous substance;
(f)	the defect in the earthing safety-system was readily ascertainable;
(g)	there was no matter or circumstance which might have indicated to the respondent, or

the appellant or her family, that there was a risk that the earthing safety-system was

not functioning properly;

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

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

(j) there was no matter or circumstance which might have indicated to the respondent, or

the appellant or her family, that there was a risk that the stove was defective or

unsafe.

Policy considerations

Policy considerations are also material; indeed, it has been said that tort law is a matter of

policy: see, for example, Rothfield v. Manolakos (1989) 63 D.L.R. 449 at p. 471.

Policy considerations said to favour the respondent are the social undesirability of inhibiting

the commercial provision of low-cost housing for those in need and the potential unfairness

of making landlords financially liable for the negligent performance of work which they are

unable to perform except through independent contractors. Additional matters, such as the

risk of retrospectively imposing ruinous liability on landlords and that landlords might be

inclined not to seek to avoid liability but merely to insure against it seem to me without

substance. On any view, landlords of residential premises have been potentially liable to at

least their tenants since 1 December 1975.
Sub-sections 7(a)(ii), (iii) and (iv) of the Residential Tenancies Act and sub-s. 106(1)(a) of the

Property Law Act are important in this context. Even if neither directly gives any rights to

the appellant, each informs and influences the respondent's responsibility to the appellant by

its legislative indication of "community standards and demands" with respect to the

obligations of landlords, and especially, in the case of the Residential Tenancies Act at least,

landlords of residential premises: cp. Bryan v. Maloney (1995) 128 A.L.R. 163 at p. 166, per

Mason C.J., Deane and Gaudron JJ; see also Sibley v. Kais (1967) 118 C.L.R. 424 at p. 427;

Sutherland Shire Council v. Heyman (1985) 157 C.L.R. 424 at p. 459; Chordas v. Bryant

(Wellington) Pty Ltd (1988) 91 A.L.R. 149 at p. 159; R. v. Saskatchewan Wheat Pool (1983)

1 S.C.R. 205 at pp. 227-228; and Galaske v. O’Donnell (1994) 5 W.W.R. 1 at pp. 12-13.

Reference has earlier been made to the role which legislation has played in Canada and the

United States of America in the development of a landlord’s liability for damages in

circumstances such as the present.

It is, of course, necessary to construe the material provisions of the Residential Tenancies Act

to determine the nature and extent of a landlord’s obligations in accordance with that Act, and

once again one confronts the protective attitude exhibited to landlords in England in the

development of the common law, combined, on this occasion, with a sequence of English

legislative provisions repeating phrases which had been used in earlier Acts and, presumably,

intended to maintain the interpretation which courts had accorded to those phrases. Thus, it

is of potential significance for present purposes that a statutory provision importing into a

lease a duty on a lessor to keep premises in repair was considered to result in no greater obligation than an express covenant in a lease in identical terms, and hence to require a lessor

to repair only after notified of a defect by the lessee: see O’Brien v. Robinson [1973] A.C.

912; cf. Fisher v. Walters [1926] 2 K.B. 315.

There is no present need to consider the authority of O’Brien in Queensland. The language

of the most directly material provisions in sub-s. 7(a) of the Residential Tenancies Act, paras.

(ii) and (iii), involves significantly different language from the English legislation considered

in O’Brien, and there is no warrant whatever for concluding that the Queensland legislature

intended, in enacting the Residential Tenancies Act, to extend the operation of the English

approach discernible in O’Brien.

On the contrary, by sub-s. 7(a)(ii), a landlord of a dwelling-house is required to “provide” the

premises “in good tenantable repair and in a condition fit for human habitation”. And, having

provided the dwelling-house in that condition, he or she is required by sub-s. 7(a)(ii) and (iii)

to “maintain” the house in that condition and the fixtures, fittings, etc. “in good tenantable

repair”.

In providing a dwelling-house with a defective earthing safety-system, the respondent plainly

did not satisfy the obligation which it had in terms of sub-s. 7(a)(ii).

And, in permitting the dwelling-house to remain in that condition and the stove to become

fatally defective (or failing to prevent that from occurring), in my opinion it equally did not satisfy its obligation in terms of sub-ss. 7(a)(ii) and (iii). Further, even if, contrary to my

opinion, some room might otherwise be found for the operation of the principle in O’Brien, the

facts favour the appellant. The initial defect in the stove had been notified by one of the

tenants to the respondent.

Once this point is reached, the appellant’s claim based on the negligent repair of the stove by-

passes O’Brien, and, if authorities with respect to a landlord’s discharge of an obligation to

repair defective premises (or fittings or fixtures) were material, the relevant cases would be

those concerning the responsibility of a lessor when repairs which the landlord was required

to perform were negligently carried out by an independent contractor. Reference is later

made to Meyers v. Easton (1878) 4 V.L.R. 283; Chatfield v. Elmstone Resthouse Limited

[1975] 2 N.Z.L.R. 269, and Adams Furniture Co. Ltd v. Johor Investments Ltd (1961) 26

D.L.R. (2d) 380.

Other policy considerations were described in Burnie Port Authority at p. 552 as

considerations of utility, which were elaborated on by saying that the special responsibility

there held to exist had "the practical advantage of being conveniently workable, of supplying

a spur to effective care in the choice of contractors, and in pointing the victim to a defendant

who is easily discoverable and probably financially responsible".

It is also a legitimate objective in the development of the law that it avoid anomalous, if not

capricious, results; for example, imposing liability on the landlord of a dwelling house for injury sustained by a tenant but not for injury sustained in the same circumstances by the

tenant’s child: cp. Fleming (8th ed.) at pp. 461ff.

Recent High Court decisions

The duty of care from an employer to an employee provides a classic instance of a special

responsibility for another person's safety; "... the employer's duty is non-delegable ... the duty

cannot be delegated to a contractor on the footing that delegation to a competent contractor

is a sufficient compliance with the duty": Kondis at p. 679 per Mason J., with whom Deane

and Dawson JJ. agreed. Mason J.'s judgment in Kondis contains, at pp. 678ff, an extensive

review and analysis of the decisions which have given rise to the doctrine of non-delegable

duties and criticisms to which those decisions have been subjected, including Meyers v.

Easton, a landlord and tenant case. At pp. 687-688 (in Kondis), Mason J. said:

"... when we look to the classes of case in which the existence of a non- delegable duty has been recognized, it appears that there is some element in the relationship between the parties that makes it appropriate to impose on the defendant a duty to ensure that reasonable care and skill is taken for the safety of the persons to whom the duty is owed. As I said in Introvigne ((1982) 150 C.L.R., at p. 271) 'the law has, for various reasons imposed a special duty on persons in certain situations to take particular precautions for the safety of others'. That statement should be expanded by adding a reference to safeguarding or protecting the property of other persons, a matter which did not present itself for consideration in Introvigne.

The element in the relationship between the parties which generates a special responsibility or duty to see that care is taken may be found in one or more of several circumstances. The hospital undertakes the care, supervision and control of patients who are in special need of care. The school authority undertakes like special responsibilities in relation to the children whom it accepts into its care. If the invitor by subject to a special duty, it is because he assumes a particular responsibility in relation to the safety of his premises and the safety of his invitee by inviting him to enter them. And in Meyers v. Easton the undertaking of the landlord to renew the roof of the house was seen as impliedly carrying with it an undertaking to exercise reasonable care to prevent damage to the tenant's property. In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised. As we have seen, the personal duty which has been recognized in the other cases which I have discussed, such as Dalton v. Angus ((1881) 6 App.Cas. 740), may rest on rather different foundations which have no relevance for the present case.

The foreseeability of injury is not in itself enough to generate the special duty. Before the special duty arises there must exist in the relationship between the parties an element of the kind already discussed.

That such an element exists in the relationship of employment is beyond serious challenge. The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer's provision and judgment in relation to these matters. The consequence is that in these relevant respects the employee's safety is in the hands of the employer; it is his responsibility. The employee can reasonably expect therefore that reasonable care and skill will be taken. In the case of the employer there is no unfairness in imposing on him a non-delegable duty; it is reasonable that he should bear liability for the negligence of his independent contractors in devising a safe system of work. If he requires his employee to work according to an unsafe system he should bear the consequences. Indeed, there 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, e.g., 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. But this is by the way, for it is not an issue that needs to be decided in the present case." [Notes italicised and in brackets.]

In Burnie Port Authority, a building owner was held liable to an occupier of a section of the

building whose stock was damaged by a fire caused by the negligence of an independent

contractor engaged by the owner to do work on extensions to the building. Mason C.J., Deane, Dawson, Toohey and Gaudron JJ. held that the building owner owed the occupier a

non-delegable duty of care which extended to ensuring that the independent contractor took

reasonable care. To some extent, the reasoning in the case is complicated by the concurrent

discussion of the absorption, in the common law of Australia, of any special rule relating to the

escape of fire (Rylands v. Fletcher (1868) L.R. 3 H.L. 330) into the general principle of

negligence. Nonetheless, the relevance of the passages set out below to the present case is

obvious.

At pp. 550-552, their Honours said:

"The non-delegable duty" C.L.R., at p. 382)
, '[t]he more detailed definition of the objective standard of care [under the ordinary law of negligence] for the purposes of a particular category of case must necessarily depend upon the identification of the relationship of proximity which is the touchstone and control of the relevant category.' It has long been recognized that there are certain categories of case in which a duty to take reasonable care to avoid a foreseeable risk of injury to another will not be discharged merely by the employment of a qualified and ostensibly competent independent contractor. In those categories of case, the nature of the relationship of proximity gives rise to a duty of care of a special and 'more stringent' kind, namely a 'duty to ensure that reasonable case is taken' (See Kondis v. State Transport Authority (1984) 154 C.L.R. 672, at p. 686). Put differently, the requirement of reasonable care in those categories of case extends to seeing that care is taken. One of the classic statements of the scope of such a duty of care remains that of Lord Blackburn in Hughes v. Percival ((1883) 8 App.Cas. 443, at p. 446):

'that duty went as far as to require [the defendant] to see that reasonable skill and care were exercised in those operations ... If such a duty was cast upon the defendant he could not get rid of responsibility by delegating the performance of it to a third person. He was at liberty to employ such a third person to fulfil the duty which the law cast on himself ... but the defendant still remained subject to that duty, and liable for the consequences if it was not fulfilled.'

In Kondis v. State Transport Authority ((1984) 154 C.L.R., at pp. 679-687; and see also, Stevens v. Brodribb Sawmilling Co. Pty. Ltd. (1986) 160 C.L.R., at p. 44, per Wilson and Dawson JJ.), in a judgment with which Deane J. and Dawson J. agreed, Mason J. identified some of the principal categories of case in which the duty to take reasonable care under the ordinary law of negligence is non-delegable in that sense: adjoining owners of land in relation to work threatening support or common walls; master and servant in relation to a safe system of work; hospital and patient; school authority and pupil; and (arguably), occupier and invitee. In most, though conceivably not all, of such categories of case, the common 'element in the relationship between the parties which generates [the] special responsibility or duty to see that care is taken' is that 'the person on whom [the duty] is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised' (Kondis v. State Transport Authority (1984) 154 C.L.R., at p. 687; see also, Stevens v. Brodribb Sawmilling Co. Pty. Ltd. (1986) 160 C.L.R., at pp. 31, 44-46). It will be convenient to refer to that common element as 'the central element of control'. Viewed from the perspective of the person to whom the duty is owed, the relationship of proximity giving rise to the non-delegable duty of care in such cases is marked by special dependence or vulnerability on the part of that person (The Commonwealth v. Introvigne (1982) 150 C.L.R. 258, at p. 271, per Mason J.).

The relationship of proximity which exists, for the purposes of ordinary negligence, between a plaintiff and a defendant in circumstances which would prima facie attract the rule in Rylands v. Fletcher is characterised by such a central element or control and by such special dependence and vulnerability. One party to that relationship is a person who is in control of premises and who has taken advantage of that control to introduce thereon or to retain therein a dangerous substance or to undertake thereon a dangerous activity or to allow another person to do one of those things. The other party to that relationship is a person, outside the premises and without control over what occurs therein, whose person or property is thereby exposed to a foreseeable risk of danger ('which he knows to be mischievous if it gets on his neighbour's [property]': Fletcher v. Rylands (1866) L.R. 1 Ex., at p. 280; see above, fn 57). In such a case, the person outside the premises is obviously in a position of special vulnerability and dependence. 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. Conversely, the person who introduces (or allows another to introduce) the dangerous substance or undertakes (or allows another to undertake) the dangerous activity on premises which he or she controls is 'so placed in relation to [the other] person or his property as to assume a particular responsibility for his or its safety'.

It follows that the relationship of proximity which exists in the category of case into which Rylands v. Fletcher circumstances fall contains the central element of control which generates, in other categories of case, a special 'personal' or 'non-delegable' duty of care under the ordinary law of negligence. Reasoning by analogy suggests, but does not compel, a conclusion that the common element gives rise to such a duty of care in the first-mentioned category of case. There are considerations of fairness which support that conclusion, namely, that it is the person in control who has authorized or allowed the situation of foreseeable potential danger to be imposed on the other person by authorizing or allowing the dangerous use of the premises and who is likely to be in a position to insist upon the exercise of reasonable care. It is also supported by considerations of utility: 'the practical advantage of being conveniently workable, of supplying a spur to effective care in the choice of contractors, and in pointing the victim to a defendant who is easily discoverable and probably financially responsible' (Thayer op.cit., at p. 809). The weight of authority confirms that the duty in that category of case is a non-delegable one."

And, at p. 554:

"Where a duty of care arises under the ordinary law of negligence, the standard of care exacted is that which is reasonable in the circumstances. It has been emphasized in many cases that the degree of care under that standard necessarily varies with the risk involved and that the risk involved includes both the magnitude of the risk of an accident happening and the seriousness of the potential damage if an accident should occur (See, e.g., Thompson v. Bankstown Corporation (1953) 87 C.L.R., at p. 645; Wyong Shire Council v. Shirt (1980) 146 C.L.R. 40, at pp. 47-48). Even where a dangerous substance or a dangerous activity of a kind which might attract the rule in Rylands v. Fletcher is involved, the standard of care remains 'that which is reasonable in the circumstances, that which a reasonably prudent man would exercise in the circumstances' (Adelaide Chemical & Fertilizer Co. Ltd. v. Carlyle (1940) 64 C.L.R. 514, at p. 523). In the case of such substances or activities, however, a reasonably prudent person would exercise a higher degree of care. Indeed, depending upon the magnitude of the danger, the standard of 'reasonable care' may involve 'a degree of diligence so stringent as to amount practically to a guarantee of safety' (Donoghue v. Stevenson [1932] A.C., at p. 612, per Lord

Macmillan; Adelaide Chemical & Fertilizer Co. Ltd. v. Carlyle (1940) 64 C.L.R., at p. 523, per Starke J.; and, generally, Stevens v. Brodribb Sawmilling Co. Pty. Ltd. (1986) 160 C.L.R., at pp. 30, 42)."

And at pp. 556-557:

"... In these circumstances, and subject only to the above-mentioned possible qualification in relation to liability in nuisance, the rule in Rylands v. Fletcher, with all its difficulties, uncertainties, qualifications and exceptions, should now be seen, for the purposes of the common law of this country, as absorbed by the principles of ordinary negligence. Under those principles, a person who takes advantage of his or her control of premises to introduce a dangerous substance, to carry on a dangerous activity, or to allow another to do one of those things, owes a duty of reasonable care to avoid a reasonably foreseeable risk of injury or damage to the person or property of another. In a case where the person or property of the other person is lawfully in a place outside the premises that duty of care both varies in degree according to the magnitude of the risk involved and extends to ensuring that such care is taken. It is unnecessary for the purposes of the present case to express a concluded view on the question whether the duty of care owed, in such circumstances, to a lawful visitor on the premises is likewise a non-delegable one. The ordinary processes of legal reasoning by analogy, induction and deduction would prima face indicate that it is. Like Windeyer J. in Benning v. Wong (See above, fn. 54), we have added the qualifications 'lawfully' and 'lawful' to reserve the position of, rather than to exclude, the unlawful plaintiff." [Notes italicised and in brackets.]

In Bryan, the High Court held that a negligent builder was liable to a subsequent purchaser

for the cost of repairs and damage resulting from inadequate footings. The leading judgment

was delivered by Mason C.J., Deane and Gaudron JJ. who said at p. 166:

"As was pointed out in the recent majority judgment in Burnie Port Authority v. General Jones Pty Ltd ((1994) 120 A.L.R. 42; 179 CLR 520 at 543 per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ., and see also Stevens v. Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 53; 63 ALR 513), the overriding requirement of a relationship of proximity represents the conceptual determinant and the unifying theme of the categories of case in which the common law of negligence recognises the existence of a duty to take reasonable care to avoid a reasonably foreseeable risk of injury to another. There is no decision of the court which directly determines the question whether the relationship between Mr Bryan, as the builder of the house, and Mrs Maloney, as a subsequent owner of it, possessed the requisite degree of proximity to give rise to a duty, on the part of Mr Bryan, to take reasonable care to avoid the kind of economic loss sustained by Mrs Maloney.

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

Ultimately, however, it is a question of law which must be resolved by the ordinary processes of legal reasoning in the context of the existence or absence of the requisite element of proximity in comparable relationships or with respect to comparable acts and/or damage. Accordingly, it is appropriate to approach the question through a consideration of some related situations."

At pp. 167-168:

"The fact that the law recognises the existence of concurrent duties in contract and tort does not mean that the existence of a contractual relationship is irrelevant to either the existence of a relationship of proximity or the content of a duty of care under the ordinary law of negligence. In some circumstances, the existence of a contract will provide the occasion for, and constitute a factor favouring the recognition of, a relationship of proximity either between the parties to the contract or between one or both of those parties and a third person. In other circumstances, the contents of a contract may militate against recognition of a relationship of proximity under the ordinary law of negligence or confine, or even exclude the existence of, a relevant duty of care. The position in those regards was helpfully and correctly explained in the ... extracts from the judgment of Le Dain J., speaking for a unanimous Supreme Court of Canada, in Central Trust C. v. Rafuse ((1986) 31 DLR (4th) at 521-2. And see Winnipeg Condominium Corp No. 36 v. Bird Construction Co Ltd (Supreme Court of Canada, 26 January 1995, unreported): ...." [Notes italicised and in brackets.]

Conclusion

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

considerations. Essentially, the question is whether the loss should be left to be where it has

fallen, or is there sufficient reason for transferring it from the appellant to the respondent.

The practical necessity for landlords to engage or rely upon apparently competent qualified experts and contractors is not conclusive against the appellant. The same argument is

applicable with respect to any relationship which involves a special responsibility to ensure

that reasonable care is taken - compare also the inability of a landlord to delegate

responsibility vis-a-vis a tenant for either a statutory obligation to repair (Chatfield v.

Elmstone Resthouse Limited at p. 274), or a contractual obligation to repair (Adams Furniture

Co Ltd v. Johor Investments Ltd at p. 382; Meyers v. Easton). The practical need to delegate

a task is a factor to be taken into account in determining the nature and extent of the

responsibility of a landlord or other person who owes a duty of care, but ultimately the legal

issue is whether not only the task but also the responsibility may be delegated.

Further, the other principal policy consideration which favours the respondent - the need not

to deter the commercial provision of low-cost housing for those in need of it - does not require

a conclusion that a tenant, or other person residing on leased premises, should bear the loss

if injured because the premises were unsafe. The provisions in the Residential Tenancies Act

1994 with respect to "The General Standard of the Premises" (Part 2) provide for the

reasonableness of the state of repair to be determined "having regard to the age of, rent

payable for, and expected life of, the premises or inclusions": sub-ss. 103(2)(c) and 3(a).

While those provisions limit a landlord's obligations, they cannot be intended to derogate from

a fundamental requirement of basic safety. Appropriate insurance, which is an ordinary and

reasonably inexpensive business cost, can eliminate a landlord's financial risk, as has very

probably been common practice at least in the last 20 years, since the Residential Tenancies

Act came into effect; contemporary decisions of the High Court overall demonstrate a broad tendency towards allowing the recovery of non-economic loss caused by another with whom

the victim is in a relationship of proximity, and encouraging those who are potentially liable

to avoid any risk by insurance.

Of course, such a generalisation cannot of itself provide a satisfactory test by which to

measure a duty of care; the nature and content of that duty must derive from the proximity

factors and policy considerations to which reference has earlier been made. It is unnecessary

to repeat them, although the commercial nature of the respondent’s activity and its statutory

obligations might appropriately be emphasised, along with the purpose for which the promises

were let. Further, it is a matter of considerable importance that, relative to the appellant, the

respondent was in total control. Moreover, the appellant was in a position of special

dependence and vulnerability - she could not influence what the respondent caused to be done

in respect of the premises and relevant contents, or by whom, or in what manner: cp. per

Mason J. in Kondis at p. 687, explaining Meyers v. Easton.

I have not placed special emphasis on the fact that the appellant was a child when injured, and

hence have not had to consider the various views which have been expressed by reference to

that consideration. See, for example, Fleming (7th ed.) at pp. 448-450; (8th ed.) at pp. 458-

459. There is no reason to doubt that infancy can be material to both the existence and nature

and content of a duty of care, and can even be a decisive factor: see Galaske at pp. 11ff. In

this case, however, the fact that the appellant was a child was probably no more relevant than

that she was not a tenant; any member of the family could have touched the tap and would, in
that event, have been seriously injured.

In my opinion, in these circumstances the respondent's duty of care to the appellant was

breached as she submits. As an aspect of letting its house for reward, the respondent 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 summary, in my opinion the respondent was under a duty to the appellant to make the

premises reasonably safe at the commencement of the tenancy and whenever maintenance

or repairs were carried out during the tenancy. It is unnecessary in this case to decide

whether any more comprehensive duty was owed by the respondent to the appellant, or

whether the duty owed by the respondent to the appellant was co-extensive with the duty

which it owed to its tenants. It is not really in dispute, I think, that if the respondent owed the

appellant the duty of care which I have described, it breached that duty and is liable to pay her

damages for her injuries.

In the result, therefore, I would allow the appeal with costs to be taxed, set aside the trial

judge's order dismissing the appellant's action against the respondent, and give judgment for

the appellant against the respondent for $1,204,429.82, together with costs of and incidental

to the action, including reserved costs (if any) to be taxed. The orders made by the trial judge on 1 June 1994 with respect to the manner of payment of the damages by Briggs are to apply,

mutatis mutandis, to the payment of damages by the respondent. Additional orders might be

necessary to deal with further orders made by the trial judge subsequent to trial, but these can

either be agreed or dealt with on written submissions, after proper notice to all persons who

might be affected. As I have earlier stated, I also join in the order giving the appellant leave

to amend in the form proposed by McPherson J.A.