//
[2022] WASCA 47
General information, not legal advice.
Court of Appeal (WA)
2022-05-04
Murphy JA
Original judgment source is linked above.
1 This is an appeal against orders of Staude DCJ dismissing an action by the appellant (Mr Greenslade) against the respondent (Mrs Hiew) in relation to a claim in negligence. The learned primary judge published reasons on 1 September 2020.[1]
2 In the primary proceedings, Mr Greenslade, a tenant of residential property owned by Mrs Hiew, alleged that Mrs Hiew was negligent in relation to injuries he received when the ceiling in the family room of the leased premises collapsed.
3 In this appeal, Mr Greenslade alleges that the judge failed to give any or any adequate reasons for material aspects of his decision. There are no grounds alleging errors of fact. For the reasons which follow, the judge's reasons were adequate, comfortably meeting the legal requirements for judicial reasons, and the appeal should be dismissed.
Mr Greenslade's claim Mr Greenslade's case summarised
4 The judge summarised Mr Greenslade's claim as being to the following effect:[2]
1. In essence, Mr Greenslade's case was that Mrs Hiew knew or ought to have known that the family room ceiling was defective and failed to have it properly repaired.
2. Prior to the collapse, the ceiling was sagging, to the knowledge of Mrs Hiew.
3. Mrs Hiew permitted her husband to fix the sagging ceiling when he was not qualified to do so and did not subsequently assess the repairs, with the result that the ceiling was left at risk of collapse.
4. More generally, Mrs Hiew failed to implement and enforce a system of inspection, maintenance and repair of the ceiling in the family room and had she done so, the defects in the ceiling would have been discovered and repaired, thereby obviating the risk of collapse.
5 As to the last‑mentioned matter, the judge said:[3]
Counsel for Mr Greenslade did not contend that there were signs observable by Mrs Hiew that the ceiling was defective, rather, that there were signs that warranted an expert inspection of the ceiling. Furthermore, as counsel put it:
'[I]f you are a landlord and you're renting premises out for profit over a 20-year period and you don't bother ... having proper inspections done, you assume that liability risk in my respectful submission for that which could have been apprehended or minimised by engaging a competent person on a regular basis.'
It is not pleaded that the defendant was negligent by failing to inspect, maintain and repair the roof, but it was argued by Mr Greenslade that if an expert inspection of the ceiling had been done, faults would have been detected in the roof that, if remedied, would have prevented water getting into the roof space and damaging the ceiling. (emphasis added)
6 Mr Greenslade's statement of claim pleaded, relevantly:[4]
6 The accident was caused by the negligence of the Defendant.
PARTICULARS OF NEGLIGENCE OF THE DEFENDANT
a) Failing to ensure that the ceiling in the family room of the premises was properly affixed to the premises.
b) Failing to repair the ceiling in the family room of the premises such that it would not collapse onto the Plaintiff.
c) Failing to implement and enforce a system of inspection, maintenance and repair of the ceiling in the family room at the premises.
d) Allowing the Plaintiff to enter the premises when the Defendant knew or ought to have known that it was unsafe to do so.
6.1 On or about 12th January 2015, the Defendant and her husband attended the premises and spoke with the plaintiff.
6.2 The defendant's husband volunteered to the plaintiff that he had previously noticed a sag in the ceiling and had attempted to fix the same by pushing it up and plastering the nail holes.
6.3 Immediately upon hearing this, the defendant told her husband to 'be quiet'.
6.4 The defendant's conduct as pleaded above constituted an informal admission or admissions to the effect that:
(a) she actually or constructively knew (prior to the material date) that there was a sag in the ceiling prior to the material date;
(b) she permitted her husband to repair the sag;
(c) she did not take any subsequent steps to assess or repair the sag professionally; and/or
(d) she knew or ought to have known that her husband, not being a professional ceiling fixer, was not qualified to repair the sag.
7 The premises were built around 1994. Mrs Hiew bought the premises as an investment property in 1995. She carried out some initial improvements and painting. Between 1995 and 1999, Mrs Hiew let the premises to her sister‑in‑law.[5]
8 Commencing in 1999, the premises were let to a series of tenants. A property condition report dated 19 October 1999 noted some minor non‑structural cleaning and maintenance issues, but all the ceilings were 'ticked' as being undamaged.[6]
9 Mr Harris was a tenant in 2002. Mrs Hiew permitted him to paint the interior (it appears) of the house.[7]
10 Ms Westwood was a tenant in the period July 2004 to October 2011. A property condition report prepared for the purposes of the lease to Ms Westwood in July 2004 (2004 Property Report) provided no adverse comments with respect to the ceilings other than in the third bedroom, the laundry and the meals area.[8]
11 During the period of her tenancy, Ms Westwood had no concerns about any aspect of the ceiling.[9]
12 In October 2005, Mrs Hiew was advised in a quarterly inspection report of the premises that the bottoms of the kitchen cupboards and ensuite vanity were worn, and that this indicated the premises were ageing.[10]
13 A quarterly inspection report dated April 2006 noted that the exterior paintwork was showing signs of wear. Mrs Hiew did not get the exterior painted then or at any time prior to the lease to Mr Greenslade.[11]
14 Mr Greenslade's tenancy commenced pursuant to a tenancy agreement entered into on 22 June 2013, some 18 months before the collapse.[12] Mrs Hiew did not do a thorough inspection of the house prior to letting it to Mr Greenslade, but she did look through it from room to room. She saw no sagging of the ceiling and she did not have the roof space inspected.[13]
15 There were extreme wet weather events in October and December 2014, associated with hail which caused ingress of water into the roof space.[14]
16 The ceiling of the family room collapsed suddenly and without warning on 11 January 2015.[15]
Mr Greenslade's evidence as to observable defects
1. That there was a crack in the ceiling of the bathroom, being the ensuite to bedroom 1, which his daughter Hayley had pointed out to him after he had moved into the property, and the crack was still there on the day the ceiling collapsed, and he took a photograph of it.[16]
2. When he first inspected the premises in company with his daughter, Hayley, he noticed six holes in the ceiling between the family room and the kitchen that had been plugged with silicon and painted over.[17]
18 Mr Greenslade called Mr Barry Jones as an expert. He had 45 years experience in the building industry. He had a graduate diploma in architecture from London and a post‑graduate diploma in property at Curtin in 1995. His principal area of practice was 'building defects diagnostic and building design, construction and contract advice'.[18]
19 For the purposes of his report dated 30 March 2015, Mr Jones had inspected the underside of the ceilings throughout the house. The inspection indicated that the ceilings were 'visually sound', other than in (1) the activity room and lounge room, where some nail heads had slightly recessed into the ceiling sheet and flushed joints were noticeable, (2) the laundry, where a linear crack had developed between abutting sheets, and (3) an area adjacent to the bathroom shower recess wall corner, where a short crack had developed.[19]
20 Mr Jones' evidence included evidence to the effect that:
2. There was evidence suggesting that a handyman, rather than an accredited tradesman, had repaired the ceiling.[22]
3. An inspection of the roof showed some deflection - sagging - over the kitchen area due an underpurlin strap that required re‑tensioning. The lack of tension had caused some deflection of the roofline.[23]
21 On the question of the sagging, Mr Jones accepted in cross‑examination that there may have been some sagging of the ceiling after the initial construction of the house, which was later repaired by strapping.[24] He thought nevertheless that 'the ceiling would still appear to be sagging to most people'.[25] He said that:[26]
For the ceiling to come down as it says, it seems to indicate to me that a lot of the sheets had pulled through the nails, and in my view that would have been noticeable on a regular inspection, but that I cannot say.
22 On the other hand, Mr Jones also said:[27]
I'm surprised, sometimes, that I go into houses to inspect for someone that's purchasing it and I have noted the ceiling as defective, flat, and sort of a sail-like pattern, but the owners - present owners have never noticed it.
23 Mr Jones also gave evidence that there was cracked, defective and missing mortar around the roof tile caps, in particular on the hip over the family room. He said cracking was a sign of a deflection in the roof.[28]
24 Mr Jones, in his report, considered that there were two alternative possibilities for the cause of the collapse of the ceiling. One possibility was that glue applied to the underside of the ceiling joists may have 'skinned' during hot weather and not fully adhered to ceiling sheets, causing the sheets to progressively reduce their structural integrity and adhesion. The other was that rainwater entered the roof space in the capping over the family room, causing ceiling sheets and fibreglass straps to become moist and progressively reduce their structural integrity and adhesion.[29]
25 In respect of the latter alternative, the judge's observations included:[30]
[65] When asked in evidence‑in‑chief about his opinion that the ceiling collapse was caused by the ingress of water, Mr Jones said it was difficult to say over what period of time damage to the ceiling would occur. He said it would depend on how much water got in when it rained. One deluge could cause a ceiling to collapse, but if water entered slowly, it could take many years. He said that the fibreglass straps supporting the ceiling would lose their adhesion to the sheets until gradually the sheets became too heavy and dropped.
...
[72] He accepted that a ceiling could fail catastrophically from water ponding in the lower part of the sagging ceiling. In re‑examination, he said a Gyprock ceiling was designed to remain sound even after a rainstorm and that it would take some years to show any form of defect. However, he could not be definitive about time. He said:
'[G]enerally ... ceilings very rarely just simply collapse. They - it normally shows that they're defective for some time. But quite how long, it's just dependant [sic] on how much water is getting into the roof and how long it's staying there.' (emphasis added)
26 Mrs Hiew called Mr Philip Faigen as an expert. Mr Faigen graduated in architecture from the University of Western Australia in 1972, was registered as an architect in 1974, as a builder in 1978 and as an arbitrator in 1990. He became an accredited mediator and adjudicator thereafter with respect to building disputes and lectured at university.[31]
1. Ceiling defects generally occur during the first year after construction and, in this case, it was more likely that the original owner of the property did remedial work on the ceiling.[32]
2. It was unlikely that an experienced ceiling fixer would have used masonry anchors (green plugs) to hold the cornices of the ceiling. The green plugs were likely installed by an unskilled layperson to prevent failure of the cornice. Following this, the ceiling was repaired with proper maintenance work carried out by experienced tradespeople.[33]
3. In his view, the state of the gutters, the cracked mortar around a capping tile, and the deflection of the roof were irrelevant to the cause of water ingress. Rather, it was plausible that when the 'valleys became congested with hail, water overflowed into the roof space'. The roof tiling remained watertight.[34]
4. There would not have been visible defects in the ceiling in the family room prior to its collapse.[35]
5. The sagging had probably been about 10 mm and was probably in that position for around 20 years.[36]
6. The original ceilings of the house that he inspected were sound.[37]
7. The ceiling had collapsed due to water ingress during the unprecedented weather conditions in late 2014.[38]
1. Mr Greenslade's evidence regarding communications with Mr and Mrs Hiew concerning the ceiling was unreliable and dishonest.[39]
3. Mr Greenslade's daughter, Hayley Greenslade, gave evidence that she attended the premises with her father, prior to the lease. She said that they did a quick rough inspection, but gave no evidence of any observations she made at the time.[42]
4. Mr Greenslade saw nothing about the ceiling in the 18 months preceding the collapse that gave him cause to refer the state of the ceiling to Mrs Hiew.[43]
5. Mrs Hiew observed the state of the premises when she was showing the premises to prospective tenants between tenancies.[44]
6. At no time prior to the collapse was there any sign that would have indicated to Mrs Hiew that the ceiling was damaged or defective, including no observable water damage.[45]
7. A deflection (sagging) of 10 mm across the ceiling would not have been noticeable.[46]
8. Contrary to Mr Jones' evidence, the ceiling sheets were not noticeably sagging and pulling the cornices off the walls.[47]
9. The collapse was not presaged by any structural sign of a loss of integrity in the ceiling.[48]
10. An inspection prior to the letting to Mr Greenslade would not have revealed any change or defect that would have prompted repair of the ceiling.[49]
11. The original ceilings in the house inspected by Mr Faigen were sound.[50]
12. The linear crack in the laundry was not a structural defect, it did not signify that the ceilings in the premises were generally defective, and there was no expert evidence to the effect that the laundry ceiling was unsound.[51]
13. There was no cracking of the bathroom ceiling, and this was another reason for rejecting Mr Greenslade's evidence that he saw such a crack when he inspected the property.[52]
14. The repairs that were shown to have been done had been carried out in the first year following construction, prior to purchase by Mrs Hiew.[53]
15. Mrs Hiew did not act unreasonably in the maintenance of the premises generally.[54]
16. There was no evidence that it was common or customary for ceilings to be inspected by suitably qualified persons prior to the commencement of a residential tenancy.[55]
[111] The extent of the duty of care owed by Mrs Hiew to Mr Greenslade depends on all the circumstances of the case.
[112] Counsel for Mr Greenslade submitted that Mrs Hiew had notice of defects in the ceiling. I have found that she did not. Counsel also submitted that Mrs Hiew was subject to a legislative requirement to make a property condition report at the commencement of the tenancy. While that is so, I have found that a property condition report made at that time would not have revealed any defects that warranted an expert inspection. I am not satisfied that there are any special circumstances that would have created, in this case, an affirmative duty to inspect the ceiling at the inception of the tenancy, or any time prior to the ceiling collapse, noting in particular that the premises were just over 20 years old at the time of the incident.
[113] In summary, the ceiling collapsed without having presaged any observable sign of damage or defect. It collapsed due to water damage likely to have been initiated, or exacerbated, by weather events in October and December 2014.
[114] There is no evidence that had the ceiling been inspected at the commencement of the tenancy in June 2013, any defect or damage would have been detected. Nothing was brought to Mrs Hiew's attention during the course of the tenancy that would have placed her under a duty to inspect the ceiling. No repairs to the ceiling were negligently carried out by Mr Hiew or anyone else.
[115] No breach of duty has been established on either of the bases advanced by Mr Greenslade. Accordingly, the claim must be dismissed.
31 There were originally four grounds of appeal in the appellant's case, being grounds 1(a), (b), (c) and ground 2. At the hearing of the appeal, counsel for the appellant said that grounds 1(b) and 2 were not pressed and could be treated as being struck out.[57] The remaining grounds of appeal, being grounds 1(a) and (c), are to the following effect.
32 Ground 1(a) alleges that the judge erred in law in failing to provide any or any adequate reasons for concluding (at primary decision [49], [93] and [112]) that Mrs Hiew had (in the circumstances of the case) no notice of 'possible defects' at all, such as to require her to have the 'ceiling and roof' (professionally) inspected even once for over a period of 20 years.
33 Ground 1(c) alleges that the judge erred in law in failing to provide any or any adequate reasons for resolving the material conflicts of expert opinion in the significant respects identified at primary decision [83] (ie, whether cracked roof capping and roof deflection were a cause of water ingress) and at primary decision [88].
34 Counsel for the appellant accepted that unless ground 1(a) succeeded, ground 1(c) would not arise.[58]
35 Counsel for the appellant made it clear that the appellant did not challenge any findings of fact by the primary judge. The only challenge was to the adequacy of reasons.[59]
36 Mr Greenslade's written submissions did not address the grounds separately. After referring to aspects of the evidence (albeit that there are no findings of primary fact challenged), the appellant's written submissions focused on the references to the condition of the ceilings in the July 2004 Property Report, and also to a reference in that report to 'old water damage' on the wall of bedroom two.[60] The submissions appeared to refer to these matters as 'documented evidence of cracking and staining'.[61] In oral submissions, counsel for Mr Greenslade also emphasised the significance of the photograph of a crack in the ceiling which Mr Greenslade said had been pointed out to him by his daughter after he had moved into the property (linear crack photograph).[62]
37 Because of the discursive nature of the appellant's written submissions and the failure to identify which ground was the subject of which submission, it was not easy to disentangle the submissions which were intended to refer to the grounds no longer pressed (grounds 1(b) and 2) from the subsisting grounds (grounds 1(a) and 1(c)).
38 In relation to ground 1(a), in oral submissions, ultimately it appeared that the substance of the appellant's contention was that the judge's reasons at primary decision [49], [93] and [112] were inadequate, having regard to the contents of the 2004 Property Report and the evidence relating to the linear crack photograph.[63] As to the latter, in written submissions, the appellant submitted:[64]
34. In cross‑examination (T585) Mr Faigen did not resile from his written opinion that the cracking actually shown in [the linear crack photograph],[65] would require a layperson to have the ceiling inspected by a professional - he was not re‑examined on this evidence. The learned trial Judge did not deal with this evidence either at [104] or [114], or at all. Mr Faigen again at the end of his cross[‑]examination, referred to and did not resile from his documented conviction that there were 'noticeable defects' that 'were likely to have been seen by a layperson' (T627 - 628). He was also not re‑examined on this evidence. (original emphasis) (footnote inserted)
39 In oral submissions, counsel for Mr Greenslade also submitted that the judge had failed to deal with an issue that was litigated at trial - in effect whether the judge should have found a duty to inspect in December 2013, pursuant to s 27C(4) of the Residential Tenancies Act 1987 (WA) (RT Act).[66]
40 Apparently in relation to ground 1(c), the appellant submitted:[67]
29. ... [T]he important expert matters concerning whether the roof was watertight, the cracked capping, the roof deflection ... were inadequately resolved on the basis of the conclusion at [88]:
'I am confident that where the expert evidence conflicts, Mr Faigen's can be preferred. He impressed me as more knowledgeable and experienced that Mr Jones, but more importantly, his hypotheses were consistent with the ceiling exhibiting no signs of damage or defect prior to its collapse and Mrs Hiew not having done any repairs.
...
31. ... Given the forensic importance of these issues, plus the fact that approximately 10 months had elapsed since the hearing, his Honour's reasoning was inadequate in a Mt Lawley Pty Ltd v WAPC sense - see also paragraphs 26, 27 and footnotes 10 & 11 above [to the effect that Mr Jones had gone into the roof space above the ceiling and had gone onto the roof, whereas Mr Faigen had not, and Mr Faigen had also had regard to the Loss Adjuster Report].
...
33. Mr Faigen was clear that the cause of the ceiling collapse was water ingress. He said that this could have taken a year, or 5 years or 10 years, or even by someone running a plumbing line through the ceiling in 2008 (T574). In fact, he conceded in cross[‑]examination (and contrary to [83]) that the ceiling had been saturated for a lengthy period of time (T578). It was therefore very important for the learned trial Judge to determine in a reasoned way, whether the ceiling was indeed watertight prior to October 2014 and whether the documented signs of prior water staining and ceiling cracking (which the respondent overlooked, but had she noticed these, by her own admission would have engaged an expert in a hurry) were the indicators of water ingress. Mr Faigen said that if there was ceiling cracking in a sheet which is not a join, an owner would need to be proactive and arrange inspection by a suitably qualified person or building inspector, ceiling fixer or tradesman at effectively a minimal cost (T582 ‑ 585).
...
40. The failure to make a finding one way or the other whether the roof was watertight (cf [83] v [113]) meant that a large part of the evidence of Mr Jones was left in limbo. While the events in October and December 2014 no doubt 'exacerbated' the water ingress that contributed to the 2015 collapse, this too, according to Jones, was a foreseeable consequence of prior defects in the ceiling/roof and/or the lack of maintenance (eg tightening underpurlin straps) which had been in existence for years - the rejection of which evidence had not also been adequately reasoned by the learned Judge. (original emphasis) (footnotes omitted)
41 Apparently by way of general observations, the appellant in his written submissions said:[68]
41. [Mr Greenslade] does not contend that a layperson (such as the appellant or the respondent) would or should be able to ascertain a bowing roof, a loose underpurlin, missing roof caps, or even broken tiles. However, the evidence in this case raised real questions as to [Mrs Hiew's] actual/constructive notice of defects and why she should have ordered an appropriate inspection - as to which in at least one respect (the cracking), both experts agreed (see paragraph 34 above). In other respects there were inadequately reasoned conclusions and even unresolved conflicts in the expert evidence.
42. The 10-month time lapse between the trial and the delivery of reasons, made it all the more important that the transcript and evidence be carefully scrutinised and careful reasons thereafter provided. Had that process occurred, errors such as placing weight on inadmissible evidence (see footnote 11 above),[69] as well as the other errors submitted above, and the following further errors in the conclusions at [114], would have been less likely to occur - contrary to [114]:
(a) the case did not solely rely upon [Mrs Hiew's] obligations merely at the commencement of the tenancy in June 2013. [Mrs Hiew] had a continuing duty to inspect, and certainly a statutory duty [under s 27C of the Residential Tenancies Act 1987 (WA)] to provide inspection reports at the time of commencement, and at each renewal of [Mr Greenslade's] tenancy from after December 2013 onwards ... [but on the other hand, if [Mr Greenslade] was a tenant holding over after December 2013, then the effect of the continuing negligent failure to inspect from June 2013 onwards, carried through until the January 2015 eventual collapse];
(b) there was clear and cogent evidence from Mr Jones that had the ceiling been professionally inspected, defects or damage would have been remediable prior to its collapse;
(c) [Mrs Hiew's] clear evidence that she would have engaged an expert had she paid attention to the documentary evidence was not the subject of re‑examination. If [Mr Greenslade] (as tenant) should have drawn anything to the landlord's attention, at best that apportionment may have gone to the pleaded 'defence' of contributory negligence.
43. The resolution of the matters as raised by the grounds of appeal does not require an assessment of any witness' credibility. For example, the incontrovertible facts shown by documentary evidence, [Mrs Hiew's] own evidence about what she would have done had she paid attention to the defects/abnormalities, the existence of unresolved expert evidence and/or inadequately reasoned conclusions, individually or collectively satisfy the test of materiality of inadequate reasons. (original emphasis) (footnote inserted)
42 In Chief Executive Officer, Department for Child Protection and Family Support v IGR, this court observed:[70]
Principles relevant to an evaluation of the adequacy of reasons include the following:
(1) Reasons for decision need not be lengthy or elaborate.
(2) Reasons should disclose the intellectual process that led to the decision in sufficient detail and with sufficient certainty to enable the litigant to know why they were unsuccessful and to enable an appeal court to determine whether the decision involved appellable error.
(3) It is not necessary to refer to every submission advanced by a party. However, a tribunal or court must engage with the central element(s) of a losing party's case and explain why that case fails.
(4) In determining the adequacy of the reasons, the reasons must be read as a whole, and, if necessary, considered in the context of the evidence. An appellate court may take into account what can legitimately be inferred from the reasons. Whether reasons are adequate will depend upon the circumstances of the case and the matters that arose for the judge's or tribunal's consideration. (footnotes omitted)
43 In this appeal, counsel for Mr Greenslade also relied on the following observations of Meagher JA in Beale v Government Insurance Office (NSW):[71]
[W]here certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.
44 These observations seemingly informed what, when raised with counsel for Mr Greenslade, was confirmed on Mr Greenslade's behalf to be the logic of the appeal. It is best understood in the context of ground 1(a). The nub of ground 1(a) was a challenge to the judge's conclusion that the evidence did not support the conclusion that Mrs Hiew had notice of any defect in the ceiling. On the appellant's argument there was, contrary to the judge's conclusion, some evidence of defects (referring to the July 2004 Property Report and the linear crack photograph). Thus, according to counsel for Mr Greenslade, while there was no complaint that the judge's factual finding was wrong, the basis for the appeal was that the finding was, on this account, not adequately reasoned. Counsel submitted that Mr Greenslade did not have to challenge the adequacy of the factual finding in order to challenge the adequacy of the judge's reasons for that finding of fact.[72]
45 In Waterways Authority v Fitzgibbon,[73] Hayne J explained that there is often a lack of precision involved in an argument that a judge's reasons are insufficient.[74] For example, such an argument may encompass a complaint of failure to examine all material relevant to an issue, which is a complaint of error in fact finding.[75] The point was developed further by Basten JA (Hodgson & Bryson JJA agreeing) in Gordon v Ross:[76]
As is frequently the case in relation to an appeal by way of re-hearing, a complaint of lack of adequate reasons tends to obscure the real ground of complaint. Thus, if the real complaint is that no finding has been made, the question of reasons is irrelevant. There is no obligation to give reasons for a finding which has not been made. The gravamen of that complaint, whether right or wrong, must be that no finding has been made in circumstances where there was an obligation to address the issue. On the other hand, if a finding has been made, but is not supported by the evidence, there is little substantial benefit to an appellant to complain of inadequate reasons: on a re-hearing, it would generally be necessary for the Court hearing the appeal to consider the evidence and determine for itself whether it was adequate to support the finding made.
46 Accordingly, dealing with the first category identified by Basten JA, a complaint of inadequacy of reasons is immaterial where the true grievance is that the trial judge erred in law in failing to consider and determine an essential issue.[77] But, despite at times apparently accepting the difference between a ground of appeal complaining of alleged inadequate reasons and ground of appeal raising an alleged failure to consider and determine an essential issue,[78] the argument advanced by counsel for Mr Greenslade tended to conflate the two.[79]
47 As to the second category identified by Basten JA, an appellant cannot disguise what, in truth, is a challenge to the factual finding of a trial judge by saying that there is inadequate reasoning for that factual finding, and thereby avoid the hurdles faced by challenges to factual findings. As will be seen in the reasons that follow, that is in substance what the appellant in this appeal sought to do.
48 On an appeal by way of rehearing the appellant must, ordinarily, identify error in the factual finding. We say 'ordinarily' as sometimes a finding may be made without reasoning in support and it may not be possible to discern error from a review of the evidence. If the correctness of the finding is material to the outcome the absence of adequate reasons may then constitute error sufficient to require a retrial.[80]
49 This explains why inadequacy of reasons does not necessarily amount to an appellable error. Rather, as this court has previously stated, an appeal court will only intervene when the inadequacy or insufficiency in the reasons is such as to give rise to a miscarriage of justice.[81]
50 Two preliminary observations should be made about ground 1(a). First, insofar as ground 1(a) refers to the judge having concluded at primary decision [49], [93] and [112] that Mrs Hiew had no notice of 'possible' defects such as to require her to inspect the 'roof', the ground misstates the effect of the primary decision. His Honour did not mention 'possible' defects. Secondly, his Honour did not refer to notice of 'possible' defects such as to require an inspection of the 'roof'. As his Honour observed, it was not contended that Mrs Hiew was negligent by not maintaining the roof in good repair.[82]
51 At primary decision [49], [93] and [112], referred to in ground 1(a), his Honour found, in effect, that, at any time material to Mr Greenslade's occupation, there were no observable defects in the ceiling, including water damage, that would have put Mrs Hiew on notice that the ceiling was dangerous, damaged or defective, or in need of inspection or repair. On a proper construction of the primary decision, the findings of no observable defect or damage relate to the period from when the lease with Mr Greenslade was entered into on 22 June 2013, up to the date of the ceiling collapse on 11 January 2015.
52 As noted earlier, in this appeal, counsel for Mr Greenslade contended, in substance, that the above findings were made without adequate reasons, having regard to (1) the contents of the 2004 Property Report, and (2) the linear crack photograph.[83] Counsel also alleged that the judge had failed to decide an issue run at trial concerning the operation of s 27C of the RT Act in relation to Mr Greenslade's tenancy as at December 2013.
53 The 2004 Property Report contained the following references to ceilings:
1. The ceilings and cornices in the entrance, the main bedroom (bedroom 1), bedroom 4 and the activity room were in good condition.[84]
2. The ceilings in the ensuite, bedroom 2, bathroom, games room, kitchen and toilet were 'painted white' - with no reference to any defects or damage.[85]
3. In the third bedroom there were sticky and Blu Tack marks on the ceiling.[86]
4. In the meals area there was one repair mark leading to the kitchen area, six or seven 'rub' marks in the paint and one patch repair mark on the ceiling to the low level and one to the high level.[87]
5. In the laundry there was a noticeable weather mark on the ceiling.[88]
54 The first four references to ceilings in the 2004 Property Report referred to above were raised with Mrs Hiew in cross‑examination. There was no suggestion in the cross‑examination that these matters were observable defects in or damage to the ceiling which would have put Mrs Hiew on notice that it might require inspection or repair at the commencement or during the period of Mr Greenslade's occupation.[89] Nor were those matters obvious candidates for such a suggestion.
There is one weather mark on the ceiling which is noticeable.
Now, did you do anything about this when you received the [2004 Property Report] - - -?---No.
Why not?---Just a water mark, isn't it?
56 It was not put to Mrs Hiew in cross‑examination that the weather mark in the laundry referred to in the 2004 Property Report remained observable nine years later, in 2013. Nor was it suggested to her that if it had remained visible in 2013, the ceiling would have required inspection or repair. There was no evidence of it by Mr Greenslade or his daughter.
57 Neither expert considered the weather mark on the laundry ceiling in the 2004 Property Report as significant. Mr Greenslade's expert, Mr Jones, made no mention in his report or examination‑in‑chief of it. Nor did Mrs Hiew's expert, Mr Faigen, refer to it. Nor was he cross‑examined on the matter by counsel for Mr Greenslade.
58 In closing submissions, counsel for Mrs Hiew referred to it:[92]
There was a water stain in the 2004 [Property Report]. ... But no evidence has been led as to the extent of that staining and appears not to have been noticed by the Hiews, by Ms Westwood, by [Mr Greenslade], by either expert called in this matter or [Mrs Hiew] or her husband. So to the extent that it existed in 2004, it does not appear to have been marked and does not appear to have caused anyone any concern at any point prior to 2015.
59 The laundry weather mark was referred to by counsel for Mr Greenslade in his closing submissions at trial, albeit without the focus and emphasis that it received in this appeal:[93]
[T]he [inspection] that was actually done in 2004 did show problems with, as my friend pointed out, water stain, but more importantly, cornice‑cracking.
...
... If a periodic inspection of the property is done you would see the development of problems perhaps starting in 2004 where there was cornice cracking and a water stain ...
...
There is in some circumstances a common law duty to inspect the ceiling not the roof space in the property condition report, just the ceiling. Cracked cornices, nail popping, water stains, whatever, sagging, duty to inspect that, make a note of it. See a crack call an expert.
...
They are nail pops. We don't know where they are but they indicate that the ceiling is sagging.
So someone inexpertly goes and plugs them. And you have the cracking and you have the cornice problems, you might have the odd water stain.
60 In summary, there was an isolated piece of evidence which showed a weather mark on the ceiling of the laundry some nine years before the lease to Mr Greenslade, and some 10½ years before the collapse of the family room ceiling. There was no evidence that Mr Greenslade or his daughter saw the weather mark in the period January 2013 to January 2015. It was not put to Mrs Hiew that it was there and visible in 2013, and the general effect of her evidence, accepted by the judge, was that there were no visible defects, including no water marks on the ceiling,[94] when she let the premises to Mr Greenslade in June 2013. Neither of the experts considered or commented on the water mark.
61 The 2004 Property Report, under the heading 'Cupboard' in the 'Laundry' section of the report, also contained a reference to the ceilings and walls being white with 'scuffs throughout and cracking on the left‑hand‑side near the ceiling'. The reference to scuffs and cracking appears to be a reference to scuff marks and cracking in the wall near the ceiling in the laundry, in the vicinity of the cupboard.[95] There was no expert evidence to the effect that the scuff marks or the cracking in the wall near the ceiling might signify some defect in or damage to the ceiling. However, Mrs Hiew, in response to a question as to whether she would have 'got a professional person to attend' to the mark and cracking in the wall if she had seen them, said, 'I think so'.[96]
62 At this point it is convenient to set out the impugned paragraphs of the primary decision in full:[97]
[49] Mrs Hiew gave frank evidence that I accept. None of the documentary evidence that was put to her [exhibit P17 including the 2004 Property Report] pointed to any damage to the ceiling, or any observable defect that, in my view, would have put her on notice of a need to repair the ceiling or to have it inspected.
...
[93] I find that at no time prior to the ceiling collapse was there any sign that would have indicated to Mrs Hiew that the ceiling was damaged or defective. Nor was there any sign that it was in a dangerous state or in need of repair. There was no evidence of any observable water damage to the ceiling that may have signified this form of damage.
...
[112] Counsel for Mr Greenslade submitted that Mrs Hiew had notice of defects in the ceiling. I have found that she did not. Counsel also submitted that Mrs Hiew was subject to a legislative requirement to make a property condition report at the commencement of the tenancy. While that is so, I have found that a property condition report made at that time would not have revealed any defects that warranted an expert inspection. I am not satisfied that there are any special circumstances that would have created, in this case, an affirmative duty to inspect the ceiling at the inception of the tenancy, or any time prior to the ceiling collapse, noting in particular that the premises were just over 20 years old at the time of the incident.
63 These findings are to be considered in the context of the issues as formulated by the judge (without complaint in this appeal) and the duty of care advanced by counsel for Mr Greenslade, and accepted by the judge:[98]
[11] The main factual issues for determination with respect to liability are what caused the ceiling to collapse, whether the ceiling exhibited any signs of any defect or damage prior to the collapse and whether the ceiling had previously been repaired in an unsatisfactory manner.
...
[22] [I]n the absence of some special contractual arrangement, notice of defect, or a legislative requirement, ordinarily the landlord does not have an affirmative duty to inspect, although such a duty may arise in the special circumstances of the case.
64 In our view, the judge's reasons, considered in the context of the issues, the evidence and the submissions, were clear enough. Mrs Hiew had not breached any duty of care having regard to the content of the duty of care owed by her. There was no notice of any defect, a property condition report under s 27C of the RT Act would not have revealed any defects that warranted an expert inspection, and there were no special circumstances which would have created an affirmative duty to inspect. The reasons disclosed the intellectual process that led to the decision in sufficient detail and with sufficient clarity to enable Mr Greenslade to know why he was unsuccessful and to enable an appeal court to determine whether the decision involved appellable error. Further, the evidence, including the 2004 Property Report, was not overlooked. It was referred to and addressed in the context of the judge's assessment of Mrs Hiew's evidence in cross‑examination. The evidence as to the weather mark on the laundry ceiling, as summarised in [60] above and the subject of the submissions outlined in [58] ‑ [59] above, did not require specific reference in the reasons.
65 It might perhaps be that, on the evidence before the judge, it would have been open to his Honour to find that (1) the weather mark in the laundry ceiling and/or the scuff mark and crack in the wall which were apparent in 2004, remained observable in 2013, and (2) they were of such a nature and extent that it would have put a reasonable person in Mrs Hiew's position on notice that an inspection of not only the laundry ceiling, but the ceilings throughout the house, including the family room ceiling, was called for. We would add, in this regard, that insofar as counsel for Mr Greenslade submitted in this appeal, in effect, that there was only one single ceiling across the whole of the house and not individual ceilings in different rooms, there was no factual or expert evidence to that effect, and its correctness as a proposition is not patent, or at least so patent as to be capable of judicial notice.[99]
66 However, it is unnecessary to explore these questions because no error of fact is alleged in this appeal. Had an error of fact been alleged, Mr Greenslade would have been required to meet the hurdles faced by challenges of that kind, and to file a schedule of the competing evidence in a schedule under Practice Direction 7.4. It would be in this context that Mr Greenslade might have contended that Mrs Hiew's evidence referred to in [61] above may be said to have been an admission not as to the existence of the scuff and wall crack, but that if they were there at the time of Mr Greenslade's tenancy, she would have had them inspected by an expert. On the other hand, the question and answer had a degree of vagueness which might detract from the cogency of the evidence as an admission, and the topic was not canvassed in the expert evidence. In any event, as noted earlier, these matters do not arise in this appeal.
67 Further, contrary to par 34 of Mr Greenslade's written submissions,[100] Mr Faigen's evidence was not to the effect that there were noticeable defects that would be likely to have been seen by a layperson. At ts 627 ‑ 628, Mr Faigen was being cross‑examined on some notes that he had made. The notes were not tendered in evidence (ts 617 ‑ 618). The evidence at ts 627 ‑ 628 is to the effect that he was looking for evidence to see whether there were any noticeable defects likely to have been seen by a layperson. The evidence is not an admission that there were in fact noticeable defects likely to have been seen by a layperson. Indeed, plainly his evidence was to the contrary (primary decision [84]).
68 In relation to the linear crack photograph, Mr Greenslade said that it depicted a crack which was in the bathroom which had been drawn to his attention by his daughter after he had moved into the property. He said that the crack was still there on the day the ceiling collapsed.[101] His evidence was disbelieved.[102]
69 The linear crack photograph was also referred to in Hayley Greenslade's evidence. Her evidence was to the effect that she did not recall whether she took that photograph, but it was taken after the ceiling collapse.[103]
70 Mrs Hiew was cross‑examined on the linear crack photograph. She was asked whether she saw the crack depicted in the photograph in the ceiling of the bathroom. She said that she had not seen it. She said that the 'roof came - came down more after that - the second time', and 'that was the second - second time taken picture'.[104] She was also asked about whether she would have had the ceiling inspected had she seen a crack such as in the linear crack photograph. The following exchange occurred:[105]
You would ...?---If I see a crack like this on the ceiling, I would get a professional people.
You would get a professional person?---Yeah.
Because it's dangerous, isn't it?---Yeah, of course.
71 After being asked about the scuff mark and crack in the wall near the cupboard in the laundry referred to in the 2004 Property Report, there was also the following exchange in cross‑examination:[106]
Yes. And when you add that to the crack in the ceiling which we looked at earlier [the linear crack photograph], you would have been in a hurry to get a professional person to attend, correct?---Yeah. But I just - - -
You didn't see it?--- - - - don't remember seeing that.
No. But this is the [2004 Property Report] that was given to you by your managing agents for which you paid for, correct?---Yes.
But probably didn't read, yes?---Yes.
Because you were busy at work?---Yes, correct.
And your husband didn't read it either?---Yes.
Well, did he mention anything to you about this problem?---Who?
Your husband?---No.
72 The expert evidence in relation to the linear crack photograph, read as a whole, was to the effect that:
1. The linear crack photograph depicted a linear crack in the laundry rather than the bathroom, as observed by Mr Greenslade's expert, Mr Jones, and identified in his report dated 30 March 2015 (after the collapse).[107]
2. Mr Jones, who observed the crack, said, in effect, that the linear crack photograph depicted a crack between two ceiling sheets which were fixed to the joist. It was not a crack within the middle of a single sheet.[108]
3. Mrs Hiew's expert, Mr Faigen, who had not personally observed the linear crack but had seen the linear crack photograph, had understood the crack to be within a single ceiling sheet.[109] On that basis, he said that if that were a crack which existed and was observable prior to the collapse, that is the kind of crack that would indicate the need for an inspection.[110] However, he also said (consistently with Mr Jones' evidence) that the linear crack photograph could depict a crack between two sheets abutting across a ceiling.[111]
4. Moreover, Mr Faigen's evidence was also to the effect that if the crack were simply a crack between two adjoining ceiling sheets abutting the joist, the crack would have no structural significance and would not be an indication for an inspection; rather, it would be a 'cosmetic issue'. Counsel for Mr Greenslade did not suggest otherwise in the cross‑examination of Mr Faigen.[112]
73 His Honour said, on the topic of the linear crack photograph:[113]
[96] The fact that there was a linear crack in the laundry, which on the evidence was not indicative of a structural defect, does not signify that the ceilings in the premises were generally defective. There was no expert evidence to the effect that the laundry ceiling was unsound.
...
[104] Mrs Hiew in her evidence said that if she had seen a crack in the bathroom ceiling or been informed [of] one she would have had the ceiling inspected. I accept her evidence in that regard. She did not see such a crack; nor was she informed of one by Mr Greenslade. At no time did she have occasion to inspect the ceiling for that reason. Of course, the premise of the question put to Mrs Hiew was mistaken. Mr Jones identified a linear ceiling crack in the laundry, not the bathroom. In the circumstances, I would interpret Mrs Hiew's evidence to mean that if she had seen such a crack anywhere she would have taken the same action. There was no cracking of the bathroom ceiling. I accept Mr Jones' evidence in this regard. This is another reason for rejecting Mr Greenslade's evidence that he saw such a crack when he inspected the property.
74 The effect of these findings, read in the context of the primary decision as a whole, is that (1) the linear crack which was visible in the laundry ceiling after the collapse had not been observed and was not observable before the collapse, (2) had Mrs Hiew observed or been informed of such a crack, she would have had the ceiling inspected, and (3) in any event, the linear crack did not signify any structural defect in the ceilings in the premises. As to the third matter, the effect of the finding is that had Mrs Hiew called out someone to inspect such a pre‑existing linear crack, the advice she would have received was that it was not a structural defect. Contrary to the proposition put to (and accepted by) Mrs Hiew in cross‑examination (see [70] above), the linear crack in the laundry was not 'dangerous'.
75 In our view, there is nothing about the linear crack photograph or the evidence of its significance which would suggest that the judge's reasons were inadequate in relation to the matters in primary decision [49], [93] and [112]. The judge made and explained his findings by reference to the evidence, including by reference to the linear crack photograph evidence. There is no challenge to the findings of fact. In particular, there is no ground alleging that the judge erred in finding, in effect, that the linear crack was not observable before the ceiling collapse, when he ought to have found that it was. Whilst counsel for Mr Greenslade contended, with reference to Strong v Woolworths Ltd,[114] that it should be inferred that the linear crack pre‑dated the collapse,[115] and that the effect of Mr Jones' evidence was that the linear crack had been there for some considerable time,[116] those questions would only arise had there been a challenge to the findings of fact. These matters would need to be evaluated in the context of the evidence as a whole, including the judge's findings as to the reliability of Mrs Hiew's evidence and the unreliability of Mr Greenslade's evidence, and the relevant principles of appellate restraint in that regard.[117] They do not arise on ground 1(a) of this appeal.
76 Also, if it were to be alleged that the linear crack photograph did not depict a crack between two adjoining sheets abutting and fixed to the joist but, rather, a crack within one sheet signifying a structural defect, that would require an attack on the findings of fact, summarised in point 12 in [29] above, in [96] of the primary decision. Again, there was no ground of appeal to that effect, and, moreover, it is difficult to see how, in light of the expert evidence, such a complaint could have been sustained even if it were made.
77 As noted earlier, the judge found, in effect, that Mr Greenslade was in possession of the premises in the period June 2013 up to the date of the ceiling collapse in January 2015, pursuant to a lease agreement entered into on 22 June 2013. Clause 1 of the lease agreement provided:[118]
Rent period commenced on 22.6.13 for the period of six months and it can be extended thereafter.
78 In oral submissions, counsel for Mr Greenslade said that the judge had failed to address an issue litigated at trial, which was whether Mrs Hiew should have carried out an inspection of the premises at the end of the six‑month period referred to in cl 1 of the lease, around 31 December 2013.[119] Associated with this was a submission that the judge had confined his consideration to what an inspection at the time when Mr Greenslade's tenancy was entered into would have revealed, rather than at any time subsequent to the commencement of the tenancy.[120]
79 As to the latter point, when the primary decision is read as a whole, it is clear that the judge's findings as to no observable defects applied throughout the whole of the period of Mr Greenslade's occupation, up to the point of collapse of the ceiling.[121]
80 As to the former contention, the complaint appeared to be that the judge should have found a duty to inspect upon the expiration of the six‑month term of Mr Greenslade's lease, pursuant to s 27C(4) of the RT Act.[122] Counsel said that this was on the basis that, as at December 2013, there was a holding over, an extension of the lease, or a renewal of the lease (albeit without identifying which).[123]
81 Although not adverted to by counsel for the appellant, s 27C of the RT Act commenced operation on 1 July 2013, after the execution of the Lease Agreement on 22 June 2013.[124] Counsel did not refer to any equivalent legislative requirement prior to 1 July 2013, and there appears to have been no statutory equivalent in the RT Act to s 27C prior to 1 July 2013. Prior to 1 July 2013, s 88(1) and s 88(2) of the RT Act conferred a power to make regulations, including with respect to an 'inspection sheet' as to the state of the premises, but we were not referred to any regulations that were made in that regard, and there appears not to have been any.[125]
82 Section 27C of the RT Act, when it came into effect on 1 July 2013, provided:
(1) A lessor must, within 7 days after a tenant has entered into occupation of residential premises under a residential tenancy agreement -
(a) prepare a report describing the condition of the premises; and
(b) provide 2 copies of the report to the tenant.
(2) A tenant given copies of a report under subsection (1)(b) who disagrees with any information in the report must, within 7 days of receiving the copies -
(a) mark a copy in a manner that shows the information with which the tenant disagrees; and
(b) give the copy back to the lessor.
(3) If the tenant does not give a copy of the report back to the lessor under subsection (2), the tenant is to be taken to accept the report as a true and accurate description of the condition of the residential premises.
(4) A lessor must, as soon as practicable, and in any event within 14 days, after the termination of a tenancy -
(a) conduct an inspection of the residential premises; and
(b) prepare a final report describing the condition of the premises; and
(c) provide a copy of the report to the tenant.
Penalty for this subsection: a fine of $5,000. (emphasis added)
83 The RT Act was not pleaded and not mentioned in the plaintiff's opening written or oral submissions at trial.[126] In cross‑examination, in the context of the tenancy of an earlier tenant, Mrs Van Cleef, counsel for Mr Greenslade put to Mrs Hiew, and she accepted, that she knew she was under a statutory obligation to provide a property inspection report at the beginning and end of a tenancy. Insofar as counsel suggested to Mrs Hiew that s 27C of the RT Act applied to Mrs Van Cleef's tenancy in 2000, he was incorrect. Section 27C commenced operation on 1 July 2013. More importantly, this aspect of the cross‑examination did not elevate the reference to the RT Act to the point where it could fairly be said that there was an issue in the case, for resolution by the judge, as to whether Mrs Hiew was negligent in not conducting an inspection of the premises in December 2013.[127]
84 In closing submissions, counsel for Mr Greenslade referred to the RT Act, as follows:[128]
The other thing is that under the heading 'Ordinarily No Affirmative Duty to Inspect', that is in the absence of a legislative requirement and in this case [s] 27C of the [RT Act] imposed that property condition report requirement.
...
[HIS HONOUR]: Well, it's the condition of the premises, and I'm not sure that I know what the legislative purpose is but I can have an educated guess that it's to enable - or to reduce the incident of disputes as to the return of bonds and suchlike at the conclusion of a tenancy. So that if you mandate the property inspection at the beginning and at the end then you enable the parties to focus on the condition of the property at those times - - -
[COUNSEL FOR THE APPELLANT]: Accept that.
[HIS HONOUR]: - - - with a view to reducing the incidence of potential disputes as to what the condition of the property was at the beginning and end of the tenancy.
[COUNSEL FOR THE APPELLANT]: Yes.
...
[COUNSEL FOR THE APPELLANT]: ... There is a legislative requirement in this case. ...
...
[HIS HONOUR]: When do you say the expert inspection should have occurred?
[COUNSEL FOR THE APPELLANT]: Well, over a 20-year period at the beginning and end of every tenancy, your Honour. That's the legislative requirement.
...
[COUNSEL FOR THE APPELLANT]: So the chain of conversation [sic - causation] goes like this. The landlord has the duty to inspect, it's a statutory duty.
[HIS HONOUR]: Now, where does statutory duty arise? I'm lost there.
[COUNSEL FOR THE APPELLANT]: It's a common law duty informed by the statute. The property condition report, your Honour.
[HIS HONOUR]: Yes, I've got - I thought we had agreed that the land [sic - landlord] doesn't have an affirmative duty to inspect as a matter of law.
[COUNSEL FOR THE APPELLANT]: Absent legislative - - -
[HIS HONOUR]: No, at common law.
[COUNSEL FOR THE APPELLANT]: At common law.
[HIS HONOUR]: There's no - - -
[COUNSEL FOR THE APPELLANT]: Absent - - -
[HIS HONOUR]: - - - affirmative duty to inspect. Where is the legislative requirement in this case?
[COUNSEL FOR THE APPELLANT]: The [RT Act], section 27C.
[HIS HONOUR]: What, the making of a property inspection report?
[COUNSEL FOR THE APPELLANT]: Correct. How can you do ‑ ‑ ‑
[HIS HONOUR]: But that's not intended to deal with issues of safety or - - -
[COUNSEL FOR THE APPELLANT]: Well, in my respectful submission, it had a dual purpose which even the defendant accepted there are two reasons why she would need to do that for - that's the state of mind.
[HIS HONOUR]: Well, I'm not concerned of what the defendant thinks that requirements there from, I'm concerned to know why it's there as a matter of law and whether it gives rise to a duty that amounts to - - -
[COUNSEL FOR THE APPELLANT]: Yes.
[HIS HONOUR]: - - - the duty of care to - - -
[COUNSEL FOR THE APPELLANT]: Yes.
[HIS HONOUR]: - - - ascertain any risks - - -
[COUNSEL FOR THE APPELLANT]: Yes. Well - - -
[HIS HONOUR]: - - - in the property and it doesn't seem to me that that requirement to do a property inspection report can be elevated to a legislative requirement to inspect the building for structural integrity.
[COUNSEL FOR THE APPELLANT]: No, that's not my submission. Perhaps I could break it down like this. There is in some circumstances a common law duty to inspect the ceiling not the roof space in the property condition report, just the ceiling. Cracked cornices, nail popping, water stains, whatever, sagging, duty to inspect that, make a note of it. See a crack call an expert.
Now, you don't get to that point of calling an expert if you don't inspect and do this periodic property condition report and you cannot say as a landlord - the common law should not permit you to say as a landlord, 'Well, I didn't know about it because I didn't go in to look even though the statute says I need to do that at least at the start and end of every tenancy.'
So that is the link in the article that the author makes in relation to that case where you have an incursion of a collateral statutory obligation that informs the common law duty to inspect the ceiling. We're not pleading this as a breach of statutory duty case but, you know, the common law looks at statutory obligations in deciding whether or not it is reasonable to take certain steps, in this case, steps which were completely disregarded by this landlord on her evidence, basic steps.
What follows is that by her own admission, if she had done that, as she was required to do by the Act she would have seen the crack and if she had seen the crack, she says she would call an expert. Why? Because it's dangerous. Why dangerous? Because the ceiling could collapse and hurt someone, by her own candid admission.
All right. The next step is call an expert. Who? Call an expert who would have done the kind of inspection as at 2015, gone into the roof - gone into - and your Honour heard Jones. He said, 'The minute I got there, I knew there was a problem because of the bowing. I went into the roof space. I found these problems under purlin bowing not tightened up.' (emphasis added)
85 The main thrust of the submissions was to suggest that had Mrs Hiew conducted a property inspection report in accordance with s 27C of the RT Act, she would have seen defects which would have alerted her to the dangerous state of the ceiling and taken steps to have it inspected by an expert, and that her (alleged) failure to comply with s 27C of the RT Act could not justify the absence of expert inspection. Although reference was made to s 27C as a 'collateral statutory obligation' which would 'inform' the common law duty to inspect, the submissions did not refer to the position as at December 2013. They did not raise, or at least squarely raise, for determination by the judge, whether the absence of an inspection by Mrs Hiew of the premises in December 2013, after six months occupation by Mr Greenslade, itself constituted or evidenced negligence having regard to s 27C(4) of the RT Act.
86 There are four observations to be made about the contention referred to in [80] above. The first is that the contention does not arise on ground 1(a). The complaint in substance is not about the adequacy of the reasons, but the (alleged) failure of the judge to deal at all with an (alleged) significant issue litigated at trial, in which the (alleged) omission is to be inferred from the absence of any reasons on that topic.
87 Secondly, having regard to the matters referred to in [83] ‑ [85] above, we are not persuaded that the judge was asked to find that there was a duty to inspect in December 2013 by reason of s 27C(4) of the RT Act. The judge's express reference to 'a legislative requirement to make a property condition report at the commen[129]ent of the tenancy'129 does not reflect a failure to address an issue as to whether Mrs Hiew was negligent in failing to inspect as at December 2013. Rather, it reflects the judge's understanding, which was reasonable having regard to the conduct of the trial as a whole, that the submission as to the operation of s 27C had as its focus the end of the previous tenancy and the start of Mr Greenslade's tenancy, and not the position in December 2013 when Mr Greenslade remained a tenant.
88 Thirdly and related to the last matter, counsel for Mr Greenslade accepted in this appeal that the judge was not provided submissions on, or invited to determine, the proper construction and application of s 27C(4) of the RT Act in respect of the particular circumstances in which Mr Greenslade remained in possession after the first six months.[130]
89 Fourthly, counsel for Mr Greenslade accepted that the point he was seeking to make was not that as a 'standalone ground', the judge failed to address an issue which was litigated. Rather, it was a contention relied on 'for the purpose of and to the extent that it reveal[ed] an absence of adequate reasons'.[131] Counsel expressed his submission as follows:[132]
[The judge] said there was no ... evidence of any observable water damage during the period of the tenancy. That's what [primary decision [93]] is about. ...
Not at the commencement of the tenancy. And we say, well, how do you come to that conclusion when there was so much evidence there before you and why do you reject that evidence and why do you reject the submissions in relation to the continuing duty not just at the commencement of the tenancy but right up to when this happened.
90 The points in the submission, so expressed, were to the effect that:
1. There were observable defects as alleged in relation to ground 1(a).
2. The observable defects would have been observed by Mrs Hiew had she done a property inspection report of the kind referred to in s 27C(4) of the RT Act in December 2013.
3. Mrs Hiew could not rely on her (alleged) breach of s 27C(4) of the RT Act to justify her failure to observe what would otherwise have been observable in December 2013.
91 Accordingly, whilst as already explained the contention referred to in [80] above is not one falling within the ambit of the subsisting grounds of appeal, and its premise (that the issue was litigated at trial) has not been established, and the contention should be rejected on those bases, the contention in any event adds nothing to ground 1(a). Rather, it assumes the success of ground 1(a).
92 Further, the point goes nowhere in the absence of a challenge to the finding of fact that there were no observable defects which would have put Mrs Hiew on notice of the need to inspect or repair prior to the collapse of the ceiling.[133] On the unchallenged findings of fact, a property inspection report on 31 December 2013 would not have revealed any defects which would have alerted Mrs Hiew to a need for an expert inspection.
94 As ground 1(a) has failed, it is strictly unnecessary to deal with ground 1(c). Nevertheless, it is addressed for completeness.
95 Ground 1(c) refers to primary decision [83] and [88]. It concerns adequacy of reasons in relation to the issue of causation. It is appropriate to consider first, in more detail, the evidence on causation.
96 Mr Jones' evidence was to the effect that there was a noticeable deflection in the roof cover over the kitchen area and 'cracked, defective and missing bedding mortar around roof tile caps in particular to roof tile caps ... along the hip over the family room'. He attached a photograph (at par 2.4 of his report) showing the cracked bedding mortar along the hip over the family room.[134]
97 As noted earlier, Mr Jones posited two reasons why the ceiling collapsed, the first of which involved a theory as to the ingress of water. He said:[135]
3.2 It appears to me that rainwater has entered the roof space around defective roof tile caps over the family room and deflecting roof cover over the kitchen causing ceiling sheets and fiberglass straps to become moist and progressively reduce their structural integrity and adhesion to the top of ceiling sheets.
3.3 In the alternative, glue dabs applied to the underside of ceiling joists, as evidenced around the original ceiling elsewhere, may have skinned during hot weather and not fully adhered to ceiling sheets causing ceiling sheets to progressively sag in the middle of each sheet until the weight of the ceiling exceeded the capability of perimeter fixing nails to support the entire ceiling.
98 Mr Faigen, in response, referred to Mr Jones' evidence and included in his report the photograph of the cracked mortar on the roof hip. Mr Faigen said:[136]
The photo inserted at para 2.4(b) ... appears to be a capping tile that, despite the cracked mortar, remains serviceable and watertight.
I do note the insurance assessor has a different viewpoint to [Mr] Jones on this matter wherein the 'Insurance Assessment Report' states that he
'... saw that the roof was in good condition with no evidence of any storm[-]related damage ...' (bold original emphasis, italics emphasis added)
99 The 'Insurance Assessment Report' referred to by Mr Faigen in the above passage was the Loss Adjuster Report. It was annexed as appendix 8 to Mr Faigen's report.[137]
100 At trial, counsel for Mrs Hiew sought to tender Mr Faigen's report by excluding or redacting the Loss Adjuster Report and the references to it on the basis that it 'has not been the subject of evidence'. Counsel for Mr Greenslade submitted that Mr Faigen's report should be admitted in its entirety on the basis that it would allow the court to consider how 'in large part' Mr Faigen was reliant on the Loss Adjuster Report for his view that the roof was in good condition. Mr Faigen's report was received into evidence in its entirety.[138]
101 The cross‑examination of Mr Faigen in this connection included the following:[139]
This is the only photo you were given as to the condition of the roof?---Yes.
And you didn't go on it yourself?---I didn't go there myself but - - -
Not a criticism?---But I found where that is, from the ground.
By walking around - yes?---I walked around. That's on the hip at the back of the family room.
...
Because you didn't inspect the roof in 2019, you don't know the state of the roof or whether any - other than the photograph that - of the dowel cap(?)?---Yeah.
You know nothing about the roof so you can't agree that it's due to poor maintenance of say the roof, correct?---Well, we - now, I do know there is maintenance needed on the roof just by looking at that one black and white photo that Mr - Mr Jones put in.
Could you say that again?---Well - well, there - there is some maintenance that might be done to the roof - - -
In that area of the photograph?---Of that particular photo.
Yes?---That maintenance would only be there as a cosmetic effect to - to - to take out the - the - the grout - the roofing grout - - -
And re-bed - - -?--- - - - and replace it. But it - - -
Right?--- - - - it - it doesn't mean that that - that maintenance had any effect, one way or another on - - -
No?--- - - - on - on any water ingress.
I understand. I understand what you're saying?---Okay.
...
I understand, and the evidence, the only evidence that you looked at is on page 12, the capping. And on that basis, you extrapolate that the rest of the house must be fine, because you're not instructed otherwise?---Well, I - remember that I - I walk around the roof, walk around the floor. I looked up the valleys, took photos of the valleys, which I've shown here, and - and there's nothing in that that suggests that the roof has - needed maintenance.
In fact, on the next page, page 12 [GB 185], you rely on your instructions based on the insurance assessor's report, and you put in bold, 'The roof was in good condition', and you put in brackets, 'My emphasis'?---Yes.
Your opinion based on that, one photograph and the inspector report?---And a thorough inspection when I was in the roof and outside the roof.
You didn't say that, when you were in the roof, the brief period when you were at the cubby hole, that you inspected the roof by looking up?---Well, I - when - when an inspector goes in the roof, he's looking for certain things, but he looks around at everything else around him.
I see?---I didn't see anything glaring, holes in the roof or anything like that at all.
Why didn't you mention that in any version of your report, and all you say in the final version on page 12 [GB 185] is:
'Based on insurance assessment report (my emphasis) it was in good condition'
?---Yes.
And based on that photograph, that didn't need fixing. Why did you say that:
'I myself inspected the roof internally by positioning myself at the internal doorway and looked around and found that the roof was fine'
?---I saw no need - I saw no need to mention it because it - because the roof maintenance wasn't relevant to me at that stage. (emphasis added)
102 It should be noted that the italicised passage in the cross‑examination referred to above was not an accurate statement of what was in the relevant part of Mr Faigen's report. The relevant passage in Mr Faigen's report has been set out at [98] above, in which he 'note[d]' that the loss assessors had formed a different view from Mr Jones.
103 It is convenient next to set out [83] and [88] of the primary decision in full, together with [82], which provides context and refers to the Loss Adjuster Report:[140]
[82] Mr Faigen was also informed by [the Loss Adjuster Report] (appendix 8) that:
'We then inspected areas around the collapsed ceiling area and we noticed water damage to several small areas adjacent to the main ceiling.
There were as many as six small areas of water damage throughout the surrounding ceiling areas ...
We then inspected the roof immediately above the affected areas and saw that the roof was in good condition with no evidence of any storm related damage.
There was however two valley gutters located above the affected ceiling area and following further questions to the tenants we have concluded that during recent storms where there was considerable hail we believe that the valley gutters have filled with hail and water has back flowed into the buildings.
Due to the blow-in type [insulation in the ceiling space under the roof] ... prevented water from immediately running through the ceiling sheets but it has absorbed the moisture until it becomes quite heavy.
This in turn has caused adhesive to slowly release and as the ceiling sheets became detached they also became heavier until such time as they have collapsed ...'
[83] Although the author of the report was not called, no objection was made to its tender as part of Mr Faigen's report. Mr Faigen located the two valley gutters referred to in the assessor's report. On his inspection, the roof was sound. He did not agree with Mr Jones' assessment in that regard. In Mr Faigen's view, the state of the gutters, the cracked mortar around a capping tile, and the deflection of the roof were irrelevant to the cause of water ingress. Rather, he considered that while the roof tiling remained watertight, it was 'quite plausible that when the valleys became congested with hail, water overflowed into the roof space'. In this regard, ... it is not contended as a particular of negligence that Ms Hiew was negligent by not maintaining the roof in good repair, or allowing the gutters to fill with leaves. Counsel made it clear that the evidence was relevant only to show that the premises were not well maintained.
...
[88] I am confident that where the expert evidence conflicts, Mr Faigen's can be preferred. He impressed me as more knowledgeable and experienced than Mr Jones, but more importantly, his hypotheses were consistent with the ceiling exhibiting no signs of damage or defect prior to its collapse and Mrs Hiew not having done any repairs. (emphasis added)
104 In this context, the judge found that the ceiling collapsed due to water damage.[141] His Honour found that the extreme weather events of October 2014 and December 2014 caused ingress of water which precipitated the collapse.[142] Insofar as the judge found that the water damage to the ceiling was likely to have been 'initiated' or 'exacerbated' by those events,[143] his Honour implicitly accepted (in the case of exacerbation) that there may have been some water ingress somehow prior to October 2014. His Honour did not determine the cause of any possible water ingress prior to October 2014. However, his Honour effectively accepted Mr Faigen's evidence to the effect that the roof was 'watertight' - not in any absolute sense, in that his Honour plainly accepted that water had entered through the roof in late 2014 - but 'watertight' in the sense that the roof deflection and cracked mortar in the roof capping identified by Mr Jones were not sources of water ingress in the hail storms of October and December 2014.[144] His Honour also thereby implicitly accepted that those matters were not the cause of any, or any material, water ingress in a period preceding those storms.[145] Moreover, his Honour found, in effect, that both before, and even after, the hail storms of October and December 2014, there was no evidence of any observable defect or damage including water damage.[146]
105 The dispute between the experts was not whether there was cracking in the mortar of the capping in the two valleys over the family room, nor whether there was a deflection in the roof. Nor was there any doubt that water had entered the roof. The dispute was as to the process or mechanism by which the water entered the roof. The dispute, at this point in the evidence, was how and why.
106 The reasons for preferring Mr Faigen's evidence were, in effect, as follows. First, his evidence conformed better with the objective facts as found by the judge. On the other hand, Mr Jones' evidence that the ceiling would have been noticeably sagging and pulling the cornice off and away from the wall, was inconsistent with the facts as found. Secondly, the judge also preferred the evidence of Mr Faigen on the topics of the popping of nails, the extent of the ceiling sagging and the previous use of wadding - all of which is not the subject of objection or criticism in this appeal.[147] Thirdly, Mr Faigen's evidence was also to the effect that the cause of the ceiling collapse was due to water ingress during the unprecedented weather conditions in late 2014.[148] On the other hand, as the judge observed, Mr Jones said that it was difficult to say over what period of time the damage to the ceiling would have occurred by water ingress.[149] The judge evidently regarded Mr Faigen's explanation as to the timing of the water ingress which precipitated the collapse of the ceiling to be more persuasive and consistent with the objective facts. Fourthly, the judge was also impressed with Mr Faigen's grasp of his subject.[150]
107 As to the third of those matters, and contrary to par 33 of Mr Greenslade's written submissions,[151] the effect of Mr Faigen's evidence was that the water ingress which was causative of the ceiling collapse would likely have occurred in the few months prior to the ceiling collapse. At ts 578, Mr Faigen's evidence was to the following effect:
Do you know when the water ingress which you postulate caused the catastrophic failure in January 2015, do you know when that got in?---No, I don't know.
Do you have any view as to how - when that might have got in?---Some time within the previous couple of months.
Could it have been within six months?---Could've been, yes.
And then it would have shown this sag that you describe in these diagrams?---Not necessarily sag. This was - this put in an instantaneous event - I don't think, unless - sorry. I think the process of some screws - the fixing around the screws gradually failing and in the end the ceiling says I've had enough, I can't hang on anymore. Bang. And that - and the fact that the kitchen part happened afterwards, a short while afterwards, that seems to be consistent with my theory, if you like, that much of that area ... of the family room, kitchen had saturated and it just took a lengthy period of time compared to instantaneous where the water comes straight through the ceiling. (emphasis added)
108 The reasons referred to in [106] above were comfortably adequate to disclose the basis upon which the judge preferred Mr Faigen's evidence in relation to the question of whether the cracked roof capping mortar and the deflection of the roof caused the water ingress. In our view, there is no basis for concluding that the judge's reasons in connection with causation were inadequate.
109 Two final points should be made. First, there is no ground alleging that the judge erred in finding the fact of causation in the absence of any admissible evidence. Although Mr Greenslade, in his written submissions, referred to the judge 'placing weight on inadmissible evidence',[152] a complaint about a finding of fact in the absence of evidence is an error of law.[153] A finding of fact on the basis of expert opinion which is itself based entirely on inadmissible evidence or on a combination of inadmissible and admissible material, where it is impossible to determine what conclusions are based on the expert's own observations, and what conclusions are based on hearsay,[154] is also an error of law and/or (if there be a difference in this context) a miscarriage of justice. But a complaint of a finding of fact in the absence of admissible evidence or based on inadmissible evidence, is not, in substance or effect, an allegation as to inadequacy of reasons in accordance with the principles in IGR and Beale referred to earlier.
110 Secondly, there is no ground of appeal to the effect that the judge erred in fact by preferring Mr Faigen's opinion that the capping and the deflection of the roof were not a cause of the damage to the ceiling. Had there been, there may have been an argument as to whether Mr Faigen's evidence was less cogent in relation to the question of causation than Mr Jones' evidence, given that Mr Faigen had not himself climbed into the roof space above the ceiling or gone on top of the roof. On the other hand, his evidence would need to be considered in the context of the judge's assessment of the evidence as a whole, including with regard to the principles as to appellate restraint referred to in [75] above, insofar as his Honour was impressed with Mr Faigen's grasp of the subject. However, that point does not arise under ground 1(c).
112 The appeal should be dismissed. The parties should be heard on the question of the costs of the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
[1] Greenslade v Hiew [2020] WADC 120 (primary decision).
[4] Statement of claim 03/09/2019, BB 77 - 78.
[20] Primary decision [54]. See also primary decision [56] - [58] as to Mr Jones' evidence that there would have been sagging of the ceiling.
[29] Mr Jones' report, pars 3.2, 3.3; GB 13; primary decision [62], [63].
[33] Primary decision [79]; GB 179, 181.
[38] Primary decision [113]; Mr Faigen's report, par 59(v); GB 186.
[39] Primary decision [105], [272].
[45] Primary decision [48], [49], [93], [112].
[56] Primary decision [111] - [115].
[62] See [17.1] above and GB 31, 47, 171.
[64] Appellant's written submissions, par 34.
[65] Mr Faigen, in relation to photograph 6, stated that, 'There was no information as to where or when [this photograph was] taken': GB 189.
[67] Appellant's written submissions, pars 29, 31, 33, 40.
[69] In fn 11 of his submissions, Mr Greenslade contended that the Loss Adjuster Report did not go in evidence as to the truth of its contents 'but solely in order to understand Mr Faigen's assumption that the roof was in good condition in 2015 in the absence of direct evidence': appellant's written submissions, fn 11; WB 13.
[70] Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20; (2019) 54 WAR 222 [112].
[71] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 443. See also, to similar effect, Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8, 17.
[73] Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816.
[76] Gordon v Ross [2006] NSWCA 157 [81]. See also Shellharbour City Council v Rigby [2006] NSWCA 308; (2006) Aust Torts Reps 81‑864 [311], [314] ‑ [316].
[77] As to which see Tradesman Technologies Pty Ltd v Ameduri [No 2] [2013] WASCA 252 [39].
[80] Shellharbour City Council [314].
[81] Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273; [29]; SNF (Australia) Pty Ltd v Jones [2008] WASCA 121 [34]; Centex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79 [103(g)].
[83] The same photograph appears in exhibit P3.18 at GB 31 and exhibit P4 at GB 47.
[85] GB 101 - 102, 104, 106 - 107, 110.
[89] See trial 11/11/2019, ts 476, 488 - 493.
[92] Closing submissions 15/11/2019, ts 646.
[93] Closing submissions 15/11/2019, ts 659, 663, 665, 673.
[97] Primary decision [49], [93], [112].
[102] Primary decision [100]. See also [105] - [106], [212].
[107] Mr Jones' report, par 2.1; GB 8.
[108] Trial 05/11/2019, ts 186.6 - 187.3, 188.2.
[109] Mr Faigen's report, par 34, photograph 6; GB 178, 189.
[110] Trial 12/11/2019, ts 583.3 - 583.4.
[113] Primary decision [96], [104].
[114] Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182.
[116] Mr Jones' report, par 4.1; GB 13; trial 05/11/2019, ts 195 - 197.
[117] Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 [55]; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [28] ‑ [29]; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550 [43]; Child and Adolescent Health Service v Mabior [2019] WASCA 151; (2019) 55 WAR 208 [93].
[120] Appeal ts 50; appellant's written submissions, par 42(a); WB 17.
[121] Primary decision [11], [92], [93], [100], [112] - [113].
[122] Appellant's written submissions, fn 2, par 42(a); WB 6, 17.
[124] Residential Tenancies Amendment Act 2011 (WA), s 2, s 22; Western Australia, Government Gazette, No 71 (3 May 2013) 1735.
[125] On 22 July 2013, the regulations required landlords to provide tenants with certain information on entering a tenancy agreement, but this did not include a property condition report. Residential Tenancies Regulations 1989 (WA), r 14(1), sch 2.
[126] As to the plaintiff's opening submissions at trial, see trial 04/11/2019, ts 5 - 15. In the plaintiff's opening written submissions, it was submitted, relevantly:
1. Whilst acknowledging [Mrs Hiew's] intention to challenge [Mr Greenslade's] 'credibility', and also to scrutinise his past medical history, there remains nevertheless, two irrefutable facts:
(a) on 11.1.15, the ceiling fell on [Mr Greenslade's] head; and
(b) for the immediately preceding 5 years, [Mr Greenslade's] gross income was as follows: ...
2. [Mrs Hiew] could, and perhaps should, have taken steps that would have at least reduced, minimised or even eliminated the risk of the ceiling collapse. The tenancy was [Mrs Hiew's] enterprise risk, entered into purely for financial gain (and not, realistically, for any social utility).
3. This is so whether or not [Mrs Hiew] or her husband actively tried to inspect or repair the roof themselves, because had periodic roof inspections by qualified personnel been undertaken in any event, it is more likely that not that remediable or rectifiable faults would have been detected, and/or precautionary steps undertaken earlier; [Mrs Hiew], after all, had owned the property for about 20 years continuously ... - Strong v Woolworths [2012] HCA 5 at [30], [34], [44] ‑ [45]. See also The Corporation of the Synod of the Diocese of Brisbane v Greenway [2017] QCA 103 at [57] ‑ [58]. (footnotes omitted)
[128] Appeal ts 658 - 659, 661 - 662, 664 - 666, 668.
[134] Mr Jones' report, par 2.4; GB 12.
[135] Mr Jones' report, pars 3.2 - 3.3; GB 13.
[137] Mr Faigen's report, pars 54 - 57; GB 180, 198 - 200.
[139] Trial 12/11/2019, ts 592, 612 - 613, 615 - 616.
[140] Primary decision [82] - [83], [88]. See also trial 12/11/2019, ts 546 - 547.
[142] Primary decision [91], [98].
[147] Appellant's submissions, par 29; WB 13.
[148] Mr Faigen's report, par 59(v); GB 186.
[149] Primary decision [65]. See trial 05/11/2019, ts 152.
[153] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 355 ‑ 356.
[154] Pownall v Conlan Management Pty Ltd [1995] WASC 117; (1995) 12 WAR 370, 377 - 378; Heydon J D, Cross on Evidence (13th ed, 2021) [29070].
(2019) 54 WAR 222
(1997) 48 NSWLR 430
(2005) 79 ALJR 1816
(2004) 29 WAR 273
(2012) 246 CLR 182
(2019) 266 CLR 129
(2003) 214 CLR 118
(2016) 331 ALR 550
(2019) 55 WAR 208
(1990) 170 CLR 321
(1995) 12 WAR 370
(1995) 87 LGERA 435