GLEESON CJ, GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
MARC JARRAD JONES APPELLANT
AND
GRAHAM BARTLETT & ANOR RESPONDENTS
Jones v Bartlett [2000] HCA 56 16 November 2000 P59/1999
ORDER
Appeal dismissed with costs.
On appeal from the Supreme Court of Western Australia
Representation:
E M Heenan QC with C P Shanahan for the appellant (instructed by Butcher Paull & Calder)
M W Odes QC with S H Hay for the respondents (instructed by Phillips Fox)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Jones v Bartlett & Anor
Negligence – Duty of care – Person lawfully on premises injured by glass door – Scope of landlord's duty of care to a person who resides on premises – Scope of landlord's duty of care in respect of state of premises – Whether duty to have premises inspected by expert.
Contracts – Tenancy agreement – Whether s 11 of the Property Law Act 1969 (WA) allows a third party to sue for breach of tenancy agreement.
Statutory liability – Occupiers' liability – Whether landlord was an "occupier of premises" under s 5(1) of the Occupiers' Liability Act 1985 (WA) – Duty of landlord under s 9(1) of the Occupiers' Liability Act 1985 (WA).
GLEESON CJ. The question in this appeal is whether the respondents, the owners of a dwelling house at Mt Pleasant in Western Australia, are liable to the appellant, the son of the tenants of the house, who injured himself by carelessly putting his knee through a glass door in the house.
Damages were agreed in the sum of $75,000. At the trial in the District Court, the issue was liability.
At first instance, Commissioner Reynolds found in favour of the appellant[1]. The decision was based upon the Occupiers' Liability Act 1985 (WA). A finding of contributory negligence was made against the appellant, and damages were reduced by fifty per cent. Judgment was entered for $37,500. An appeal to the Full Court of the Supreme Court of Western Australia (Murray, White and Scott JJ) was allowed[2]. The Full Court ordered that the appellant's claim be dismissed. By special leave, the appellant appeals to this Court.
[1]Jones v Bartlett unreported, District Court of Western Australia, 4 February 1998.
[2]Bartlett v Jones unreported, Supreme Court of Western Australia, 22 February 1999.
The facts
The appellant suffered his injury when, on the evening of 27 November 1993, he walked into a glass door which separated the dining room and the games room of the house which his parents were renting from the respondents.
Commissioner Reynolds made the following findings about the circumstances of the accident.
The house was built in the late 1950s or early 1960s. Originally, it consisted of three…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Jones v Bartlett [2000] HCA 56
Case
[2000] HCA 56
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the appellant, who had been injured when he walked into a glass door at a rented property. The appellant's parents were the tenants, and he resided with them. The respondents were the owners of the property. The appellant's claim for damages for negligence was dismissed by the Full Court of the Supreme Court of Western Australia, overturning a decision at first instance that had found in favour of the appellant, albeit with a fifty per cent reduction for contributory negligence.
The central legal issues before the High Court were whether the landlords owed a duty of care to a person lawfully on the premises, specifically a resident, regarding the state of the premises. This included whether the landlords had a duty to have the premises inspected by an expert to assess the safety of the glass in a door and to replace it with glass that complied with current Australian Standards, even though the original installation complied with the standards at the time of construction. The court also considered whether a breach of the tenancy agreement, as implied by the Residential Tenancies Act 1987 (WA) and potentially s 11 of the Property Law Act 1969 (WA), could give rise to a cause of action for the appellant as a third party, and whether the landlords were "occupiers" under the Occupiers' Liability Act 1985 (WA).
The High Court ultimately dismissed the appeal. The majority reasoned that the landlords' duty of care did not extend to inspecting the premises for compliance with subsequent changes in Australian Standards for glass safety, particularly when the original installation met the standards applicable at the time of construction. The court found no contractual or statutory basis to impose such a retrospective duty on the landlords. Furthermore, the court determined that the landlords were not "occupiers" for the purposes of the Occupiers' Liability Act 1985 (WA) in relation to the specific hazard.
The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
At first instance, Commissioner Reynolds found in favour of the appellant[1]. The decision was based upon the Occupiers' Liability Act 1985 (WA). A finding of contributory negligence was made against the appellant, and damages were reduced by fifty per cent. Judgment was entered for $37,500. An appeal to the Full Court of the Supreme Court of Western Australia (Murray, White and Scott JJ) was allowed[2]. The Full Court ordered that the appellant's claim be dismissed. By special leave, the appellant appeals to this Court.[1]Jones v Bartlett unreported, District Court of Western Australia, 4 February 1998.[2]Bartlett v Jones unreported, Supreme Court of Western Australia, 22 February 1999.The facts The appellant suffered his injury when, on the evening of 27 November 1993, he walked into a glass door which separated the dining room and the games room of the house which his parents were renting from the respondents. Commissioner Reynolds made the following findings about the circumstances of the accident. The house was built in the late 1950s or early 1960s. Originally, it consisted of three bedrooms, a bathroom, a toilet, a laundry, a kitchen, a lounge room and a dining room. Some time later, a games room was added at the rear of the house. The door in question, which was made of glass in a timber frame, connected the dining room to the games room. The parents of the appellant took a lease of the house from the respondents in November 1992. The lease expired on 6 November 1993. They remained in the premises thereafter, on a fortnightly basis, on the terms of the original lease. The accident occurred because the appellant, who had been living in the house with his parents for about four months, walked into the door without looking to see whether it was open or closed. On the view I take of the case, it is unnecessary to pursue the matter of contributory negligence. It may be noted, however, that the Full Court of the Supreme Court, although it was strictly unnecessary to decide the point, went further than Commissioner Reynolds, and found that the appellant's carelessness was the sole cause of his injury. The alleged negligence, or breach of contractual duty, on the part of the respondents, consisted in failing to have an expert inspect the premises before they were let to the parents of the appellant, and in failing to have the glass in the door in question replaced with thicker glass which would comply with the safety standards that would have applied had the building been newly constructed, or had the glass in the door been replaced, at that time. The appellant called, as a witness, Mr Fryer, who was a consultant in matters concerning the use of glass. Commissioner Reynolds summarised the evidence of Mr Fryer as follows:"He examined a piece of glass from the glass door and found it to be annealed glass of 4 mm thickness. It was not laminated or strengthened. He gave evidence about the Australian Standards for glass. The first Australian Standard was CA26-1957. It did not prescribe any mandatory requirements for fitting glass panes. It was only concerned with wind loads and not human impact. It recommended annealed glass of 4 mm thickness. The glass is called annealed because of the cooling process it goes through when it comes out of a furnace.The relevant standard was later upgraded in 1973, 1979 and 1989. I accept that there was no statutory duty to upgrade the glass in the glass door as standards changed and no evidence that the defendants knew of the standards. The 1989 standard required replacement glass in such a door or a new door in new premises, if the glass was annealed glass, to be 10 mm thickness. The 1989 standard also provided for toughened safety glass and laminated safety glass.Mr Fryer said that he would charge about $130 to do an inspection and report on the suitability of glass in premises such as the premises. He added that he has not carried out such an inspection on residential premises."
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
GAUDRON J
HUGH J
GUMMOW AND HAYNE JJ
The claim in negligence must fail.Conclusion The appeal should be dismissed with costs. The facts and the history of these proceedings are set out in the judgment of Callinan J. I shall repeat them only to the extent necessary to make clear my reasons for concluding that this appeal should be dismissed. The primary issue in the appeal is whether the respondents, the owners of residential premises ("the premises") which were leased to the appellant's parents and in which the appellant resided, are liable to the appellant for injuries sustained by him when he walked through a glass door in those premises. If they are, there is a further question whether their liability is to be reduced by reason of the appellant's contributory negligence. It is not in issue that the premises were constructed some years prior to the lease between the respondents and the appellant's parents ("the lease"). Nor is it in issue that, when installed, the 4 mm annealed glass[25] door, which is at the centre of these proceedings, complied with the relevant building standard. New standards were later introduced. When the lease was entered into in November 1992, the relevant standard required that glass in a new residential building and, also, replacement glass be either 10 mm thick or be laminated safety glass. Glass of that kind does not shatter or break as easily as 4 mm annealed glass.[25]The glass is called "annealed" because of the cooling process it goes through when it comes out of a furnace. The appellant contends that, before the premises were leased to his parents, the respondents owed him a duty to have the premises inspected by an expert glazier capable of recognising that the glass door contained 4 mm annealed glass and to replace that glass with 10 mm glass or laminated safety glass in accordance with the then current standard. He asserts that, in accordance with the Residential Tenancies Act 1987 (WA), that duty was owed as a matter of contract law. Alternatively, he asserts that that duty arose under the Occupiers' Liability Act 1985 (WA) or, in the further alternative, as part of the general law of negligence.The Residential Tenancies Act 1987 (WA) and s 11(1) of the Property Law Act 1969 (WA) Section 42(1) of the Residential Tenancies Act relevantly provides:" It is a term of every agreement that the owner –...(b)shall provide and maintain the premises in a reasonable state of repair having regard to their age, character and prospective life; and(c)shall comply with all requirements in respect of buildings, health and safety under any other written law in so far as they apply to the premises."It is convenient to proceed on the basis that those terms were imported into the lease, notwithstanding an ambiguous endorsement at the bottom of one of the pages of the lease suggesting that they may have been excluded under s 82(3) of that Act[26].[26]Section 82(3) provides that a residential tenancy agreement may contain a provision by which s 42, amongst other sections, is excluded, modified or restricted, if the agreement is in writing and signed by the owner and the tenant. The lease in this case, which was in writing and was signed by the respondents' agent and the tenants, stated that "[t]he signatory/ies must be aware that in accordance with section 82.3 of the Residential Tenancies Act 1987 … [s 42] may been [sic] excluded, modified or restricted in this document and the terms and conditions set out herein are those which will apply during this tenancy or any subsequent extension".
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ,
GAUDRON J,
HUGH J,
GUMMOW AND HAYNE JJ