MR D v COMMISSIONER FOR SOCIAL HOUSING (Residential Tenancies)

[2019] ACAT 107

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MR D v COMMISSIONER FOR SOCIAL HOUSING (Residential Tenancies) [2019] ACAT 107

RT 1053/2017

Catchwords:  RESIDENTIAL TENANCIES – absence of evidence – interference by lessor – duty to investigate – quiet enjoyment – standard maintenance – replacement of carpet – reasonable state of repair – probative evidence

Legislation cited:     ACT Civil and Administrative Tribunal Act 2008 ss 7, 8, 26

Evidence Act 2011 dictionary

Housing Assistance Act 2007 ss 3, 11

Residential Tenancies Act 1997 ss 8, 71, standard terms 52, 54, 55, 56, 57

Cases cited:  Adoncello v Sazdanoff [2006] NSWCTTT 577

Butler v Fairclough (1917) 23 CLR 78

Faulder v Tran [2018] ACAT 80

Gedeon & Anor v Bason & Anor [2018] ACAT 13

Gray v Motor Accident Commission (1998) 196 CLR 1

Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) 110 FCR 157

Jones v Bartlett [2000] HCA 56

Kwok v Tahiri [2015] NSWCATAP 244

Luxford v Department of Housing (Tenancy) [2004] NSWCTTT 641

Marsh v Breen [2012] NSWCTTT 400

Menashi, Bernadette (tenant) v Ly, James Van Quang (Landlord) [1997] NSWRT 162

Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93

Wakelin v London and South Western Railway (1887) 12 App Cas

Wilson v NSW Department of Housing [2005] NSWCTTT 12

Worrall v Commissioner for Housing of ACT [2002] FCAFC 127

Xia v Wang & Bian [2009] ACAT 21

List of

Texts/Papers cited:  Explanatory Statement to the Residential Tenancies Amendment Bill 2016

Tribunal:      Senior Member H Robinson

Date of Orders: 29 November 2019

Date of Reasons for Decision:        29 November 2019AUSTRALIAN CAPITAL TERRITORY  )

CIVIL & ADMINISTRATIVE TRIBUNAL          )  RT 1053/2017

BETWEEN:

MR D

Applicant

AND:

COMMISSIONER FOR SOCIAL HOUSING

Respondent

TRIBUNAL:           Senior Member H Robinson

DATE:         29 November 2019

ORDER

The Tribunal orders that:

1.        The application is dismissed.

…………Signed………..

Senior Member H Robinson

REASONS FOR DECISION

1.           The applicant, Mr D, is a tenant of the respondent, the Commissioner for Social Housing (Commissioner). By way of this application, he seeks compensation from the respondent for a failure to investigate whether the premises he is renting (the property) caused, contributed to or exacerbated his medical conditions. His arguments have several nuances to them, but in essence, he contends that the fibres from an old and allegedly disintegrating carpet may have exacerbated his lung condition, and that the respondent had an obligation to investigate whether this was the case. Alternatively, there may have been other causes, emanating from the premises, which again the Commissioner has an obligation to address. He initially sought orders from this Tribunal for the replacement of the carpet or installation of vinyl flooring in the home, compensation, the provision of a report to the ACT Chief Minister, and an investigation into how the home affected his health. The carpet has been replaced, and the house repainted but the other matters remain in issue.

2.           The issues which remained in dispute as at the time of this decision are:

(a) whether the Commissioner failed in its obligation to maintain the carpet, or indeed the property, to a reasonable standard;

(b) whether the Commissioner is obliged to arrange inspections of the applicant’s property to ascertain the possible cause of the respondent’s respiratory condition:

(i)     pursuant to a contractual obligation under the residential tenancy agreement between the parties (the lease); or

(ii)    pursuant to a statutory obligation under the Residential Tenancies Act 1997 (RT Act) (or any other legislation); or

(iii)   on some other basis; and

(c) if this obligation is established, whether there has relevantly been a breach of the respondent’s obligation to the applicant.

Summary

3.           This is a very difficult matter. It illustrates the vulnerability of public housing tenants, whose capacity to leave their accommodation, even if it is unsatisfactory to them, is usually very limited. However, it also illustrates the extent, and indeed the limits of, the lessor’s responsibility in relation to a tenant, including a tenant who has individual needs.

4.           It is useful to start with a summary of each party’s circumstances and background.

5.           The applicant has a complicated medical history, including serious asthma that has led to hospital admission on several occasions. He is a pensioner, with limited capacity to enter into the private rental market. While residing in the property, the applicant formed the view that fibres from the carpet may be exacerbating his condition. He asked that the Commissioner undertake an investigation to determine whether this was the case, but that investigation “didn’t happen.” Nonetheless the carpet was replaced before the finalisation of these proceeding, with the respondent conceding that it had reached the end of its lifecycle.

6. The Commissioner is a corporation established under section 3 of the Housing Assistance Act 2007. The Commissioner’s functions include administering, on behalf of the Territory, programs and funding arrangements for delivering housing assistance in the ACT, including by way of rental housing assistance and public housing.

7. If an tenant accepts rental housing assistance, including by way of a transfer from another property, the tenant must, unless otherwise agreed by the housing commissioner, enter into a tenancy agreement with the housing commissioner before occupying the dwelling to be provided by way of assistance. The tenancy agreement is subject to the RT Act, as per any other tenancy in the Territory. In other words, there is no separate statutory scheme for public housing in the Territory. The Explanatory Statement to the Residential Tenancies Amendment Bill 2016 confirms that the policy intention remains that public tenancies be regulated in the same way as private tenancies, so that public housing tenants have a “mainstream tenancy experience”.

Background

8.           The applicant first entered into a residential tenancy agreement with the respondent on 9 February 2004 for a different premises. He experienced some medical issues at that premises, and was given an emergency transfer to the present premises, with the Commissioner taking into account the applicant’s claims of asthma, heart condition and safety concerns in authorising the move.

9.           He entered into a tenancy agreement for the premises on 18 February 2009 (the tenancy agreement).

10. Pursuant to section 8(a) of the RT Act, the tenancy agreement contains the standard terms provided at Schedule 1 of the RT Act (the standard terms).

11.         A condition report prepared at the commencement of the tenancy indicated that the carpet was in “good” condition. The report is signed by a representative of the lessor and dated 28 January 2009.

12.         A further inspection was conducted on 18 March 2009. An inspection report was prepared on that date and signed by the tenant and a representative of the lessor. The report describes the floors as “good”, except in the entry and lounge where they are “fair”.

13.         From 2009, the Commissioner began to receive complaints about the applicant’s behaviour. This is relevant only for one reason – the applicant wrote to the respondent and advised that his actions were the consequence of adverse reactions to his asthma medication, which had side effects that included irritability and affected mood. No medical evidence was provided at this time. However, the applicant appears to have provided medical confirmation in 2010 that his medication may affect his emotion, state and mood. The Commissioner was therefore aware of the applicant’s medical condition from at least 2009-2010.

14.         On 15 April 2010 there was a further inspection of the premises. An inspection report was prepared on that date and was signed by the tenant and a representative of the lessor. The floors were identified as being in “fair” condition throughout the premises.

15.         In an email to the Commissioner of 21 September 2010, the applicant alleged that:

Much of the reason why I am experiencing asthma is because of the stress of Housing ACT’s tactics and the inaccuracy and distorted material in the files I have received under FOI.

16.         On 19 October 2011 the Commissioners representative inspected the premises pursuant to an access order. The tenant was not home. An inspection report was prepared, and signed by the representative, only identified the floors as bring in “fair” condition throughout the premises. It also identified mould in the shower.

17.         On 19 October 2012 the lessor conducted a further inspection of the premises. An inspection report was prepared on that date was signed by the tenant and a representative of the lessor. The floors were identified as being in “good” condition throughout the premises. It is unlikely that the condition of the floor improved, so the “good” probably reflects the differing standards of the person who undertook this assessment and the person who undertook the previous one.

18.         On 1 April 2014 an officer employed by Housing had a telephone call with the applicant during which the applicant stated that he believed his carpet may be impacting on his lung condition. The officer requested that the applicant obtain a medical letter supporting this position. This applicant does not appear to have done this.

19.         A condition audit completed at the request of the Commissioner on 9 May 2014 did not identify any issues with the carpet.

20.         On 29 May 2014 the applicant lodged an application with the tribunal seeking compensation for a dilapidated fence and a disintegrating carpet (RT 14/518). The applicant removed the personal-injury component from his claim, which appears to have at least partly been about the carpet, and the matter settled in relation to the fence and loss of privacy.

21.         On 29 January 2015 the Commissioner conducted a further inspection of the premises. A report was prepared and was signed by the tenant and a representative of the lessor. The floors were identified as being in “fair” condition throughout the premises.

22.         On 21 June 2015 the applicant sent an email to the respondent saying he intended to remove the carpet from the property due to his concerns about the carpet impacting his lung condition. This correspondence included a letter dated 25 May 2015 from Dr Mohan Mirpuri, the applicant’s general practitioner, which states, relevantly, that “[the applicant] should change the carpets which might hopefully help to improve his condition.”

23.         On 22 June 2015 the Commissioner advised that the applicant should not remove the carpet himself as he would then incur a “tenant responsible maintenance charge”.

24.         On 3 November 2017, during the course of discussions regarding the scheduling of a routine property inspection, the applicant wrote to the respondent in the following terms:

…as I have been saying for years, I have a severe allergic reaction to this property and that reaction is life-threatening. The carpet is very likely to be the cause of this allergic reaction, which Housing ACT has been advised of four years. (sic)

25.         No medical evidence was provided, but the Commissioner did have a copy of the letter from Dr Mirpuri which recommended that the carpets be changed.

26.         On 27 November 2017 a representative of the Commissioner conducted a further inspection of the premises. A report of that date was signed by the tenant and the representative. The floors are identified as being in “fair” condition throughout the premises.

27.         On 28 November 2017 the applicant issued a notice of remedy to the respondent to repair the carpet.

28.         On 13 December 2017 the applicant filed this application in the tribunal.

29.         The matter was set down for conference on 21 December 2017. By consent the respondent agreed to replace the carpet by 31 January 2018 and the matter was adjourned for a further conference. The carpet replacement was completed on 23 January 2018.

30.         On 1 February 2018 the matter was again set down for conference and the tribunal made filing directions.

31.         On 8 March 2018 the applicant filed an amended application. Two further amended applications were filed on 9 July 2018 and 2 January 2019.

32.         On 25 May 2018 Delcorp property services attended the property to conduct an inspection regarding mould growth, leaks in the ceiling and moisture seeping through the external and internal walls. Delcorp took samples from the property. On 30 May 2018 a mould assessment laboratory prepared an analysis report regarding the samples. The report showed no visual evidence of mould, although higher levels were identified through air testing. The air testing results were noted as “…definitely not consistent with the visual condition of the property.” The report was largely inclusive as to the cause of the mould, but the Commissioner agreed to paint the premises as an alternative means of dealing with this issue. This was done in October 2018.

33.         On 31 May 2018 the matter was set down for a conference. The parties agreed to consent orders whereby the Commissioner would organise and complete an asset scope of works on the property and provide a copy of the mould report to the applicant.

34.         On 22 June 2018 the matter was set down for a conference again and directions were made for hearing.

35.         On 19 July 2018 the risk and compliance manager for Spotless attended the property at the request of the Commissioner. He noted the property was in good condition and made a suggestion that while the heater was in working condition it should be replaced due to being old.

36.         In the applicant’s first amended application dated 2 January 2019 the applicant sought following orders:

(a) That the tribunal make a specific performance order for the respondent to finalise the recommended investigations.

(b) That following the conclusion of the matter all subpoenaed material be destroyed.

(c) That the tribunal make a specific performance order for a report to be prepared regarding the proceedings and for that report to be “brought to the attention of the ACT Chief Minister”.

(d) That the tribunal make a compensation order for the jurisdictional maximum.

37. At the hearing on 19 February 2019 the nature of the applicant’s claim changed a little, in that the respondent suggested that the Commissioner also breached section 71(1)(c) of the RT Act for interfering with the applicant’s right to quiet enjoyment of the premises and that he sought a reduction of rent on this basis.

Preliminary comments about the Tribunal’s jurisdiction

38.         The applicant filed lengthy submissions, setting out a detailed argument that as to why the respondent owed him a duty of care and why it had failed in that duty. The Tribunal acknowledges the considerable work that went into these submissions.

39. The difficulty, however, is that to the extent that these submissions address the Commissioner’s “breach of its duty of care” as a lessor, these submissions do not address the issue before the Tribunal. ‘Duty of care’ and ‘breach of duty’ are concepts that arise under the common law of negligence. Such claims can be commenced in this Tribunal, but must be commenced in the civil jurisdiction. They are governed by Chapter 4 of the Civil Law (Wrongs) Act 2002, and require the establishment of a duty of care of a relevant standard.

40. This application was brought under the RT Act. It was heard in the Tribunal’s residential tenancies jurisdiction. Accordingly, to the extent that causes of action and/or remedies are available to the applicant in this matter, they must be those that are available in the Tribunal’s residential tenancies jurisdiction under that Act.

Preliminary comments about evidence

41.         One point of contention in these proceedings was the degree to which the applicant was required to establish a connection between the carpets, or some other part of his home, and his health and wellbeing. It is therefore necessary to make some observations about how ‘evidence’ is used in the Tribunal.

42. Sections 8 and 26 of the ACAT Act provide that the tribunal is not bound by the rules of evidence and may inform itself in any manner in which it see fit. However, while the tribunal has a greater flexibility than would usually be available to a Court it still has an obligation to make findings of fact based upon logically probative material. The rules of evidence provide guidance as to what evidence should be considered and, perhaps more importantly, the weight that can be given to any particular piece of it.

43.         Similarly, the Tribunal has an overarching obligation afford to both parties natural justice. Butterworth’s Concise Australian Legal Dictionary describes natural justice as:

The right to be given a fair hearing and the opportunity to present one’s case, the right to have a decision made by an unbiased or disinterested decision-maker, and the right to have that decision based on logically probative evidence

44.         ‘Probative’ evidence is evidence that could rationally affect the probability of the existence of a fact in issue.

45.         The applicant in this case did not submit any medical, expert or professional evidence connecting the state of the carpet, or anything else in his house, to his medical condition. Rather, he relied upon direct evidence of his lived experience in the house. For example:

(a) “The day I moved in the trouble started with my breathing”.

(b) “The carpet was very dusty – the vacuum cleaner overheated and melted.”

(c) “I investigated … I found that the filter was clogged with carpet fibres for a New Zealand wool and brittle, all broken. It wasn’t, you know, strands of string – fine pieces of dust, wool dust.”

(d) “I’m perfectly okay as long as I don’t move in my house.”

(e) His “chronic asthma situation has eased significantly following the carpet’s removal.”

46.         The Tribunal does not doubt the applicant gave genuine and honest evidence as to his belief that the carpet in his property was deteriorating, that it was releasing fibres, and that those fibres may have been a contributing factor to his asthma. Nonetheless, while this evidence was no doubt honestly given, it was anecdotal and is not sufficient for the Tribunal to conclude that, even on the balance of probabilities, the carpet fibres caused, worsened or contributed to his asthma.

47.         The applicant claimed to have some documentary evidence about the carpet fibres in the form of letters, but no report (other than that of Dr Mirpuri) was put before the Tribunal and the Tribunal therefore cannot properly consider it.

48. Whether the matter is dealt with as a civil dispute in negligence or an application under the RT Act, the onus is on a party making a factual assertion to prove it. As this is the applicant’s claim he is required to satisfy the Tribunal of the necessary facts on the balance of probabilities. This must be done using relevant, probative evidence. This anecdotal evidence relied upon by the respondent was not, of itself, sufficient to establish to a satisfactory degree a causal link between the carpet and the applicant’s medical condition.

49.         I note, for completeness, that it is the applicant’s position as set out in his submissions that he does not need to prove any link between the carpet and his injury:

There is an obsession about me not providing proof of the carpet’s condition. Why should I? The carpet’s disintegration is not the issue…The carpet is much older than the ten years I have been in the premises – it was cheap, badly worn in two places when I moved in, and is made of a re-dyed and brittle wool…it is not my carpet…they were replacing their carpet.

I am [not] blaming the carpet … My complaint is about my medical condition being ignored. Negligence. I doubt is anywhere I have directly said the carpet was the problem. I am likely to have said that the carpet may be, or could be, or could possibly be a reason because the carpet was disintegrating…The carpet was a likely problem – it was a suggestion, a suggestion of somewhere to commence and investigation. Nothing more.

…

The issue is that I asked Housing ACT to investigate why I was having allergic reactions to their property.

50.         While this is correct insofar as at least one his grounds go, the fact there is no probative evidence linking the deterioration of the carpet to the applicant’s medical condition has meant this matter has been run in a very limited somewhat disordered manner, and that has compromised the applicant’s capacity to present an arguable case. The lack of evidence or causation and damage would also make the calculation of damages extraordinarily difficult, even if the applicant were successful given that contractual damage is compensory in nature, and intended to make good loss, not punish the respondent, and exemplary damages are not available.

Consideration of the applicant’s case

51.         The applicant’s case in the residential tenancies jurisdiction can be summarised as raising two issues:

(a) The Commissioner, as lessor, failed to maintain the property (ie. the carpet); and

(b) The Commissioner, as lessor, failed to undertake necessary investigations:

(i)     as a result of which, the applicant suffered loss that should be compensated; or

(ii)    the Tribunal should order the Commissioner to undertake the relevant investigations and maintenance activities.

Did the respondent fail to maintain the property to a reasonable standard?

52.         The first question before the Tribunal is whether the respondent in fact failed to maintain the carpet, and what compensation the applicant is entitled to if they did not.

53.         Clause 54 of the standard terms provides that the lessor must provide the premises in a reasonable state. Clauses 55 to 57 of the standard terms that provide that it is the lessor’s responsibility to maintain the premises. In particular, Clause 55 of the standard terms provides that:

55(1)          The lessor must maintain the premises in a reasonable state of repair having regard to their condition at the commencement of the tenancy agreement.

54.         In Faulder v Tran the operation of these provisions was discussed as follows:

…The lessor ‘must’ maintain the premises and make the repairs within this statutory time frame unless there is agreement with tenant for a longer period. The ‘reasonableness’ requirement goes to the state of the repair and not the efforts made by the lessor, that is, the lessor must undertake the maintenance and repairs and the result must be to render the premises in a ‘reasonable state of repair’… is not sufficient that the lessor take reasonable steps if that does not result in the premises being in a ‘reasonable state of repair’.

Whether premises are in a ‘reasonable state of repair’ at the commencement of the tenancy is a question of fact.

55.         In essence, the provisions require that the lessor guarantee that the property is in a reasonable condition at the start of the tenancy and maintain the condition of the premises for the duration of the agreement with reference to the condition at the start of the tenancy.

56.         Whether the premises are in a ‘reasonable state of repair’ at a particular time is a question of fact to be objectively assessed. It requires consideration of, among other things, the nature of the thing or service said to require repair and the age of, rent payable for and the prospective life of the subject premises.

57.         The weight of authority indicates the standard is an objective one. For example, in Menashi, Bernadette (tenant) v Ly, James Van Quang (Landlord) [1997] NSWRT 162 Member Anforth, in considering section 25(1)(a) and (b) of the NSW Act stated, stated inter alia that:

…If a difference was intended I suspect that the habitability standard was intended to convey a more objective standard … a reasonable state of repair is a more relative (but not subjective ) standard

... The conclusion I draw from the above is that the landlord is obliged to hand the premises over to the tenant, at the commencement of the lease, in a reasonable state of repair having regard to its age, rent payable and prospective life of the premises; and that the state of repair must at least meet the minimum standards inherent in the contemporary understanding of the term fit for habitation.

58.         No higher burden is placed upon a community housing provider that upon any other lessor: Luxford v Department of Housing (Tenancy) [2004] NSWCTTT 641. This is, in my view, especially the case in the Australian Capital Territory, where public housing is subject to the RT Act in the same manner as any other lease.

59.         Importantly, the objective standard also applies equally in reverse – when considering what is ‘fair wear and tear’, the test is an objective, community related standard, not the subjective opinion of the lessor. There are strong policy reasons for this. Given different community standards in terms of house maintenance, it would not be appropriate to import or insert subjective considerations into contractual maintenance obligations of lessors and tenants.

60. Consequentially, I am satisfied that there is no contractual obligation under the standard terms, or legislated under the RT Act, placed upon a lessor (even a public housing provider) to have regard to the subjective needs or desires of the tenant when considering whether a property is in a reasonable state of repair. The test asks only whether an objectively reasonable standard is met.

61.         Turning to the facts at hand, there is no photographic evidence of the state of the carpet, whether at the commencement of the tenancy or just prior to its replacement. This is unfortunate, as in this Tribunal’s experience, it is usual for private sector ingoing inspection reports (at least) to contain photographs. The Tribunal was also not told by the Commissioner how old the carpet was at the commencement of the tenancy.

62.         The condition reports that are in evidence, signed by the respondent and usually also by the applicant, consistently report the carpet as in ‘good’ condition near the start of the tenancy, and in ‘fair’ condition until they were replaced. The applicant has not annotated or disagreed with these assessments. As such, I accept them as a contemporaneous record of the state of the carpet upon inspection. ‘Fair’ condition is not an unacceptable condition.

63.         There is no other documentary evidence as to the state of the carpets. The applicant has not provided independent evidence to substantiate his allegation that the carpet was faulty or “disintegrating” into dust. He had given oral evidence, as set out above, as to his experience of the carpet. I do not discount his evidence, but to the extent it is contrary to the documented inspection report, I accept the report. The purpose of such reports is, after all, to have a signed record of the condition of the property at the time of the inspection.

64.         The evidence of Ms Jacquie Daniel, an officer of ACT Housing, in both her witness statement and in her oral evidence, is that no work orders for carpeting had been raised on the Spotless information portal until December 2017. The Spotless portal also did not contain any reference to faulty carpeting being identified. It does not appear that any problem with the carpet prior was identified by the lessor prior to December 2017. While not conclusive evidence as to the state of the carpet, this evidence also weighs slightly in favour of the respondent’s position.

65.         On balance, I am satisfied that the carpet, while likely old and of average quality, was in good to fair condition when the tenant commenced the tenancy, and on the lower side of fair shortly before it was replaced. This is not unusual or unreasonable. The Tribunal is not satisfied that the Commissioner’s maintenance obligations were not met.

Is the Commissioner is obliged to arrange inspections of the applicant’s property to ascertain the possible cause of the respondent’s respiratory condition

66.         The respondent’s secondary, and more controversial argument, is that the respondent had an obligation to investigate whether the carpet, or something else in the premises, was the cause of his condition or exacerbated it. In other words, does a lessor have a legal obligation to investigate where a tenant alleges that the property is causing them illness?

67. The application was, in parts of the applicant’s submission, phrased as a ‘duty of care’. However, as set out above, this is not a claim for general negligence, it is a claim brought under the RT Act. Any obligation the lessor has to undertake investigations must be founded in that Act or in the contractual terms between the parties. These obligations include to ensure is ‘habitable’, as assessed to an objective standard, and to ensure that it is maintained, also assessed to an objective standard.

68. There is nothing express in the RT Act or standard terms to suggest the lessor must investigate at the request of a tenant an alleged link between the state of something in the premises and a medical condition that the tenant suffers from, let alone to ensure that the premises are not, subjectively, impacting on a tenant’s health.

69.         The closest basis for such an obligation lies under clause 52 of the standard terms which sets out a statutory version of what is known in common law as the tenant’s ‘right of quiet enjoyment’. It states:

the lessor must not cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises.

70.         The question here is whether some act or omission by the lessor interfered with the tenant’s reasonable enjoyment of the property. There is no requirement that the tenant demonstrate that the lessor was acting unreasonably or is in breach of some other term of the agreement.

71.         To make out a claim for a breach of clause 52, a tenant must establish that:

(a) there is “interference”;

(b) with the tenant’s “reasonable peace, comfort or privacy”;

(c) that is caused or permitted by the lessor; and

(d) the interference caused to the tenant’s use of the premises is substantial and not trivial, “but it does not have to be so severe as to deprive the tenant of the whole of the benefit of the tenancy (Hawkesbury Nominees P/L v Battik P/L [2000] FCA 185; Byrnes v Jokana P/L [2002] FCA 41)”.

72.         In this case, the issue is an alleged lack of action by the lessor. Could a failure to act be to cause or permit an ‘interference’?

73. The term ‘interference’ is not defined in the RT Act, but turning to the common law meaning, the Macquarie Dictionary defines the term to mean:

noun 1.the act or fact of interfering.

‘Interfere’ or ‘interfering’ is in turn defined to mean, relevantly:

1.     to interpose or intervene for a particular purpose.

2.     to take a part in the affairs of others; meddle.

3.     to come into opposition, as one thing with another, especially with the effect of hampering action or procedure.

74.         In other words, to ‘interfere’ is to interpose, intervene or become involved with something. This implies some kind of positive action, or at least a failure to do a necessary act. For example, in Wilson v NSW Department of Housing [2005] NSWCTTT 12, the NSW RTT considered whether a lessor was required to install blinds in circumstances where the tenant’s accommodation was visible from the street, the grounds and surrounding flats. The RTT found the tenant’s right to quiet enjoyment did not extend to a positive action to maintain privacy in the way requested.

75.         Nonetheless, some authorities indicate a failure to carry out repairs to a property may amount to ‘permitting’ an interference where it causes inconvenience or distress. Similarly, a lessor may be required to take reasonable steps to ensure that neighbours in a body corporate do not create excess noise. However, any such obligation would need to be founded in an obligation to make the repairs to begin with, such that the lessor can be said to have ‘caused’ or ‘permitted’ the interference.

76.         Having regard to the above principles, I accept that there may be circumstances where a tenant’s quiet enjoyment of the premises may require that a lessor investigate potential breaches of quiet enjoyment. For example, if a tenant complains of noise in the ceiling cavity, the lessor would generally be expected to investigate that noise and determine whether it be possums, rats, birds or something else, and ameliorate it. To do otherwise would allow the breach to continue in such a way that the tenant may be entitled to compensation. However, these cases involve circumstances where there is an objectively discernible interference in the tenant’s quiet enjoyment, and it is contended that the lessor has some capacity to control it. Here, what the applicant contends for is an obligation on the part of a lessor to identify whether there is an interference at all.

77. There is no such obligation upon a lessor under the RT Act or the terms.

78.         The applicant contends that an obligation to investigate arises in this case because of the relationship between the applicant and the Commissioner, and particularly the Commissioner’s knowledge of the applicant’s vulnerable position and medical issues. The applicant effectively contends that his ‘quiet enjoyment’ of the property is contingent upon the Commissioner ensuring that it is safe for him to quietly enjoy.

79.         As noted above, however, the statutory contract that governs the relationship between the Commissioner and a public housing tenant is in substantially the same terms as any other tenancy agreement. The limited circumstances where they differ are not relevant to these proceedings.

80.         The Commissioner points to the broader implications that the imposition of a general duty to investigate would impose an obligation:

... capable of being activated by the tenant no reason other than our own belief that a medical condition was caused or exacerbated by the state of the premises are potentially requiring the landlord to meet the cost of expensive medical or other testing with no right of recovery against the tenant if the link is established. It may also mean the landlord may need to obtain access to the information about attendance medical health practitioners fundamental intrusion into the tenant’s privacy.

81. I share the Commissioner’s concerns about the policy implications of imposing a duty of the kind contended by the applicant. The obligation to maintain a property has long been considered, at least in the context the RT Act, to be an obligation to maintain the property to an objectively reasonable standard.

82. That said, the lack of an obligation under the RT Act does not amount to a lack of an obligation generally. There is no doubt that at civil law a lessor owes a general duty to take care where an injury or damage is reasonably foreseeable. Consequently, when presented with credible evidence that something in the premises may be dangerous to an occupant the prudent lessor should seriously considering investigating so as to avoid liability if the tenant actually does suffer damage or loss from it.

83.         Ultimately, I am not satisfied that there is an interference in the applicant’s quiet enjoyment of the property, because I am not satisfied, on probative evidence available to the Tribunal, that there is a connection between the applicant’s medical conditions and the property. I am also not satisfied that the tenant’s enjoyment of the premises has significantly diminished as a result of any failure by the respondent to investigate that cause of any interference. To the extent that the applicant has suffered an injury, in the form of adverse mental health or stress, that injury may be caused by his belief that the carpet is causing his injury – but that is not, of itself, an interference caused by the lessor.

84.         Had the tenant provided the lessor with a medical or other opinion that substantiated his concerns, the situation may be different, and there may be grounds for awarding damages for breach of clause 52 of the standard terms. But he provided no such evidence. Therefore, I cannot find any direct link between the ‘interference’ and the respondent’s actions.

85.         I can also find no basis upon which the Commissioner is contractually obliged to investigate whether the premises was causing the applicant damage.

86.         Accordingly, I have little option by to dismiss the application.

Final observations

87. I wish to reiterate again that I accept that the applicant gave truthful evidence about his experience of the premises. By the later years of his tenancy, the carpet in his house was clearly old and worn and, by the time these proceedings came before the Tribunal, in need of replacement. However, I am not satisfied that the respondent’s failure to replace the carpets earlier amounted to a failure to maintain the property, and I am not satisfied that the RT Act obliges the lessor to investigate whether the carpet may have contributed to the applicant’s medical condition.

88.         In closing, I will say that the situation may be different where an incoming tenant advises the lessor of a medical condition, and what the tenant required to address that medical condition in terms of habitability, and the parties reach an agreement that includes, effectively, a side-warranty or additional contractual terms. In the case of the Commissioner, this may extend to circumstances where a person who is on the wait-list provides evidence of a medical condition such that this can be taken into account in determining whether a property is suitable as at the time of commencement of the tenancy. However, these are not the facts or grounds before me, and therefore I cannot explore this theoretical scenario further.

89. Accordingly, while I accept the applicant’s evidence as to his experiences living in the premises, he has not made out a legal basis for relief under the RT Act, or the Standard Terms, and the application is dismissed.

………………………………..

Senior Member H Robinson

HEARING DETAILS

FILE NUMBER:

RT 1053/2017

PARTIES, APPLICANT:

Mr D

PARTIES, RESPONDENT:

Commissioner for Social Housing

COUNSEL APPEARING, APPLICANT

N/A

COUNSEL APPEARING, RESPONDENT

N/A

SOLICITORS FOR APPLICANT

N/A

SOLICITORS FOR RESPONDENT

ACT Government Solicitor

TRIBUNAL MEMBERS:

Senior Member H Robinson

DATES OF HEARING:

19 February 2019