Fabre v Lui

Court of Appeal (NSW)|2015-04-30|Before: Basten JA, Macfarlan JA, Meagher JA

Solicitors: Barwick Boitano Lawyers (Appellant) Hunt & Hunt Lawyers (Respondent) File Number(s): CA 2014/189196 Decision under appeal Court or tribunal: District Court Jurisdiction: New South Wales Date of Decision: 29 May 2014 Before: Flannery SC DCJ File Number(s): DC 2012/259232

Judgment

BASTEN JA: In December 2010, the appellant was the lessee of rented premises. When cleaning the range hood over the cooking stove, the hood fell from the wall, causing her injury. She brought proceedings for damages in the District Court, against, relevantly for present purposes, her landlord, the lessor of the premises.
The range hood had been installed by the landlord (the respondent to the appeal) whilst she (the landlord) was living in the premises. She did not undertake the installation herself, but employed a tradesman/handyman to do the work.
As the case was argued on appeal, the only basis of liability relied upon was negligence of the landlord in engaging the tradesman to install the equipment. Thus, it was not in dispute that the installation was negligent, the inference being that the installer was either incompetent or careless (or both). However, it was not in dispute that the tradesman was an independent contractor for whose negligence the respondent was not vicariously liable.
In circumstances more fully explained by Macfarlan JA, with whose conclusions and reasons I agree, the only material ground of negligence relied upon by the appellant was a failure by the respondent to make appropriate inquiries of or about the installer, sufficient to establish his competence. In failing to make such inquiries, it was contended that she was in breach of her duty of care towards any person who might in the future occupy the premises, clean them, or otherwise undertake activities near the kitchen stove. Nor was it in dispute that the respondent owed a duty of care to the class of persons so identified.
Deciding whether the respondent was negligent required the application of principles stated in s 5B of the Civil Liability Act 2002 (NSW). Again, certain factors were not seriously in dispute. Thus, the Court should accept that there was a risk of injury if the range hood were not properly affixed to the wall. That risk was not insignificant and the harm which might result was likely to be serious if a person were in the immediate vicinity. The only real issue was as to the precautions which a reasonable person in the position of the respondent would have taken to avert or minimise the risk of such harm.
The only proposed precautions were inquiry and possibly investigation as to the qualifications of the tradesperson. It was not suggested that he or she would require any formal trade certificate or builder's licence. Nor was it demonstrated that a person in the position of the respondent should be expected to make any particular inquiries with respect to the individual she sought to engage.
As Macfarlan JA notes, there was almost certainly some conversation between the unknown tradesman or handyman and the respondent, the details of which were not the subject of inquiry at the trial. The appellant did not demonstrate on the evidence, or by way of inference from the known facts, that a reasonable person in the position of the respondent would have taken any particular precautions or that, if they had been taken, they would reasonably have required the engagement of someone with better qualifications.
Accordingly, and for the reasons more fully expressed by Macfarlan JA, the appeal must be dismissed with costs.
MACFARLAN JA: On 18 December 2010 the appellant, Ms Christine Fabre, was severely injured when a stove rangehood that she was cleaning fell onto her from its location on the kitchen wall. The appellant and her family were lessees of the premises from the first respondent, Ms Bonnie Lai Chun Lui, under a Residential Tenancy Agreement dated 11 June 2010.
The appellant subsequently commenced proceedings in the District Court claiming damages from the first respondent, the second respondent and the managing agent of the property. The proceedings against the managing agent were settled prior to the hearing and the claim against the second respondent, the registered owner of the property and daughter of the first respondent, was withdrawn at the commencement of the appeal. In these circumstances it is appropriate hereafter to refer to the first respondent as the respondent.
Notwithstanding the broader terms in which the Further Amended Statement of Claim was expressed, the District Court proceedings were opened and conducted on a confined basis, namely, that the duty of care that the respondent owed to the appellant was unreasonably delegated to a contractor who was not competent. As explained on appeal, the appellant's case was, and is, that the respondent owed the appellant a duty of care because the respondent occupied the premises at the time and arranged for the rangehood to be installed.
The appellant did not rely on any duty the respondent may have owed to her as the landlord and, accordingly, she did not rely on the principles expounded in Northern Sandblasting Pty Ltd v Harris 188 CLR 313; Jones v Bartlett [2000] HCA 56; 205 CLR 166 and Sakoua v Williams [2005] NSWCA 405; 64 NSWLR 588 in relation to duties of that type.
Furthermore, on appeal the appellant abandoned a claim dealt with by the primary judge based on a provision of the Residential Tenancy Agreement requiring the landlord "to make sure the residential premises are … fit to live in" in addition to a claim founded on s 25 of the now repealed Residential Tenancies Act 1987 (NSW) that was abandoned earlier.
For the reasons given below, the appellant's challenge to Flannery SC DCJ's decision of 29 May 2014 dismissing the appellant's claim in negligence should be rejected. As a result the appeal should be dismissed.

Factual circumstances

In December 2007, the respondent, who was living in the house, discovered that her stove rangehood was not working, apparently as a result of an electrical storm which affected a number of appliances. In evidence-in-chief she said that in late 2007 she engaged a "tradesman from the local paper" to install a replacement rangehood (transcript p 74). She paid the contractor $250 in cash and was unable later to identify him. In cross-examination she said that the "local paper" referred to the person as a "handyman[/]tradesman" and agreed that she made no enquiries about his experience or "whether he had a trade", explaining that it was difficult to find someone to do the job because it was the Christmas period (transcript p 87). She said that she did not have any experience in the installation of rangehoods and did not inspect the contractor's work (transcript pp 88-89).
In early 2008 the respondent and her family moved out of the property and engaged an agent to find tenants and manage the property. The appellant, her husband and her son were the third group of tenants to lease the premises.
Neither party sought to elicit evidence from the respondent about the conversations that must necessarily have occurred between her and the contractor relating to, for example, her request that he do the job, his acceptance, the arrangements for him to purchase and bring with him a new rangehood and his subsequent performance of the job.
The expert evidence of a consulting engineer, Mr Colin Simpson, was that the rangehood had not been properly mounted. It had been affixed to the plasterboard wall behind the stove with only two screws when, in accordance with the manufacturer's recommendations, at least four were required (Report p 12). It was clear from this evidence that the installation was incompetently performed and the primary judge proceeded on this basis. The respondent did not lodge a Notice of Contention on this (or any) issue but argued on appeal that the contractor may have adopted the method used to install the old rangehood, including using the same screw holes. Even if this was so, the contractor's failure to appreciate the inadequacy of using only two screws rendered the relevant installation incompetent.

The judgment at first instance

The primary judge appears to have proceeded on the basis that Hodgson JA's observations (made with the concurrence of Gyles AJA and Nicholas J) in Bevillesta Pty Ltd v Liberty International Insurance Company [2009] NSWCA 16 identified the appropriate principles for her to apply: "53 There is no doubt also that this occupier's duty of care is 'delegable', in the sense that it may be discharged in whole or in part by the occupier's exercise of reasonable skill and care in engaging someone else to take steps to keep the property safe either generally or in particular respects. Discharge of the duty in this way requires reasonable skill and care in the selection of the other person, in arranging the terms of engagement of that person, and in confirming that the person does take appropriate steps. If it is reasonable for an occupier to seek to discharge or partly discharge the occupier's duty in this way, and the occupier does exercise reasonable skill and care in all these respects, then if a person coming on to the property is injured due to the failure of the other person engaged to exercise reasonable skill and care to keep the property safe, the occupier may escape liability."
Her Honour's reasons for rejecting the appellant's negligence claim were as follows: "64 Although I am satisfied that 1) it was foreseeable that if reasonable care was not taken when selecting the tradesman to install the range hood, a tenant might suffer injury, and 2) the risk was not insignificant, I do not accept that a reasonable landlord in the position of the first defendant, knowing what she knew, and could reasonably have known, would have taken the precautions Mr McCarthy says they should have taken. 65 The first defendant had no experience in installing rangehoods, and did what I consider a reasonable landlord would do in those circumstances: she looked in a local newspaper for a tradesman, found an advertisement for a handyman/tradesman, spoke to him about the job and he not only agreed to install it, but purchased one on her behalf and then installed it. 66 Although Mr McCarthy submitted that I would take judicial notice of the fact that the amount the first defendant paid for the purchase and installation was very low, I am not prepared to do so, as I do not know how much a rangehood would have cost in 2007, nor what would have been a reasonable price to install it. 67 As regards the fact that the tradesman asked for and was paid in cash, I agree that is a relevant factor, however not only is it a common occurrence, but it does not necessarily say anything about the competence of the tradesman seeking to be paid in this way. 68. As regards the failure by the first defendant to make any enquiries about the background, skills, or experience of the contractor, I agree with Mr Nolan that in finding a handyman/tradesman, who the first defendant believed and who held himself out to be capable of installing a new rangehood, which belief was confirmed when he 1) arrived at the property in possession of a replacement rangehood, and 2) removed the existing rangehood and fitted the new one, which then worked, she had exercised reasonable skill and care in selecting him".

Issues on appeal

On appeal the appellant submitted that the primary judge failed properly to apply the principles stated in s 5B of the Civil Liability Act 2002 (NSW) and that as a consequence this Court should re-determine the question of negligence. In this respect it was submitted that the Court should find that, in engaging the contractor, the respondent failed to make enquiries about the qualifications and experience of the contractor that a reasonable person in her position would have made. Her attempt to delegate the performance of her duty of care to the contractor was unreasonable and therefore ineffective.
In response, the respondent contended that she had acted reasonably in engaging the contractor, having based her belief that the contractor was competent on his representation that he was able to install the rangehood and by his arrival with a replacement, his fitting of it and its successful operation.
The respondent submitted that her duty, being related to residential premises, was lower than it would have been had the premises been commercial (see Jones v Bartlett at [169] and [251]). She submitted that requiring a householder such as her to make enquiries (whether by asking questions or otherwise) about the qualifications and experience of a handyman employed to do simple jobs around the home would impose an unreasonable burden.

The nature of the alleged duty

As noted earlier, the appellant's case is based on the respondent's breach of her duty of care as occupier of the premises at the time that the rangehood was installed. This is a duty to take reasonable care to avoid a foreseeable risk of injury to an entrant "using reasonable care on his part for his own safety" (Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479 at 488; Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 330 at [45]). There was no suggestion in the present case that the appellant did not take reasonable care for her own safety.
The duty was owed to the appellant because, although the respondent did not know of her in December 2007, she came within the class of persons whom the respondent should have foreseen might suffer injury if the respondent did not exercise care in relation to the safety of the premises, in this case in relation to the installation of the new rangehood in December 2007. This duty does not have to be discharged personally. The respondent was able to discharge it by taking reasonable steps to engage a competent contractor to do the relevant work (Bevillesta Pty Ltd v Liberty International Insurance Company at [53]; Laresu Pty Ltd v Clark [2010] NSWCA 180 at [60]; Indigo Mist Pty Ltd v Palmer [2012] NSWCA 239 at [7]; Jones Lang LaSalle (NSW) Pty Ltd v Taouk [2012] NSWCA 342 at [35]). Failing proof of reasonable delegation, the respondent would be liable to the appellant in negligence for the consequences of the dangerous situation created by the handyman/tradesman inadequately affixing the rangehood to the kitchen wall (Laresu v Clark at [69]).
While the respondent's duty arose when the work was done at her behest, it did not have practical content in relation to the appellant until the date that she came to occupy the property. Whether there was a subsisting breach of the respondent's duty needs to be assessed at the date of the appellant's accident as events occurring between the installation of the rangehood in 2007 and the accident cannot be ignored. For example, a breach of the duty at the time of installation may have been rectified by additional support being given to the rangehood before the date of the accident. In the same way, whilst a reasonable person might have well-based concerns about the safety of an appliance such as the rangehood at the time of its installation, lengthy subsequent use, without incident, might reasonably assuage that concern. These are factual issues to be considered when determining whether there was a subsisting breach at the time of the accident.

Section 5B of the Civil Liability Act

As the respondent conceded in oral argument, there is force in the appellant's submission that the primary judge did not follow "the framework" specified in s 5B of the Civil Liability Act. Whilst the absence of reference to the specific terms of s 5B in a primary judgment does not of itself indicate error, it is necessary to address the substance of the section's elements (Laresu v Clark at [42]). The primary judge addressed the correct ultimate question of whether a reasonable person in the respondent's position would have taken the identified precautions but her Honour did not, at least explicitly, have regard to the matters that s 5B(2) requires be considered, being: the probability that the harm would occur if care were not taken; the likely seriousness of the harm; the burden of taking precautions to avoid the risk of harm; and the social utility of the activity that created the risk of harm.

Reassessment of the issue of breach

When pressed to identify the steps that he contended that the respondent should have taken, the appellant's counsel submitted that the respondent should have made oral enquiries about the handyman's trade qualifications or experience and sought objective evidence such as details of his licence if he was a carpenter. These submissions raise a real question of whether such enquiries would have avoided the course of events. This question of causation need not however be pursued because, for the reasons appearing below, I do not consider that the respondent acted negligently in failing to make the enquiries. It is unclear in any event to what extent, if at all, the causation issue was agitated at first instance.
On appeal the appellant's counsel confirmed that his client's case was that the respondent had negligently engaged a contractor. This elicited a submission by the respondent's counsel that s 5B of the Civil Liability Act was inapplicable because the case was therefore not one of a negligent failure to take precautions as contemplated by s 5B(1) but rather a case of a negligent positive act. However, the substance of the appellant's claim, considered at a high level of generality, was that the respondent breached her duty of care to her as an entrant by failing to take precautions in relation to a foreseeable risk of injury to a class of persons into which the appellant fell. The respondent's assertion that she took reasonable care to appoint a competent contractor who should have ensured that the risk was minimised or eliminated, and that the appellant denied this, did not alter the character of the appellant's case which was, in broad terms, as I have described and therefore within the ambit of s 5B(1).
The appellant submitted that the primary judge erred by taking into account, in assessing what a reasonable person in the respondent's position would have done, that the respondent had no experience in installing rangehoods. As a general rule, a defendant's individual attributes are not imputed to the reasonable person (see Glasgow Corporation v Muir [1943] AC 448 at 457; Joslyn v Berryman; Wentworth Shire Council v Berryman [2003] HCA 34; 214 CLR 552 at [32] per McHugh J). However, it is unnecessary to examine the ambit of this principle here because the present case should be determined on the basis that the ordinary householder, being the relevant reasonable person, would not ordinarily have experience in installing rangehoods. The respondent therefore had no relevant characteristics different from those of the ordinary householder. Accordingly I reject the appellant's submission.
Addressing s 5B(2)(a), I conclude that "the probability that the harm would occur if care were not taken" in retaining a competent installer was high because of the consequent risk that a heavy appliance might be affixed (inadequately) to the wall of a frequently used kitchen. As to s 5B(2)(b), I similarly conclude that there was a significant possibility of very serious harm occurring if care were not taken because the rangehood was heavy and, if not affixed properly, could fall on a person whilst they used the stove below.
As to s 5B(2)(c), the appellant submitted that "the burden of taking precautions to avoid the risk of harm" was not great because questions about the handyman's experience or qualifications could easily have been asked and alternative quotes could have been sought if necessary. Whilst questions could easily have been asked, seeking alternative quotes might have been inconvenient and have led to delay, especially given that the respondent said in cross-examination that she had not made enquiries about the handyman's qualifications "because it [was] around Christmas time [and] nobody can do any job [sic]" (transcript p 87). As noted earlier, whether such steps would have led to the engaging of a competent contractor, thus reducing or eliminating the risk of harm, does not appear to have been addressed at first instance.
As to s 5B(2)(d), "the social utility of the activity that create[d] the risk of harm" was significant because the use of a stove top, and of a rangehood to remove cooking fumes, are conducive to the clean and orderly performance of the essential household activity of cooking.
Although some of these factors point towards it being necessary to make enquiries, I do not consider that a reasonable person in the respondent's position would necessarily have made the enquiries identified by the appellant. Certainly a reasonable person might have done so but the question posed by s 5B(2) is whether a reasonable person would have taken the relevant precautions.
The following factors are relevant to this conclusion: 1. Although the work needed to be done carefully in order to avoid injury, the work was of a minor kind. It was in the nature of an "odd job" or "small repair", those being tasks that a "handyman" could, according to the ordinary usage and Macquarie Dictionary definition of that word, be expected to do. 2. The contractor held himself out as a "tradesman" or "handyman/tradesman" in the respondent's local newspaper, that being a source from which one could reasonably expect to identify such a contractor. 3. The respondent was not asked by either party about her conversations with the contractor however it can readily be inferred that he indicated to her his readiness and willingness to do the work, including obtaining the relevant replacement rangehood. This clearly carried with it an implicit representation by him of his ability to complete the work, to an acceptable standard. 4. This implicit representation was further supported when the handyman arrived in possession of what was apparently a suitable replacement rangehood, and 5. he removed the existing rangehood and installed the new one, without any difficulty apparent to the respondent.
Although the rangehood stayed in place and operated without evidence of any defect for some three years after its installation, I would not regard this as indicating, by itself, that there was no breach of duty at the time of the accident even if there had been one at the time of installation. A reasonable person in the respondent's position would not necessarily have considered that because the rangehood had not fallen during the three year period it would not do so thereafter, particularly if handled, as it might be in the course of the general use of the stove top and during cleaning.

Orders

For the reasons I have given, the respondent did not breach the duty of care that she owed to the appellant. Accordingly the appellant's challenge to the primary judgment fails and the appeal should be dismissed with costs.
MEAGHER JA: I agree for the reasons given by Macfarlan JA that this appeal should be dismissed with costs. I also agree with the additional observations made by Basten JA in support of that outcome.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 June 2015

Residential Tenancies Act 1987(NSW)

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