Jones v Bartlett

[1999] HCATrans 363

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P15 of 1999

B e t w e e n -

MARC JARRAD JONES

Applicant

and

GRAHAM BARTLETT and JOAN BARTLETT

Respondents

Application for special leave to appeal

GLEESON CJ
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 21 OCTOBER 1999, AT 10.43 AM

Copyright in the High Court of Australia

MR C.P. SHANAHAN:   May it please the Court, I appear for the applicant.  (instructed by Butcher Paull & Calder)

MR G.R. HANCY:   Your Honours, I appear for the respondents.  (instructed by Phillips Fox)

GLEESON CJ:   Yes, Mr Shanahan.

MR SHANAHAN:   Your Honours, it is a vital matter of public interest that the legal obligations that are owed by landlords, albeit as occupiers or otherwise, to their tenants are clear, certain and enforceable.  This particular application - - -

KIRBY J:   The Court gained a great deal of assistance in that respect in Northern Sandblasting.

MR SHANAHAN:   Yes, that is so, your Honour.  In regard to this particular application, the matters that are agitated are in respect of three errors that the applicant says are evident with respect in the decision by the Full Court and in that regard says that the decision of Northern Sandblasting v Harris is one which has previously recognised the importance of the nature and content of the legal obligations that are owed by an occupier and also the difficulties that can be experiences in relation to tenants and that is especially so, given the uneven or unequal economic position of landlord and tenant.

The three matters that I would seek to take your Honours to this morning by way of this application relate – two matters relate to the obligations of the landlord as an occupier and one in relation to the status of Mr Jones under the Residential Tenancies Act in Western Australia. 

GLEESON CJ:   It is only the former that is affected by Northern Sandblasting.

MR SHANAHAN:   That is so.  That is so, your Honour, yes.  In respect of occupiers liability, with respect, the applicant would rely upon several of his Honour Justice Murray’s finding in the Full Court.  First, at page 63 of the application book:

As has been seen, by s 4(1) –

making reference to the Occupiers Liability Act –

that duty of care is applied in place of the rules of the common law, although as those rules are now expressed it is difficult to discern that the duty of care imposed in negligence at common law would have a materially different content from the statutory duty in the circumstances of this case.

And the applicant would suggest that that makes a consideration of this matter of national significance, albeit that the application comes in relation to the Western Australian legislation.

McHUGH J:   Your point is a simple one, is it not?

MR SHANAHAN:   Yes.

McHUGH J:   That these glass doors give rise to a reasonably foreseeable risk of injury.  That risk can be avoided by using the modern standard.  It is irrelevant that the house may have been built at an earlier stage.  The person has a continuing duty to eliminate risk, and the use of the later standard, glass, would have eliminated the risk?

MR SHANAHAN:   Yes.

McHUGH J:   That is the beginning and end of the case, is it not, apart from the contributory negligence point because I would have thought that if you succeed on your liability point, there is hardly any scope for the doctrine of contributory negligence?

MR SHANAHAN:   Yes.

McHUGH J:   On the basis that your negligence would not have been an operative cause of the damage because the glass would have prevented the damage.

MR SHANAHAN:   Yes.

GLEESON CJ:   Many householders who let their premises would not even know that these standards change from time to time, would they?

MR SHANAHAN:   That is so, your Honour, and, in fact, I note that my friend, in the written materials he seeks to refer to later, has the witness statement of Joan Bartlett, one of the defendants in this matter, in which she actually makes that observation and the point that the applicant would make in that regard is that this house was an old house; it had an aged addition and it is the nature of the house and the fabric which give rise to the obligation to inspect and to warn because it is clear from the nature of the premises in this instance that they may be unsafe and that they should therefore be inspect prior to the premises being let for reward.

KIRBY J:   Is your point that it may be different if you just have a visitor but if you are letting premises then you have to take the precaution of inspecting?

MR SHANAHAN:   Certainly, the reliance by a tenant is likely to be more considerable in that regard because they are going to be on the premises for a lengthy period of time.

KIRBY J:   Now, there is a slight complication here, that your client is the son of the tenant.

MR SHANAHAN:   Yes, that is so.

KIRBY J:   Which is somewhat similar to the problem that arose in Northern Sandblasting, was it not?

MR SHANAHAN:   Yes.  The applicant meets that observation, your Honour, by noting that in respect of the evidence that was led at trial, and it was clearly accepted by his Honour the learned Commissioner in the District Court and ultimately by his Honour Justice Murray in the Full Court, there was evidence that prior to the lease being signed between the parties, that the people named as tenants in the residential tenancy agreement were the parents of the plaintiff and that they had told the agent of the landlord’s that the third person to live in the premises would be the applicant and that there was an expectation that the applicant would ultimately join them in the demised premises.

GLEESON CJ:   Well, perhaps we will hear what Mr Hancy has to say.

MR SHANAHAN:   Thank you, your Honour.

GLEESON CJ:   Yes, Mr Hancy.

MR HANCY:   Your Honours, if I could just deal with the duty of care problem which seems to be the point that you are concerned about it.  It probably could be said that an appropriate case will arise one day for review of the Northern Sandblasting decision but this is not this case.  The reason why it is not this case is that there was a factual and evidentiary problem that the plaintiff faced at trial and on appeal.  Even if you assume that when an ordinary householder, as the Bartletts were, when they rent out their property, they should have it inspected for defects or problems or dangers, there was no evidence called for the plaintiff by anybody other than an expert glazier to explain what might be found and what might be detected and that - - -

McHUGH J:   But that seems to me to be an irrelevancy and it seems to me at the moment that this talk about inspection is irrelevant as well.  Your clients rented out a property which contained a reasonably foreseeable risk of injury.  Negligence is objective.  If it did, the only question is was there means reasonably available to it to obviate the risk of injury.  It is an objective standard.  On one view, it is arguable that there was a reasonably available means of avoiding the risk of injury.  That is what seems to me to make the case an important case because, on one view, it may increase the liability of landlords but it seems to be a case that would have effect throughout the whole of the nation.

MR HANCY:   Reasonable foreseeability obviously, as your Honours know, is relevant to the existence of the duty of care.

McHUGH J:   And breach.

MR HANCY:   And breach, but relevant to the breach, of course, are the availability of means of avoiding the practicability and costs and so on as part of the factual matrix and part, also, that is relevant to that, is the means of detecting the risk, that is knowing.  Everyone accepted this as a reasonably foreseeable risk because after the event people discovered that the glass was not up to current standards that would apply if it was a new construction.  There is no ongoing statutory obligation to maintain or replace the glass in any different way.

McHUGH J:   I appreciate that but I would have thought there would be few people in the community, at least in eastern Australia, who do not know somebody who has not walked through a glass door at some stage, or known of such cases, and that is the reason these standards are being brought in.

MR HANCY:   If, though, and I go back to the first point, the plaintiff had produced some evidence of somebody having said, and somebody who you might reasonably expect the householder to engage to do an inspection and that person, for example, a builder, had said, “Look, if I’d gone through this house, I would have picked up that there was a problem with this glass and I would have recommended that it be replaced.  But that evidence was not given. 

KIRBY J:   In some ways, this is a stronger plaintiff’s case than Northern Sandblasting because there, after all, it was an electricity problem and the landlord had got, as was required by the law of Queensland, a licensed electrician and it was forbidden for a lay person to go snooping around and trying to find out that here is a bid piece of glass that is quite obvious.  So that, in a sense, it is a stronger case for the plaintiff - - -

MR HANCY:   We would say weaker because there the electrician did do the inspection.  So, here if you had, for example, a glazier going and doing the inspection, then the case it would be different.  But their case at trial was that if a glazier had gone in and inspected, then the glazier would have picked up the problem and would have made a recommendation.  Now, that individual gave evidence that he would have picked it up but he also gave evidence of two other important points and they were these:  the first is that he had never heard of anybody doing one of these inspections and he had not done one himself.  The second point he made is that the ordinary person would not pick it up. 

Now, because he was an expert glazier, it was their case that if the duty extends to inspection by experts, then – because that was their case.  It was a case of inspection by experts; not a case of an inspection by a general tradesman or a general builder.  There is the electrician who would have to inspect; there is the plumber that would have to inspect; there would be the engineer for structural defects; there would be a large range.  They did not produce a general builder or somebody of that kind who could inspect everything and comment on it.

KIRBY J:   Well, as far as I am concerned, the question is whether this is a suitable vehicle because there is no doubt that following Northern Sandblasting there has been a lot of comment and a lot of suggestion that it left, because of the different majorities within the Court, the position of landlords in Australia unclear and, at least on the face of things, you may well succeed in the appeal, but it does seem to tender to the Court a question as to how far the duty of care goes to a landlord in a situation like this.  That is quite an important question.

MR HANCY:   We would accept that Northern Sandblasting has not left the law in a satisfactory state because it is not entirely clear what the case decided when you look at the individual judgments.  There is a majority for the result but not a majority that turns on any particular point.

KIRBY J:   Law schools today teach it in order to try to find what the ratio is.

MR HANCY:   That is right.

KIRBY J:   Well, this case is a much simpler case.  There were a lot of issues in Northern Sandblasting whereas this case is really a one-issue proposition.

MR HANCY:   It is, and that really was the point I was trying to make, it is not a suitable vehicle because of the way the case was run.

McHUGH J:   But, you see, you are throwing the weight of your argument on particular (f) in the particulars of negligence, “failed to adequately inspect”, but it may be that the appropriate particular is not (f) but (e):

Failed to install Grade “A” Safety Glass of a minimum thickness of 4mm as required by AS 1288 – 1989 - - -

KIRBY J:   Your answer to that, I suppose, is that an ordinary landlord of these types of premises never heard of those provisions and does not know about them and does not reasonably not know about them.

MR HANCY:   Yes, and that is one of the reasons why - - -

KIRBY J:   Well, that tinges the issue.  It is quite an important issue for landlords because not all landlords are of glass and marble buildings in the middle of Perth.  Many of them are very modest premises as was the case in Northern Sandblasting and as was the case here.

MR HANCY:   That is right.  These were not professional landlords or corporate landlords.  They are just a couple renting out their house.

GLEESON CJ:   It is a very important issue for residents who might be proposing to let their house on a short term to people who come and watch the Olympic Games.

KIRBY J:   And leave the country during that period.

GLEESON CJ:   As Justice Kirby pointed out, not all landlords are professional landlords and the economic imbalance between landlord and tenant, of which your opponent spoke, is not uniform.

MR HANCY:   It is not.  I wanted to make the point again – my friend sort of touched on it – that part of the materials that we asked to put before you and it should be the materials that you have, which is not in the application book, is the statement from Mr Bartlett, just a housewife, effectively - - -

McHUGH J:   Yes, but there are problems about the use of material that is not in the application book.  Application books are settled by the Registrar.  They should be decided on that basis.  Material that is not in the application book should not be looked at.

KIRBY J:   Was this material at the trial?

MR HANCY:   Well, not only was it at the trial, it also has always been part of our submissions.  We have always referred to it in our submissions.  It is not - - -

KIRBY J:   This is an oversight that it did not get into the application book, is it?  It is an oversight that it was not in the application book?  If it was evidence at the trial, then, if it is relevant to the application, it ought to be in the application book.

MR HANCY:   Yes.  Well, the Registry, at the end of the day, seems to have the final say on that rather than us.  But it is certainly in the submissions and - - -

KIRBY J:   I cannot believe that if a party before this Court insists that a document is relevant to its application and it was part of the record, that it would not be included in the record of the Court.

MR HANCY:   Yes.  Well, it should be and that is why we have produced it to your Honours.  I mean, it is quite clear from our submissions that we are relying on it and we said we would refer to it.

GLEESON CJ:   Well, what is the point you want to make about it?

MR HANCY:   The point about it is that Mrs Bartlett gave evidence through a statement.  Her evidence was tendered through a statement that she and her husband had lived in this property for six months and she had in fact cleaned this glass.  So, she had looked at it closely enough because she had cleaned it and she detected no problem.  She did not realise it did not comply with the standard and she could see no problem with it.  For example, she could see no cracking.

KIRBY J:   She probably cleaned it so well that it became invisible.  I mean, Justice McHugh is right.  Almost everybody in this Court today would know somebody who has walked through a glass door.  It happened in my home:  a visitor walked through a glass door.

MR HANCY:   Northern Sandblasting, we agree, is a decision that at some point has to be reviewed but for the reasons that I have given we say this is not the suitable case and the reason, primarily, is because the appropriate person to give the evidence about what inspection they would have done and what it would have revealed was not called to give that evidence. 

KIRBY J:   You have got yourself accidentally into a big case, Mr Hancy.

MR HANCY:   I take it your Honours do not wish me to address the – or if you do, I will – contract point.

GLEESON CJ:   That does not sound like the main point that is being relied upon in support of this application.

MR HANCY:   No. 

McHUGH J:   The section 11 point.

MR HANCY:   Section 11 and section 42 of the Residential Tenancies Act.  I can deal with that very simply and that is that that clearly was a case that was decided against the applicant on the facts and it is a different issue entirely.  It is a question, one, of what the statute means; what the facts are applying the statute to the - - -

GLEESON CJ:   I think you are back to the only point you had to worry about, Mr Hancy.  This would be a fairly bold - - -

MR HANCY:   The duty of care – general duty of care.  Yes, I have nothing more to add.

GLEESON CJ:   In this matter there will be a grant of special leave to appeal.

AT 11.00 AM THE MATTER WAS CONCLUDED