Northern Sandblasting Pty Ltd v Harris - [1997] HCA 39 - HCA 1997 case summary — Zoe

CTHHCA

Northern Sandblasting Pty Ltd v Harris

[1997] HCA 39

High Court of Australia|1997-08-14|Before: Brennan CJ, Kirby JJ, Derrington J, Fitzgerald P, McPherson JA, Pincus JA

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Source facts

Court

High Court of Australia

Decision date

1997-08-14

Before

Brennan CJ, Kirby JJ, Derrington J, Fitzgerald P, McPherson JA

Source

Original judgment source is linked above.

Judgment (470 paragraphs)

[1]

High Court of Australia Brennan CJ Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ Northern Sandblasting Pty Ltd v Harris (FC 97/034) [1997] HCA 39

[2]

On 4 June 1987, Mrs Harris asked her nine-year-old daughter, Nicole Anne Harris (the respondent), to turn off an outside water tap that was supplying a garden sprinkler. Nicole, who was in bare feet standing on wet grass, was electrocuted when she went to do so. She suffered severe brain damage which leaves her in a vegetative state. By her next friend she brought action in the Supreme Court of Queensland against Mr Briggs, an electrician who had repaired a stove in the house, the North Queensland Electricity Board (the Board), Northern Sandblasting Pty Ltd (the landlord) which is the owner of the premises, and her parents, Mr and Mrs Harris, who were the tenants of the premises. The claim against Mr and Mrs Harris was abandoned. Wisely so, as Derrington J observed. At trial, his Honour found Mr Briggs to be guilty of negligence and he gave judgment against him, assessing Nicole's damages at the sum of $1,204,429.82. His Honour acquitted the Board and the landlord of negligence. On appeal to the Court of Appeal against his Honour's judgment dismissing Nicole's claim against the landlord, a majority of the Court (Fitzgerald P and McPherson JA, Pincus JA dissenting) allowed the appeal. Judgment was entered for the plaintiff against the landlord for damages in the amount assessed by Derrington J. The landlord appeals by special leave against the judgment of the Court of Appeal.

[13]

Although his Honour held that the landlord owed Nicole a general duty of care Nicole failed, in his Honour's view, to show a breach of that duty because - there was no hint of any such fault [that is, a general fault in the system] in the general circumstances known to the landlord, and it is not shown that the installation had been in place without investigation for so long that an ordinary person in the landlord's position should have thought of the possibility of a fault from that source. It is even more so in respect of the development of a fault from the work of the electrician who had left the tangle of wires which exerted the withdrawing force on the earth-wire. The same applies to any failure on his part to tighten the screw sufficiently because of an awkward placement of the link. It is not proved that the landlord, as a lay-person and not an expert, knew or ought to have known of anything which might have indicated earlier or more frequent inspections. Nor was it shown that there were any circumstances that in prudence required an inspection despite the absence of any such indications. Derrington J dismissed the action as against both the Board and the landlord. In the Court of Appeal a different legal effect was attributed by the respective judgments to the facts found by his Honour. Fitzgerald P was of the opinion that, in all the circumstances of the case, including the fact that "the defect in the earthing safety-system was readily ascertainable", the landlord was required "as an aspect of letting its house for reward to ensure its fitness for human habitation, including the safety of the electricity system and electrical equipment". Pincus JA, on the other hand, held that Nicole failed against the landlord because, inter alia, there was no evidence "that good practice necessitated an inspection, of such a kind as to discover the fault in the neutral link". McPherson JA found for Nicole on the ground that she was entitled to rely on s 106(1)(a) of the Property Law Act 1974 Q which his Honour held to "confer a right of action for breach that is available to the plaintiff in the present case".

[29]

takes effect by imposing an obligation upon one of the contracting parties as though the parties had embodied the obligation in their contract. No doubt it is right to say that the obligation is statutorily created But by describing the obligation as an implied condition, s 71 defines the nature of the obligation. It is an obligation which takes effect by a legal fiction, namely, that the parties had made a contract which included the obligation [A] breach of the obligation is not to be treated as a breach of an obligation imposed upon the obligor by the Act dehors the contract, but as an obligation imposed by the contract itself. The House of Lords adopted a similar approach to the construction of a statute [9] similar to the Queensland statutes in McCarrick v Liverpool Corporation [10] . In that case, Lord Uthwatt said [11] : On the language of the section it is clear that the effect of the section is to include in the tenancy agreement a contractual obligation binding the landlord to the tenant, not to subject the landlord to a statutory duty of performance. In O'Brien v Robinson [12] , the House of Lords considered the effect of s 32 of the Housing Act 1961 UK, which provided for an implied covenant by the landlord to keep in repair the structure and exterior of the relevant dwelling-house. Lord Diplock referred to McCarrick , among other authorities, and said [13] that: [A]lthough created by statute the legal nature of this obligation was contractual. Its characteristics were the same as those of an obligation created by a repairing covenant in a lease. What the statute was providing was that any contract for the letting of premises to which it applied should be read and given effect to as if it contained an express covenant by the landlord to keep the premises in such a state of repair as would make them reasonably fit for human habitation. The landlord's obligation lies in the field of contract, not of tort. His duty is not one of reasonable care to avoid injury to the tenant. It is a duty to perform his contract. (Emphasis added.) 1. (1994) 179 CLR 388. 2. Wallis (1994) 179 CLR 388 at 398 3. (1980) 49 FLR 283 at 286; 33 ALR 243 at 246. 4. Section 2(1) of the Housing Act 1936 UK provided that: "In any contract for letting for human habitation a house at a rent not exceeding - (a) in the case of a house situate in the administrative county of London, forty pounds; (b) in the case of a house situate elsewhere, twenty-six pounds; there shall, notwithstanding any stipulation to the contrary, be implied a condition that the house is at the commencement of the tenancy, and an undertaking that the house will be kept by the landlord during the tenancy, in all respects reasonably fit for human habitation." 5. [1947] AC 219 at 224; see also Ryall v Kidwell & Son [1914] 3 KB 135 6. McCarrick [1947] AC 219 at 230 7. [1973] AC 912. 8. O'Brien [1973] AC 912 at 927In Canada, a different approach to the construction of statutory implication of terms was taken by the Nova Scotia Supreme Court: see Gaul v King (1979) 103 DLR(3d) 233 at 240-241 and Basset Realty Ltd v Lindstrom (1979) 103 DLR(3d) 654 at 664-666.

[49]

But I think the law cast upon the defendant, when exercising this right, a duty towards the plaintiff. I do not think that duty went so far as to require him absolutely to provide that no damage should come to the plaintiff's wall from the use he thus made of it, but I think that the duty went as far as to require him to see that reasonable skill and care were exercised in those operations which involved a use of the party-wall, exposing it to this risk. If such a duty was cast upon the defendant he could not get rid of responsibility by delegating the performance of it to a third person. He was at liberty to employ such a third person to fulfil the duty which the law cast on himself, and, if they so agreed together, to take an indemnity to himself in case mischief came from that person not fulfilling the duty which the law cast upon the defendant; but the defendant still remained subject to that duty, and liable for the consequences if it was not fulfilled. In Kondis v State Transport Authority [19] , in the course of reviewing earlier cases, Mason J observed: On the hypothesis that the duty is personal or incapable of delegation, the employer is liable for its negligent performance, whether the performance be that of an employee or that of an independent contractor. Although the duty is personal to the defendant, the term "non-delegable" does not mean that the defendant cannot get another to discharge the duty. As Lord Hailsham of St Marylebone said in McDermid v Nash Dredging Ltd [20] in reference to an employer's duty to his employee, "non-delegable" means "only that the employer cannot escape liability if the duty has been delegated and then not properly performed". The problem is not so much to classify a duty as delegable or non-delegable as to identify the content of the duty. However, there are some categories of relationship that give rise to a duty to perform certain tasks that cannot be discharged merely by employing an independent contractor to perform them. As the majority judgment in Burnie Port Authority v General Jones Pty Ltd [21] observed: It has long been recognised that there are certain categories of case in which a duty to take reasonable care to avoid a foreseeable risk of injury to another will not be discharged merely by the employment of a qualified and ostensibly competent independent contractor. Thus the "non-delegable" duty of an employer was stated by this Court in Ferraloro v Preston Timber Pty Ltd [22] in these terms: The employer's duty, to whomsoever it falls to discharge it, is to take reasonable care to avoid exposing his employee to an unnecessary risk of injury and the employer is bound to have regard to a risk that injury may occur because of some inattention or misjudgment by the employee in performing his allotted task. (Emphasis added.) 1. (1883) 8 App Cas 443 at 446. 2. (1984) 154 CLR 672 at 683. 3. [1987] AC 906 at 910. 4. (1994) 179 CLR 520 at 550, per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ. 5. (1982) 56 ALJR 872 at 873; 42 ALR 627 at 629.

[51]

[T]he special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised. In cases where this special duty is imposed on a person in relation to a particular task, that person is under a duty not only to use reasonable care but to ensure that reasonable care is used by any independent contractor whom he employs to perform that task [26] . Moreover, if the task which an independent contractor is employed to perform carries an inherent risk of damage to the person or property of another and the risk eventuates and causes such damage, the employer may be liable even though the independent contractor exercised reasonable care in doing what he was employed to do, because the employer authorised the running of the risk and the employer may be in breach of his own duty for failing to take the necessary steps to avoid the risk which he authorised. In Burnie Port Authority v General Jones Pty Ltd [27] , following Stephen J in Stoneman v Lyons [28] , I noted that the employer of an independent contractor would be personally liable: if the risk of damage arises from the way in which the work will necessarily be done or from the way in which the employer expects that it will be done [29] , for in each of those situations the incurring of the risk is authorised by the employer. But the employer is not liable merely because it is foreseeable that the independent contractor might, on his own initiative, adopt a careless way of doing the work. If liability were imposed on an employer in that situation, the employer would become a virtual guarantor of the independent contractor's carefulness. 1. See The Commonwealth v Introvigne (1982) 150 CLR 258 at 279 2. Kondis v State Transport Authority (1984) 154 CLR 672 at 685-687 3. (1984) 154 CLR 672 at 687; and see Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 44 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 551-552 4. Hughes v Percival (1883) 8 AppCas 443 at 446. 5. (1994) 179 CLR 520 at 580. 6. (1975) 133 CLR 550 at 564. 7. As in Black v Christchurch Finance Co [1894] AC 48or McInnes v Wardle (1931) 45 CLR 548

[58]

[P]ossession of property is not in itself the source of any obligation with respect to its state or condition. Its use or enjoyment may be attended with as much, or as little, hazard as the occupier chooses, if he retains exclusive enjoyment of the perils as well as of the advantages of occupation. The circumstance which annexes to occupation the duty of care, when it exists, is the presence or proximity of others upon or to the premises occupied. It is because the safety of such persons may be endangered that the obligation of care arises. But as the purpose of the obligation is that those who come may go unharmed, the existence and the extent of the duty must depend upon their title to be there, upon the object with which they come, and upon the occupier's interest in their presence. His Honour added [35] that English law, followed in this country, "adopted a fixed classification of the capacities or characters in which persons enter upon premises occupied by others, and a special standard of duty [was] established in reference to each class". However, the special categories were not accepted by this Court in Australian Safeway Stores v Zaluzna [36] . In that case, the majority judgment dispensed with the categories, subsuming the various categories and their several duties of care in the general principles of the law of negligence. In Commissioner for Railways (NSW) v Cardy [37] Windeyer J had seen the various categories as examples of particular situations that attracted a duty of care in accordance with the principles stated by Lord Atkin in Donoghue v Stevenson [38] : The duty of the occupier is, however, rooted at bottom in his duty to his neighbour in Lord Atkin's sense. For, as Dixon J, as he then was, said in Lipman v Clendinnen [39] , "The circumstance which annexes to occupation the duty of care, when it exists, is the presence or proximity of others upon or to the premises occupied. It is because the safety of such persons may be endangered that the obligation of care arises." [40] The formulary rules really do no more than state what the law has determined a reasonable man must do to discharge a duty of care arising in particular circumstances. And they are decisive only in cases where the plaintiff's case is founded upon the duty of the defendant as occupier for the safety of his premises. A plaintiff who can rely on a duty of care arising in particular circumstances is not to be defeated merely because the defendant is the occupier of the land on which he came to harm. His presence upon the land and the circumstances in which he came there may be merely elements in a total situation from which a duty of care arises, and not the foundation of the defendant's duty of care. 1. (1932) 46 CLR 550 at 554. 2. Lipman (1932) 46 CLR 550 at 555 3. (1987) 162 CLR 479. 4. (1960) 104 CLR 274 at 316-317. 5. [1932] AC 562. 6. (1932) 46 CLR 550. 7. Lipman (1932) 46 CLR 550 at 554

[62]

So too as to premises generally the rule, I think, is the same, and upon the decisions as they stand may be stated as follows, namely: Where the occupier of premises agrees for reward that a person shall have the right to enter and use them for a mutually contemplated purpose, the contract between the parties (unless it provides to the contrary) contains an implied warranty that the premises are as safe for that purpose as reasonable care and skill on the part of any one can make them. The rule is subject to the limitation that the defendant is not to be held responsible for defects which could not have been discovered by reasonable care or skill on the part of any person concerned with the construction, alteration, repair, or maintenance of the premises But subject to this limitation it matters not whether the lack of care or skill be that of the defendant or his servants, or that of an independent contractor or his servants, or whether the negligence takes place before or after the occupation by the defendant of the premises. Citing this passage in Watson v George [45] , Fullagar J said: The above statement of the rule must, I think, be accepted as a correct statement: it can hardly be doubted that it represents the general current of authority. It is, however, from some points of view, a curious rule. The obligation is, in legal theory, contractual, but the liability depends on a breach by somebody at some stage of a common-law duty (which may, of course, have been also itself a contractual duty) to use reasonable care. It seems clear that the rule does not impose liability in the absence of negligence on the part of anybody. It is to be observed also that in some cases the whole question will resolve itself practically into a question whether the defendant or a servant of the defendant has been guilty of negligence in connection with the source of danger and damage. In Watson v George , carbon monoxide gas from a bathroom heater which had been unable to escape because of an accumulation of rust in a chimney caused the death of a lodger in a boarding house. Although the Court held that the occupier of the boarding house was under the duty of care stated by McCardie J in Maclenan v Segar , it was found that the bathroom heater itself was safe and that there was no negligence in the occupier's failing to conduct periodical inspections of the chimney [46] . On those findings, the plaintiff - the deceased's widow - failed. Had the bathroom heater been installed unsafely and improperly so as to present a danger to lodgers, the occupier would have been in breach of his duty of care owed to the lodger who died. What rational ground of distinction can be drawn between an occupier's duty to a lodger in respect of the premises to be used by the lodger for his habitation and a landlord's duty to a tenant in respect of the premises to be used by the tenant for habitation? So far as Cavalier v Pope is based on a landlord's liberty to let a tumble-down house for human habitation, it is inconsistent with s 7(a) of the Residential Tenancies Act and, I should think, it is inconsistent with a condition, or at least a warranty, of fitness for human habitation that would be implied in any modern-day lease of premises for that purpose [47] . 1. Voli v Inglewood Shire Council (1963) 110 CLR 74, discussed below. 2. [1917] 2 KB 325 at 332-333. 3. (1953) 89 CLR 409 at 424-425. 4. Watson v George (1953) 89 CLR 409 at 425 5. See Collins v Hopkins [1923] 2 KB 617 Wilson v Finch Hatton (1877) LR 2Exch D 336; Cameron v Young [1908] AC 176 at 180

[85]

The break was caused by a combination of factors, including the untidy work of the tradesman who had left the tangle of wires that probably withdrew the earth-wire from its socket, and the landlord was not obliged to foresee these. It was foreseeable however to a person in the position of the landlord that a fault might somehow develop in the system despite the engagement of qualified tradesmen in the work. However, there was no hint of any such fault in the general circumstances known to the landlord, and it is not shown that the installation had been in place without investigation for so long that an ordinary person in the landlord's position should have thought of the possibility of a fault from that source. It is even more so in respect of the development of a fault from the work of the electrician who had left the tangle of wires which exerted the withdrawing force on the earth-wire. The same applies to any failure on his part to tighten the screw sufficiently because of an awkward placement of the link. It is not proved that the landlord, as a lay-person and not an expert, knew or ought to have known of anything which might have indicated earlier or more frequent inspections. Nor was it shown that there were any circumstances that in prudence required an inspection despite the absence of any such indications. In these circumstances, it could not be concluded, in my view, that reasonable care on the part of the appellant required it to make an inspection of the switch-box, or to have a qualified electrician undertake such an inspection, before the respondent and her family went into occupation of the premises in question. Certainly no such duty could be erected as a general obligation imposed on landlords by reason of an analogy between a landlord's relationship with a prospective tenant and that of an occupier to an invitee. The duty of an occupier to an invitee, which I shall return to a little later, is determined according to ordinary principles of negligence [66] , and according to those principles "[w]hat is reasonable, of course, will vary with the circumstances of the plaintiff's entry upon the premises." [67] Those principles would not justify the imposition of the suggested duty generally and for the reasons I have given there is no evidence to support the finding of such a duty in this case. 1. See Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 2. See Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 487-488

[166]

Housing of the Working Classes Act 1885 UK (48 & 49 Vict c 72). Section 12 of that Act relevantly provided: "In any contract made after the passing of this Act for letting for habitation by persons of the working classes a house or part of a house, there shall be implied a condition that the house is at the commencement of the holding in all respects reasonably fit for human habitation." The Act was subsequently amended by the Housing, Town Planning, etc Act 1909 UK (9 Edw 7 c 44) which relevantly provided: "(14) In any contract made after the passing of this Act for letting for habitation a house or part of a house there shall be implied a condition that the house is at the commencement of the holding in all respects reasonably fit for human habitation " "15(1) The last foregoing section shall, as respects contracts to which that section applies, take effect as if the condition implied by that section included an undertaking that the house shall, during the holding, be kept by the landlord in all respects reasonably fit for human habitation." 2. At common law there was an implied term in a lease of furnished premises that they would be let in a state fit for habitation: Smith v Marrable (1843) 11 M& W 5 [152 ER 693]. 3. See Robbins v Jones (1863) 15 CB(NS) 221 at 240 [143 ER 768 at 776]; Cavalier v Pope [1906] AC 428 at 430, per Lord Macnaghten; at 431, per Lord James of Hereford; at 432-433, per Lord Atkinson; Cameron v Young [1908] AC 176 at 180 Ryall v Kidwell [1914] 3 KB 135 at 138-140, per Lord Reading CJ; at 142, per Phillimore LJ; at 143, per Lush J. Note that Cavalier v Pope [1906] AC 428was held to be good in law in the United Kingdom as recently as McNerny v London Borough of Lambeth (1988) 21 HLR 188(CA). However, it was rejected by the Full Court of South Australia in Parker v South Australian Housing Trust (1986) 41 SASR 493 4. See Robbins v Jones (1863) 15 CB(NS) 221 at 240 [143 ER 768 at 776]; Cavalier v Pope [1906] AC 428 at 429-430, per Lord Loreburn LC; at 430, per Lord Macnaghten; at 430, per Lord James of Hereford; Cameron v Young [1908] AC 176 at 179 Ryall v Kidwell [1914] 3 KB 135 at 142, per Phillimore LJ; at 143, per Lush J.

[393]

In respect of the tests expressed in the authority of this Court for the existence of a "non-delegable duty", the relationship between the appellant and the respondent does not readily fit within them. It is true that the respondent herself, as a young child, was vulnerable. She was in need of protection. But it would not normally be the landlord who would provide it. The "vulnerability" to which the legal test is addressed, in this context, relates to the relationship and not to particular individuals within it. Whereas, as a class, landlords might generally be in a better position than tenants, to carry the risk of unexpected harm in demised premises, this would not always be so. In commercial tenancies, the opposite might be the case. Specifying in a satisfactory way a sub-class of residential tenancies and then extending common law protection to all tenants within that sub-class, their families and visitors, presents significant challenges of definition. The appellant was not in actual occupation of the premises. Although it had a right, as landlord, to enter and inspect [20] , generally speaking it lacked the entitlement to control, or even to know, what was done or allowed to be done within the premises [21] . The tenant had a greater opportunity to observe and report defects. The appellant did not profess expert knowledge in the field in which the risk arose [22] . Both by law, and as a matter of practicality, the task required skill and expertise. It was at once necessary and reasonable that the tenants, their family and visitors, should rely on the skill, knowledge and expertise of a qualified electrical contractor such as was engaged by the appellant [23] . There was thus absent from this relationship the "central element of control" referred to in Burnie Port Authority [24] . There was no special dependence or vulnerability in the relationship of the kind that exists in a hospital or school. It is true that electricity can be hazardous. However, its supply to a domestic dwelling does not ordinarily involve an element of extraordinary danger such as to attract the non-delegable duty. Within the formulations previously offered by this Court, there was no other feature of the case which pointed to the existence of a "special" duty, as distinct from the general duty of care which the appellant accepted.

[435]

There remains the alternative argument based on s 7(a)(ii) of the Residential Tenancies Act. It was submitted that this provision did not give rise to a cause of action in favour of the respondent for breach of the implied terms to "provide and maintain the dwelling-house in a condition fit for human habitation". The primary argument was that the statutory provision in question was not of the kind which could be said to afford a foundation for a civil action for damages for the breach. Determining whether a statutory provision gives rise to a civil action for the breach is usually a matter of controversy because Parliament does not ordinarily state its intention in this regard [9] . It is left to courts, examining the language and apparent purpose of the legislation, to attribute to the lawmakers whether or not it was their purpose to provide for civil liability for breach of the provision in question. Appeals to legislatures to make their intention in this respect more plain have fallen on deaf ears [10] . So it is in the case of s 7 of the Residential Tenancies Act. Because reference to the ultimate obligation to define the intention and purpose the legislation tends to state, rather than solve, the problem, resort has been had to various presumptions and policy considerations in order to discern the answer to the question upon which the legislators remained resolutely silent. Factors which weigh in my mind as suggesting that s 7 of the Residential Tenancies Act was intended to give rise to civil liability for the breach include the apparent reformatory objectives of the Act; the particularity of the provisions implied into tenancy agreements by the Act; the provision that the implied obligations will operate "[n]otwithstanding any agreement between a landlord and tenant" to the contrary; the apparent purpose to protect tenants, as a class, from the rental of premises "in a condition [not] fit for human habitation" and the need, in modern circumstances, to rely upon individuals, rather than the State, to uphold such standards [11] . In this last respect, it is useful to recall the observations of Judge Cardozo, then in the Court of Appeals of New York, in Altz v Leiberson [12] :

[455]

In England, the obligation imposed by legislative provisions similar to those in the Residential Tenancies Act has been given a construction by which the implied obligation that a dwelling-house should be kept reasonably fit for human habitation is subject to an implied term that the obligation on the landlord to repair any defect did not arise until the landlord had been given notice of it [25] . The House of Lords acknowledged the criticism of this holding. However, their Lordships felt constrained to apply it because the provision had been re-enacted in England in the same form after a decision of the English Court of Appeal to that effect [26] . This is the reference to "the requirement of notice" mentioned by Jones JA in Gaul v King [27] , cited above. This Court is not bound by the English authority. Whilst great respect will be paid to it, because of the lineage of the local legislation, the decisions must be weighed on their merits. An earlier opinion in England to the contrary effect [28] appears to have been overlooked. The English authority has been criticised [29] . The consideration of the re-enactment of the legislation in identical terms after an authoritative opinion (for whatever that is worth) does not apply in the case of the Residential Tenancies Act. It is safer to construe that Act in the terms in which it passed through Parliament. It would have been easy for Parliament to have included, as an exemption from liability, a proviso excusing the landlord from defects of which it had not been given notice. No such provision appears. The legislation is clearly definitive of rights and obligations and generally protective. I therefore see no reason why this Court should read such a proviso into the plain words of the Residential Tenancies Act. The duty is to provide and maintain premises "in a condition fit for human habitation". It is that duty which must be fulfilled. Importing a requirement to give notice, as a pre-condition to the imposition of the liability, is not warranted by the language or purpose of the Residential Tenancies Act.