Northern Sandblasting Pty Ltd v Harris

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

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.

The landlord bought the house property in July 1984. At that time, the local electricity supplier, the Board, inspected the premises. In November 1986 Mr Briggs, who was the landlord's usual electrical contractor, checked and repaired a refrigerator and stove in the premises. Mr and Mrs Harris entered into possession of the premises as tenants on about 12 December 1986 under an oral agreement for a periodic tenancy at a rental of $100 per week. When the tenants entered into possession, electrical power was already connected to the house. There was no inspection of the electrical system in the house either at that time or at any subsequent time prior to Nicole's accident on 4 June 1987.

On 2 June 1987, Mrs Harris informed the landlord that the stove was not working. The landlord engaged Mr Briggs to carry out the repair. The active wire carrying electric current to a hotplate terminal had to be reconnected. Derrington J described the work done by Mr Briggs:

The fault was simple enough and his repair of it was competent and effective. He cut off some burned active wire, removed a short length of insulation so as to expose undamaged wire, and connected the exposed length to the hotplate element by means of the screw on the ceramic base. A short length of the active wire remained exposed above the screw, with the potential for its contact with the slack earth-wire nearby. However he failed to ensure that it could not do so, and he then replaced the cover plate. The earth wire had been attached to a metal strip extending from the hotplate element but it was not rigidly attached and, because it was slack, it could easily move and foul the exposed active wire. Mr Briggs should have ensured that it could not do so. Derrington J found Mr Briggs negligent because he failed to isolate the earth wire connected to the stove from the active wire carrying the current to the hotplate.

At the time of Nicole's accident, the hotplate was switched on, the earth wire fouled the active wire and carried the current to the water pipes. The water pipes were electrically alive because of two defects in electrical wiring. One defect was the slack earth wire which fouled the active wire attached to the hotplate terminal. The second was a defect which prevented the safety mechanism of the house electrical system from cutting the electrical current once the earth wire fouled the active wire. I take the following explanation of the system from the findings made by Derrington J.

Electricity was supplied to the house in a cable which contained an active wire and a neutral wire. Electrical current enters electrical equipment from the active wire and makes a circuit, leaving through the neutral wire back to the general power system. If there is a short-circuit, an earth wire attached to the equipment should carry the current to a major earth wire which runs to the domestic switch box where the major earth wire is connected through a "neutral link" to the neutral wire, thus completing the circuit. If excessive power flows through the active wire because of a short-circuit, a fuse will blow in the fuse box and the circuit breaks. In the present case, when the earth wire attached to the stove fouled the active wire where it was attached to the hotplate, the earth wire should have carried the excess current to the neutral link in the power box for a moment until the fuse blew. But the major earth wire had been pulled out of its socket in the neutral link or was too loose in the socket to provide an efficient connection. Instead, electricity was conducted from the active wire into the earth wire and, from there, to the water pipes.

The major earth wire is connected to the water pipes as well as to the neutral link as an additional safety measure. If this measure is effective, the current is conducted along the pipes and through the ground to a metal spike that is near the pipes and close to a power pole outside the property. As the metal spike is connected to a neutral wire on the power pole, an unimpeded flow of current through the pipes to the metal spike should complete the circuit to that neutral wire producing much the same effect as if the current had flowed through the neutral link to the neutral wire in the power box. But it sometimes happens, and it happened in this case, that the ground between the pipes and the metal spike is a poor conductor of electricity. The fuse did not blow and the pipes remained charged with electrical power. When the plaintiff, in bare feet on the wet ground, touched the tap, the current flowed through her body with tragic results.

Nicole's injuries were caused by two concurrent faults, namely, the defective connection of the earth wire to the neutral link in the power box and the fouling of the active wire attached to the stove hotplate by the earth wire. The latter fault was caused by Mr Briggs' negligence. The former fault would have been discovered and corrected when the tenants went into possession had there been a visual inspection of the power box at that time. That fact was not disputed by the Board. In any event, his Honour found that it was probable that inspection would have led to that result. But his Honour acquitted the Board of negligence, as it was not required to conduct an inspection of premises to which power was already connected. His Honour found also that "there was probably no activity associated with the neutral link between that date when it is alleged that the inspection should have been made [by the Board] and the date of the accident". This was an important finding for two reasons. First, it shows that "the untidy work of the tradesman who had left the tangle of wires that probably withdrew the earth wire from its socket" occurred before the tenants were let into possession. Secondly, it affected the issues between Nicole and the landlord. By her amended statement of claim she alleged, inter alia, that the landlord -

3g. In breach of its duty of care owed to the Plaintiff and in breach of its aforesaid statutory duty the Third Defendant:

(a) failed to inspect the premises adequately or at all before allowing the Plaintiff and her family into possession of them;

(b) failed to have the premises inspected adequately or at all before allowing the Plaintiff and her family into possession of them.

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".

In this Court, Nicole's counsel puts her entitlement to recover against the landlord on four alternative bases:

1. Breach of a common law duty of care owed by the landlord to the tenants and the tenants' family to ensure that the electrical system in the premises as let was in a safe condition. This breach occurred because the major earth wire was not connected to the neutral link in the switchbox.

2. Breach of a non-delegable duty of care owed by the landlord to the plaintiff in the doing of the work repairing the stove. This breach occurred because the active wire attached to the hotplate terminal was not effectively isolated from the slack earth wire nearby.

3. Breach of a statutory duty imposed by s 106(1)(a) of the Property Law Act 1974 Q.

4. Breach of a statutory duty imposed by s 7(a) of the Residential Tenancies Act 1975 Q.

The breaches alleged in the last two bases comprehend both the fault in the neutral link and the fault arising from the slack earth wire in the stove. It is convenient to consider the propounded bases of liability under three headings: statutory liability of the landlord, the landlord's liability for Mr Briggs' negligence and the landlord's liability in letting the premises in an unsafe condition.

At common law, the general rule is that if a landlord lets premises in a dangerous state, making no promise that the state of the premises is sound, and the tenant agrees to take the premises in their existing condition, the landlord incurs no contractual liability should the danger cause the tenant injury [1] . A condition of fitness may be implied if the premises are let for the purpose of residence and are furnished or partly furnished [2] but, as none of the tenant's family, invitees and licensees is party to the lease or agreement for lease, none of them has a contractual right against the landlord if the condition of fitness is not satisfied [3] . In Cavalier v Pope [4] Lord Macnaghten and Lord Atkinson affirmed the statement of Erle CJ in Robbins v Jones [5] that:

A landlord who lets a house in a dangerous state, is not liable to the tenant's customers or guests for accidents happening during the term; for, fraud apart, there is no law against letting a tumble-down house; and the tenant's remedy is upon his contract, if any. In Queensland, a tenant's contractual rights in respect of the condition of premises let for the purpose of human habitation were statutorily prescribed by the Property Law Act 1974 Q and later by the Residential Tenancies Act 1975 Q. Section 106(1)(a) of the former Act reads as follows: (1) In a lease of premises for a term of 3 years or for any less period there is an obligation -

(a) on the part of the lessor, in the case of a lease of premises for the purpose or principally for the purpose of human habitation, to provide and maintain the premises or such part as is let for such purpose in a condition reasonably fit for human habitation.

This provision was overtaken by s 7(a) of the Residential Tenancies Act which reads as follows: Notwithstanding any agreement between a landlord and tenant, in every tenancy agreement entered into after the commencement of this Act there shall be implied obligations -

(ii) to provide and, during the tenancy, maintain the dwelling-house in good tenantable repair and in a condition fit for human habitation;

(iii) to maintain during the tenancy fixtures, fittings, goods and chattels let with the dwelling-house in good tenantable repair;

(iv) to comply with all lawful requirements in regard to health and safety standards with respect to the dwelling-house;

1. Hart v Windsor (1843) 12 M& W 68 [152 ER 1114]. 2. Smith v Marrable (1843) 11 M& W 6 [152 ER 693]; Sutton v Temple (1843) 12 M& W 52 [152 ER 1108]. 3. Fairman v Perpetual Investment Building Society [1923] AC 74 at 83, 94, 95. 4. [1906] AC 428 at 430, 433. 5. (1863) 15 CB (NS) 221 at 240 [143 ER 768 at 776].

It may be that s 7(a) of the Residential Tenancies Act repeals the provisions of s 106(1)(a) of the Property Law Act, but it is unnecessary to determine that question. The effect of either provision is to impose an obligation on the landlord as though it were an obligation imposed by a term of the lease or tenancy agreement. The construction of statutory provisions which prescribe the terms to be implied or to be deemed to be incorporated in a contract was considered by this Court in Wallis v Downard-Pickford (North Queensland) Pty Ltd [6] in reference to a provision of s 74 of the Trade Practices Act 1974 Cth. That section provides that a warranty of care and skill should be implied in contracts for the supply of services by a corporation in the course of a business. Toohey and Gaudron JJ adopted [7] what I had said in Arturi v Zupps Motors Pty Ltd [8] in reference to s 71 of the Trade Practices Act. I said that that section:

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.

Adopting this approach to the construction of the Queensland statutes, neither of them on its face creates any contractual right in Nicole against the landlord. The lease or agreement for lease determines the right of a tenant as against a landlord with respect to the condition of premises, but not the right of one whom the landlord allows to enter upon the premises in some other capacity [14] .

1. Lipman v Clendinnen (1932) 46 CLR 550 at 563-564

However, it is submitted that s 55 of the Property Law Act conferred on Nicole a right commensurate with the tenant's right imposed by s 106(1)(a) of the Property Law Act or by s 7(a) of the Residential Tenancies Act. Section 55 reads as follows:

(1) A promisor who, for a valuable consideration moving from the promisee, promises to do or to refrain from doing an act or acts for the benefit of a beneficiary shall, upon acceptance by the beneficiary, be subject to a duty enforceable by the beneficiary to perform that promise.

"acceptance" means an assent by words or conduct communicated by or on behalf of the beneficiary to the promisor, or to some person authorised on the promisor's behalf, in the manner (if any), and within the time, specified in the promise or, if no time is specified, within a reasonable time of the promise coming to the notice of the beneficiary.

(a) which is or appears to be intended to be legally binding; and

(b) which creates or appears to be intended to create a duty enforceable by a beneficiary;

and includes a promise whether made by deed, or in writing, or, subject to this Act, orally, or partly in writing and partly orally.

In my opinion, s 55 has no application to the terms implied in a lease or a tenancy agreement by force of s 106(1)(a) of the Property Law Act or by force of s 7(a) of the Residential Tenancies Act. Although those provisions impose on the landlord obligations ascertained as though they were imposed by contract, s 55 operates only upon duties created by de facto promises. There must be a promise "to do an act for the benefit of a beneficiary". The phrase "for the benefit of a beneficiary" is descriptive of the promised act. From the context of s 55, it appears that the identity of the beneficiary must be ascertainable from the terms of the promise made. The beneficiary is not any person who, in the event, would have been benefited had the promise been fulfilled. If that had been the intention of the legislature, the duty which s 55 imposes would have been owed to the world at large or, at the least, to any person who may foreseeably have been benefited by the discharge of the duty. That that was not the intention of the legislature can be seen from the requirement that a duty to perform the promise becomes enforceable by a beneficiary "upon acceptance by the beneficiary". In other words, the acceptance must be made by a person who, from the terms of the promise, can be identified as a beneficiary capable of accepting the benefit of the promise.

Section 55 has no application in the present case where the statutorily-implied promise is not a promise to do an act to benefit any beneficiary other than the tenant. Indeed, if s 55 were held to expand the categories of beneficiaries who might enforce contractually the rights conferred on a tenant by either s 106(1)(a) of the Property Law Act or by s 7(a) of the Residential Tenancies Act, it would be impossible to predicate on any logical basis the categories of beneficiaries who might be entitled under s 55. If s 55 could operate to confer the rights capable of enforcement contractually on members of a tenant's family, would not sub-lessees, or invitees, or licensees, or passers-by have the same rights? The question has only to be asked in order to perceive the answer.

I would therefore reject Nicole's claim so far as it is founded on the Property Law Act or the Residential Tenancies Act.

2. Landlord's liability for Mr Briggs' carelessness

The work which Mr Briggs did in connecting the active wire to the hotplate terminal was not done as the landlord's servant. Mr Briggs was an independent contractor. The general rule to be applied when a plaintiff suffers by reason of an independent contractor's negligence in performing a task at the request of a defendant was stated by Dixon J in Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd [15] :

In most cases in which a tort is committed in the course of the performance of work for the benefit of another person, he cannot be vicariously responsible if the actual tortfeasor is not his servant and he has not directly authorised the doing of the act which amounts to a tort. The work, although done at his request and for his benefit, is considered as the independent function of the person who undertakes it, and not as something which the person obtaining the benefit does by his representative standing in his place and, therefore, identified with him for the purpose of liability arising in the course of its performance. The independent contractor carries out his work, not as a representative but as a principal. 1. (1931) 46 CLR 41 at 48.

When this rule applies, no vicarious liability for the independent contractor's negligence is imposed on a defendant who requested the performance of the task in the course of which the relevant negligent act was done or the relevant negligent omission was made. In such a case, there is no basis for sheeting home to the defendant either liability for the independent contractor's tort or responsibility for the independent contractor's act or omission [16] .

1. As to the alternative bases for imposing vicarious liability for another's negligence, see Darling Island Stevedoring & Lighterage Co Ltd v Long (1957) 97 CLR 36

However, if the defendant is under a personal duty of care owed to the plaintiff and engages an independent contractor to discharge it, a negligent failure by the independent contractor to discharge the duty leaves the defendant liable for its breach. The defendant's liability is not a vicarious liability for the independent contractor's negligence but liability for the defendant's failure to discharge his own duty [17] . The duty in such a case is often called a "non-delegable duty".

1. cf Voli v Inglewood Shire Council (1963) 110 CLR 74 at 95

In principle, no duty owed by A to B can be delegated to C. If it were otherwise, the mere delegation would discharge A's duty to B. The difference between a duty and its discharge appears clearly in the speech of Lord Blackburn in Hughes v Percival [18] where, in reference to the duty owed by the defendant to his neighbour in making use of the party-wall between them, his Lordship said:

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.

The question whether a defendant who employs an independent contractor to perform a given task is liable as for a breach of the defendant's own duty in the event of negligence on the part of the independent contractor in performing the task is not answered by pointing to the independent contractor's negligence [23] . The independent contractor's negligence is material only in showing the non-discharge of any duty that may have been imposed on the defendant. The basic question is whether any and what personal duty was imposed upon the defendant in the circumstances of the case. Apart from well-established relationships that give rise to non-delegable duties [24] , it is not easy to distinguish between the circumstances which give rise to a duty that is discharged by the selection of a competent independent contractor to undertake a particular task and the circumstances which give rise to a duty that can be discharged only by the non-negligent performance of the task. Mason J essayed a definition of the material relationships that would give rise to a non-delegable duty in Kondis v State Transport Authority [25] :

[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

Cases of special relationships aside, the duty of care that arises when a task to be performed does not carry an inherent risk of damage to the person or property of another may be discharged by the engaging of a competent independent contractor to perform it. Whether a task does or does not carry an inherent risk of damage to another's person or property is a question of fact to be determined in the light of common experience.

In the present case, when Mrs Harris advised the landlord that the stove was not working, the landlord appears to have accepted that it was its contractual duty to get the stove repaired. The work could be undertaken only by a licensed electrician [30] . The repair could not be undertaken by the landlord's unlicensed servants. The fact that negligence on the part of Mr Briggs might foreseeably cause injury to Nicole or to some other member of the tenants' family or to the tenants' visitors was not enough to impose a "non-delegable" duty of care on the landlord. Nor was the relationship between the landlord and the tenants and their family sufficient to impose on the landlord a non-delegable duty of care in effecting repairs to the premises or to equipment in the premises that were needed because of ordinary wear and tear during the tenancy or because of some other reason apart from the landlord's own default. The repair of the stove did not carry any inherent risk of injury unless it were negligently done. There was no want of due care on the part of the landlord in selecting Mr Briggs to repair the stove. Apart from the landlord's duty to exercise reasonable care in the selection of a licensed electrician to repair the stove, no further duty in respect of the repair of the stove arose from the circumstances. I would therefore reject the submission that the landlord is liable in damages to Nicole by reason of the failure by Mr Briggs to ensure that the earth wire did not foul the active wire attached to the stove hotplate.

If Mrs Harris had herself attempted to turn off the tap and had been electrocuted, her claim against the landlord would have been based on the contract between the landlord and the tenants. On the facts of the present case, it is clear that whoever failed to fix the major earth wire securely into the neutral link was negligent and that that person's negligence rendered the entire electrical system of the house unsafe. Irrespective of whose negligence it was, the landlord was in breach of the contractual duty which it owed to the tenants. Although a landlord might owe a contractual duty of care to tenants in respect of the condition of the premises at the time when the tenants are let into possession, the doctrine of privity of contract precludes any person who was not party to the contract from recovering damages against the landlord in reliance on that duty [31] . Thus the unsuccessful plaintiff in Cavalier v Pope [32] , who was the wife of the tenant, failed in her action although her injuries were caused by the collapse of floor boards which the landlord had promised to repair. Lord Macnaghten said she could be in no better position to recover damages than a customer or guest [33] .

1. Fairman v Perpetual Investment Building Society [1923] AC 74 at 80-81 2. [1906] AC 428. 3. Cavalier v Pope [1906] AC 428 at 430

In contemporary conditions, Lord Macnaghten's declaration of the landlord's partial immunity from liability to the wife of the tenant in respect of dangers in the premises as let is incongruous in comparison with the duty imposed on occupiers. A rigorous duty of care in tort is imposed on occupiers of dangerous premises who let other persons enter upon those premises for reward and it seems anomalous that a landlord who lets into possession a tenant and his family to inhabit the premises should owe a similar duty only to the tenant. True, a landlord who lets a tenant into possession may not have been in occupation of the premises but the landlord is in possession of the premises at the time of the tenant's entry and, immediately prior to that time, has both the power to effect repairs to the premises and power to put the tenant into possession. The concatenation of corresponding powers in an occupier is the foundation of the occupier's duty of care.

The traditional basis of an occupier's liability was stated by Dixon J in Lipman v Clendinnen [34] :

[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

Once the duty of an occupier of premises is seen simply as an example of the general duty of care, it is difficult to maintain any difference in content between the duty of care owed by an occupier of premises to a person entering under contract or for reward and the duty of care owed by the landlord of premises in respect of the condition of the premises at the time he lets a tenant into possession [41] . In the first place, occupation is not in itself the foundation of a duty of care owed to entrants upon the occupied premises. The true bases of the occupier's duty of care are the power of control which an occupier has to consent to another's entry and the power to safeguard the entrant against injury or loss from defects in the occupied premises [42] . Yet a landlord has powers corresponding to those of an occupier to consent to entry into occupation of the premises by the tenant and those who, to the knowledge of the landlord, are intended to occupy the premises under and for the purposes of the tenancy and the power to safeguard those persons against injury or loss from defects that are in the premises at the time when the tenant is let into possession.

1. In Greene v Chelsea Borough Council [1954] 2 QB 127a distinction was drawn between the liability of the Council to the wife of a person who signed an occupation agreement and the liability of the landlord to the wife of the tenant in Cavalier v Pope , but the distinction is too fine to be maintained: see especially per Denning LJ (at 138). 2. See Wheat v E Lacon & Co Ltd [1966] AC 552 at 578-579

Secondly, although a contractual duty of care is owed by an occupier to a person who enters under contract, a corresponding duty of care is owed in tort to any who enter by consent and for reward [43] . The contractual duty, in the absence of a special stipulation, was stated by McCardie J in Maclenan v Segar [44] :

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

However, the content of the contractual duty does not necessarily translate into a duty of care in tort. Both Maclenan v Segar and Watson v George base the duty of care of which they speak firmly in contract. It was acknowledged by the majority judgment in Calin v Greater Union Organisation Pty Ltd [48] that the decision in Zaluzna had not dealt with the duty of care in tort owed by an occupier to a person who enters under contract. However, in Voli v Inglewood Shire Council [49] , Windeyer J held that an occupier owed a duty of care formulated in accordance with Maclenan v Segar not only to the person who had contracted and paid for his own entry into the occupied premises but also to those whose entry had been paid for. The extension was not effected by relaxing the doctrine of privity of contract but by acknowledging the existence of a duty of care in tort. Windeyer J said [50] , speaking of the passage above cited from Maclenan v Segar :

That passage, it will be noticed, places the source of the obligation in an implied term in a contractual right of entry upon the premises. And where the plaintiff who suffered an injury had himself paid to go in, the liability of the owner or occupier whom he paid can be rested on breach of contract. In the early decisions it was usually so put. But Martin B said in Francis v Cockrell [51] , "if you choose to put it in another form, it is the duty of a person, who so holds out a building of this sort, to have it in a fit and proper state for the safe reception of persons who are admitted" [52] . Looked at in that way the involvement of contractual elements in an action of negligence, the curiosity on which Fullagar J remarked in Watson v George [53] largely disappears. For, although in Francis v Cockrell [54] the plaintiff had himself paid to enter the grand-stand, would it have made any difference if a friend had bought his ticket for him? Should a person whose ticket was bought for him by a friend, as they went in together, be in a worse position, if they both be hurt by a collapse of the stand, than the friend who paid for them both? Surely not? Then suppose a person had taken all the places so that he might invite whom he liked, would his guests, injured when the stand collapsed, have had no right of action against those who erected it? The shadow that the requirement of privity of contract in the law of contract has cast upon the law of tort is now dispelled, or almost so. Liability in tort always depends upon proximity of relationship, not on privity of agreement. 1. (1991) 173 CLR 33 at 38. 2. (1963) 110 CLR 74. 3. Voli (1963) 110 CLR 74 at 92-93 4. (1870) LR 5 QB 501. 5. Francis v Cockrell (1870) LR 5QB 501 at 509. 6. (1953) 89 CLR 409. 7. (1870) LR 5 QB 184; (1870) LR 5 QB 501.

The duty of care owed by the occupier of premises to persons to whose entry the occupier consents for reward arises by reason of the relationship between the occupier and the entrants. It arises in order "that those who come may go unharmed", as Dixon J said in Lipman v Clendinnen [55] . It is imposed on the occupier because the occupier not only has the power to safeguard the entrant against the risk of injury but because the occupier consents to the entry, the entrant is entitled to expect that the entry will not expose him to the risk of harm and the entrant necessarily relies on the occupier for protection from harm. In Calin [56] , where the case was conducted solely on the basis of a duty of care imposed by the common law on a theatre proprietor, it was unnecessary to determine whether there was any difference between that duty and the contractual duty. But whatever considerations generally require the implication of a term as to the condition of the premises in a contract by which an occupier agrees to give entrance to the premises for reward must equally prescribe the duty of care to be imposed on such an occupier towards any person who enters with the occupier's consent and for the occupier's commercial benefit. I would hold that an occupier owes to such persons a duty of care and that that duty is to see that the premises are as safe for the contemplated purpose of the entry as reasonable care and skill on the part of anyone can make them [57] .

1. (1932) 46 CLR 550 at 554. 2. (1991) 173 CLR 33 at 40-41, 45. 3. Maclenan v Segar [1917] 2 KB 325 at 332-333

However, the relationship between a landlord and those who, to the knowledge of the landlord, are to occupy the premises under and for the purposes of the tenancy has hitherto been treated differently from the relationship of the occupier with persons who enter with his consent and for his commercial benefit. An attempt to sheet home to the landlord responsibility for damage caused by defects in the premises for the repair of which the landlord was responsible was made in Payne v Rogers [58] . A third party entrant was held entitled to recover against the landlord in order to avoid circuity of action, as the tenant-occupier would have been entitled, if sued, to recover over against the landlord. But Payne v Rogers was disapproved in Cavalier v Pope [59] , where it was held that the landlord did not have the control of the premises necessary to raise the duty of care to a third party. The necessary power of control, said Lord Atkinson [60] , "implies something more than the right or liability to repair the premises. It implies the power and the right to admit people to the premises and to exclude people from them." That power does not belong to the landlord once he has parted with possession. But it is the power which the landlord has and exercises in respect of the premises at the time when the tenant and those who, to the knowledge of the landlord, are intended to occupy under and for the purposes of the tenancy are let into possession. Therefore it would be anomalous to hold that Cavalier v Pope denies the existence of a landlord's duty of care to the tenant and those who, to the knowledge of the landlord, are intended to occupy under and for the purposes of the tenancy, the duty being measured by the standard of care expressed in Maclenan v Segar . The anomaly was noted by Windeyer J in Voli [61] :

[I]n Donoghue v Stevenson itself Lord Macmillan spoke of Cavalier v Pope as being "in a different chapter of the law". The landlord's immunity thus continues unaffected by the results of the snail's emergence Lord Denning has described Cavalier v Pope as a "relic of a worn out fallacy which must be kept in close confinement". In my opinion, the anomaly is logically indefensible and is to be accounted for by social conditions that have long since passed. 1. (1794) 2 H Bl 350 [126 ER 590]. 2. [1905] 2 KB 757 at 762; [1906] AC 428 at 433. 3. Cavalier v Pope [1906] AC 428 at 433 4. (1963) 110 CLR 74 at 90.

I would hold a landlord to be under a duty of care in respect of the demised premises requiring the same standard of care as is required of occupiers towards those who enter occupied premises by consent and for reward, the landlord's duty of care being (i) limited to defects in the premises at the time when the tenant is let into possession; and (ii) owed to the tenant and to those who, to the knowledge of the landlord, are intended to occupy the premises under and for the purposes of the tenancy. The standard required of the landlord is the standard stated by McCardie J in Maclenan v Segar . The duty does not extend to defects in the premises that are discoverable only after the landlord parts with possession.

In accordance with this principle, I would hold the landlord in the present case to have owed a duty of care to the tenants and to their children to see that the premises at the time the tenants went into possession were as safe for their habitation as reasonable care and skill on the part of anyone could make them, excluding 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. The premises were unsafe by reason of a defect which would have been manifest on a simple inspection, namely, the lack of connection between the major earth wire and the neutral link. That defect was easily remediable. The landlord is thus liable for breach of its duty of care owed to Nicole.

On 4 June 1987 the respondent, who was then nine years of age, suffered an electric shock when she grasped a tap to turn it off at her mother's request. The tap was in the garden of house premises rented by the respondent's father and mother and occupied as the family home. The shock caused severe brain damage to the respondent who is now in a vegetative state, capable only of coarse responses to stimuli and without understanding or awareness of her condition.

The respondent's parents rented the premises in question from the appellant under an oral tenancy agreement at a rental of $100 per week. The family commenced to occupy the premises on about 12 December 1986. The appellant company was owned and controlled by the respondent's aunt and her husband.

Two days before the accident, the respondent's mother told the appellant that an element in the stove did not work. The appellant engaged the electrical contractor which it ordinarily used to repair the defect. The electrical contractor carried out the repairs, but he did so negligently in such a way that it was possible that the earth wire could make contact with the active wire in the element and so cause the whole earthing system to become and remain alive. That was what happened. When the respondent was injured, a short circuit had occurred in the stove. Had the earthing system in the premises been working properly, all that would have happened would have been that the fuse for the stove in the domestic switch-box would have blown, cutting off electrical current to the stove and putting an end to the short circuit.

However, the effective operation of the general earthing safety system depended upon a link in the domestic switch-box between the major earthing wire and a neutral wire. The major earthing wire was not properly connected with the consequence that the link was absent and the general earthing safety system was inoperative. There was an alternative safety mechanism which would also have caused the stove fuse to blow if the system had been working effectively. The major earthing wire was connected to the water pipe system in the ground and a neutral wire on a nearby power pole was connected to a metal peg in the ground near the power pole. Provided the soil between that point and the water pipes in the ground had acted as a suitable conductor, the current would have passed to the neutral wire, causing the fuse to blow.

Unfortunately, as is sometimes the case, the soil in which the water pipes were buried was a poor conductor of electricity. As a consequence, the entire water pipe system, including the garden tap, became charged with electricity because of the short circuit in the stove. When she touched the tap, the respondent was standing on wet grass with bare feet and the electrical current passed through her body to the ground.

The premises occupied by the respondent and her family were purchased by the appellant in July 1984. At that time the electrical system was inspected by the supplier, the North Queensland Electricity Board (the Board), and passed by it. The premises had been unoccupied for a short time before the respondent's family went into occupation and when they did the power was merely turned on without any further inspection.

The respondent, by her mother as next friend, sued the electrical contractor, the Board and the appellant for damages in the Supreme Court of Queensland. Derrington J, who tried the action, found against the respondent in her claims against the Board and the appellant but entered judgment against the electrical contractor in the sum of $1,204,429.82. The respondent appealed to the Court of Appeal against the dismissal of her claim against the appellant. By a majority (Fitzgerald P and McPherson JA, Pincus JA dissenting) the Court of Appeal upheld the respondent's appeal and ordered that there be judgment against the appellant as well as the electrical contractor. The appellant now appeals to this Court against that order.

The respondent's claim against the appellant as contested in the Court of Appeal was based, first, upon the alleged negligence of the appellant and, secondly, upon alleged breaches of statutory obligations owed by the appellant to the respondent. The statutes which were said to impose those obligations were the Property Law Act 1974 Q and the Residential Tenancies Act 1975 Q. In the Court of Appeal, Fitzgerald P found in favour of the respondent on the question of negligence. McPherson JA found in favour of the appellant upon the basis of statutory duties imposed by the legislation in question, but found against the respondent on the question of negligence. Pincus JA found against the respondent upon both issues.

I agree with Gummow J, for the reasons which he gives, that neither of the Queensland Acts upon which the respondent relies affords her a cause of action against the appellant. Nevertheless, it will be necessary to refer to certain provisions of those Acts in relation to the respondent's claim in negligence. I now turn to that claim.

The respondent put her claim in negligence upon two bases. First, she said that there was a duty of care cast upon the appellant as landlord to inspect the premises before they were occupied by the respondent's family. Such an inspection, it was said, would have revealed the neutral link problem in the domestic switch-box which, upon being repaired, would have averted the accident which subsequently occurred. Secondly, she contended that the duty to take care in the repair of the stove was a non-delegable or personal duty which could not be delegated to the electrical contractor. In other words, she contended that the duty was not simply a duty to take reasonable care but a duty to see that reasonable care was taken.

The appellant, in denying negligence, did not attempt to rely upon those cases, culminating in the decision of the House of Lords in Cavalier v Pope [62] , which held that a landlord of premises is under no duty of care to persons who may suffer injury on the premises by reason of the landlord's failure to comply with an obligation to keep the premises in repair. Rather, the appellant rightly conceded that the situation was as described by King CJ in Parker v Housing Trust [63] . There his Honour said:

I am satisfied that the supposed rule, for which Cavalier v Pope [64] is regarded as authority, that a lessor is not under a duty of care to persons who may suffer injury on the demised premises by reason of the lessor's failure to comply with a covenant with the lessee to effect repairs or to keep the premises in repair, is inconsistent in principle with the modern doctrine of liability for negligence as it has developed since Donoghue v Stevenson [65] . That being so, I do not think that this Court would be justified in following the decision of the House of Lords, thereby imposing on the parties a result which the Court would consider to be incorrect. I would therefore hold that there is no rule of law precluding the existence of a duty of care in the lessor if on the ordinary principles of the law of negligence the facts are such as to give rise to such a duty. 1. [1906] AC 428. 2. (1986) 41 SASR 493 at 516-517. 3. [1906] AC 428. 4. [1932] AC 562.

The appellant conceded the existence of a duty of care on its part to the respondent. No doubt that concession was properly made having regard to the relationship between the appellant and the respondent. In that regard, it is relevant to observe that pursuant to s 7(a)(ii) of the Residential Tenancies Act 1975 Q there was implied in the tenancy agreement between the appellant and the respondent's parents an obligation on the part of the appellant to provide and, during the tenancy, maintain the premises in good tenantable repair and in a condition fit for human habitation. The better view, as Gummow J explains in his judgment, is that that obligation was imposed to the exclusion of any similar obligation under s 106 of the Property Law Act 1974 Q. No doubt that obligation was sufficient to justify the relationship between the respondent, as a member of her parents' household, and the appellant being regarded as sufficiently proximate to give rise to a duty of care. However, that duty of care was that which arises under the ordinary principles of the law of negligence, namely, a duty to take reasonable care to avoid foreseeable risk of injury to the respondent. The nature and extent of the duty in the particular instance depends upon the circumstances of the case.

The respondent's first contention was that the appellant was under a duty to inspect the switch-box, or have it inspected by a qualified electrician, before the respondent's family went into possession of the premises. However, the evidence affords no foundation for the proposition that the exercise of reasonable care required the appellant to undertake personally, or to have undertaken by a qualified electrician, such an inspection. The major earth wire had become disconnected because of the weight of a tangled nest of wires upon it. There was no evidence of how or when the nest of wires came into existence or when the disconnection occurred. There was no indication of the absence of the neutral link before the accident. It only gave rise to a problem as a result of the negligence of the electrical contractor. The findings of fact of the trial judge were against the respondent on this point. Speaking of the absence of the neutral link, he said:

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

However, the second aspect of the respondent's case in negligence against the appellant was that the appellant's duty to take reasonable care in the repair of the stove was not one that could be discharged by engaging a qualified contractor to perform the task. It was, the respondent argued, a personal or non-delegable duty so that it became in effect a duty to ensure that reasonable care was taken. The result was, the respondent contended, that the appellant was liable for the electrical contractor's negligence.

The various categories of case in which it has been held that there was a non-delegable duty of care were analysed by Mason J in Kondis v State Transport Authority [68] in a judgment with which Deane J and I agreed. The categories identified were those of adjoining owners of land in relation to work threatening support or common walls; hospital and patient; school authority and pupil; and employer and employee in relation to a safe system of work. Mason J concluded that the more stringent duty does not arise unless a special relationship exists between the parties such that 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 [69] . In Burnie Port Authority v General Jones Pty Ltd [70] it was pointed out that to identify the common element in the cases as the undertaking of care, supervision or control or the assumption of particular responsibility is to view the relationship from the perspective of the person upon whom the duty is cast. Viewed from the perspective of the person to whom the duty is owed, the relationship is marked by special dependence or vulnerability on the part of that person.

1. (1984) 154 CLR 672. 2. Kondis (1984) 154 CLR 672 at 687 3. (1994) 179 CLR 520 at 551.

That is consistent with the observation of Mason J in Kondis [71] that in the case of the relationship of employer and employee, where the duty of the employer to provide a safe system of work is non-delegable, the employer has the sole control over the system to which he subjects the employee and the employee must put up with it. In those circumstances, Mason J observed, it is reasonable that the employer should bear the consequences if he requires the employee to work according to an unsafe system. However, Mason J was unable to see as strong reasons for reaching a similar conclusion in the case of an occupier of premises and an invitee upon those premises. He commented [72] :

It is not immediately obvious that it is appropriate to impose liability on the occupier of a house for injury caused to an invitee by the negligence of an independent contractor, eg, in making or repairing an electrical installation carelessly, when it is reasonable for the occupier to rely on the reputed competence of the contractor in a field in which the occupier has no expert knowledge. 1. (1984) 154 CLR 672 at 687-688. 2. Kondis (1984) 154 CLR 672 at 688See also Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550

The doubt which Mason J expressed that the relationship of occupier and invitee imposes on the occupier a non-delegable duty to take care must be the more when reference is had to Pickard v Smith [73] , the case which is said to be the origin of the concept of a non-delegable duty of care. In that case, the decision was based primarily upon the proposition that the employment of a competent contractor does not discharge a duty to take care where the act which occasions the injury is the one which the contractor was employed to do [74] . It is upon that basis that a number of authorities upon the non-delegability of a duty of care were decided - particularly the building cases involving the removal of support such as Bower v Peate [75] and Dalton v Angus [76] . But the rule does not suggest any good reason why the more stringent duty of care should be cast upon an occupier generally, particularly when in this country the duty of an occupier of premises to take care is now expressed in terms of the ordinary law of negligence. It is a duty on his or her part to take reasonable care to avoid foreseeable risk of injury to a lawful entrant upon the premises [77] . It is difficult to see why the duty expressed in that way should be non-delegable except in special circumstances such as were identified in Burnie Port Authority v General Jones Pty Ltd [78] .

1. (1861) 10 CB (NS) 470 [142 ER 535]. 2. Pickard v Smith (1861) 10 CB(NS) 470 at 480 [142 ER 535 at 539]. 3. (1876) 1 QBD 321. 4. (1881) 6 AC 740. 5. See Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488 6. (1994) 179 CLR 520.

Of course, the rule laid down in Pickard v Smith (that a duty to take care is personal or non-delegable where the act which occasions the injury is the very one which the contractor was employed to do) was expanded in that case "by a parity of reasoning, to cases in which the contractor is intrusted with the performance of a duty incumbent upon his employer, and neglects its fulfilment, whereby an injury is occasioned" [79] . It is this aspect of the rule laid down in Pickard v Smith which has led to the imposition of the further requirement of control or assumption of responsibility on the one hand and vulnerability on the other, in order to contain the concept of the non-delegable duty of care within appropriate limits.

1. Pickard v Smith (1861) 10 CB(NS) 470 at 480 [142 ER 535 at 539].

The duty of a landlord to exercise due care in maintaining premises in a state of repair is not of a kind which suggests that the duty is non-delegable. If control is the touchstone, then it may be observed that it must mean control of the premises rather than control over the person as in the case of an employer's relationship with his employee. The control of a landlord over the premises is limited in two respects. First, save to the extent that he exercises his right to enter and inspect [80] , he is dependent upon the tenant to draw defects to his attention. Secondly, where the safety of the premises depends upon work which must be entrusted to persons possessing special skills, as in the present case, there is no real element of control on the part of the landlord over the manner in which the work is to be done. Both the landlord and those occupying the premises are equally dependent upon the contractor for the exercise of due skill and care and, provided that a qualified contractor whose competency the landlord has no reason to doubt is engaged, it is not apparent that the landlord should bear personal responsibility for the contractor's negligence.

1. See Residential Tenancies Act 1975 Q, s 8(1)(i).

Moreover, where an occupier, who exercises a greater degree of control over the premises than does a landlord, has no more than a duty to take reasonable care to avoid risk of injury to persons lawfully on the premises, it would be anomalous, to say the least, to impose a more stringent duty upon the landlord.

If hazardous activities were carried out upon the premises, the situation would be different. If the hazardous activities were introduced on to the premises by the landlord, he would, in introducing them, have control, and upon the ordinary principles of the law of negligence a non-delegable duty of care in relation to those activities would be imposed upon him [81] . The duty would not arise out of the relationship of landlord and occupier, but out of the nature of the activities. It is not suggested that the supply of electricity to domestic premises constitutes a hazardous activity.

1. See Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 552-554

For these reasons I am unable to conclude that the appellant owed to the respondent a personal or non-delegable duty to take care. The appellant's duty to take care in relation to the repair of the stove was discharged by the engagement of a qualified electrical contractor.

It follows that the appeal must succeed. I agree with the orders proposed by Kirby J.

The circumstances giving rise to this appeal are detailed in other judgments. Some limited reference to those circumstances will be necessary.

The appellant conceded that it owed a duty of care to the respondent. The nature and content of that duty, as conceded, remained ill defined. Certainly the appellant must be taken to have accepted what was said by King CJ in Parker v Housing Trust [82] :

I am satisfied that the supposed rule, for which Cavalier v Pope [83] is regarded as authority, that a lessor is not under a duty of care to persons who may suffer injury on the demised premises by reason of the lessor's failure to comply with a covenant with the lessee to effect repairs or to keep the premises in repair, is inconsistent in principle with the modern doctrine of liability for negligence as it has developed since Donoghue v Stevenson [84] . That being so, I do not think that this Court would be justified in following the decision of the House of Lords, thereby imposing on the parties a result which the Court would consider to be incorrect. I would therefore hold that there is no rule of law precluding the existence of a duty of care in the lessor if on the ordinary principles of the law of negligence the facts are such as to give rise to such a duty. 1. (1986) 41 SASR 493 at 516-517. 2. [1906] AC 428. 3. [1932] AC 562.

I am satisfied, for the reasons given by Gummow J, that neither the Property Law Act 1974 Q nor the Residential Tenancies Act 1975 Q provides a cause of action upon which the respondent might recover damages against the appellant. That is not to say that those enactments are irrelevant to the common law duty of care which the appellant owed to the respondent. More is said about this aspect later in these reasons.

There were two electrical defects which played a part in the shock which the respondent received and which left her with such serious disabilities. The first, though not in time, was the failure by the electrical contractor in repairing the stove to ensure that the earth wire in the stove could not come into contact with the active wire in the stove. This unquestionably constituted negligence on the contractor's part for which he was held liable. He has not challenged the judgment against him.

The second defect arose because the major earth wire was not properly connected to a link with the neutral wire in the switch box, with the result that when the active wire came into contact with the earth wire in the stove a fuse in the switch box did not "blow". The excess electricity was channelled through the major earth wire to water pipes where it was to be conducted through the ground to another neutral wire in an external power pole. Because the ground where the earth wire was located was a poor conductor, the electricity did not escape but remained in the water pipes. In consequence, when the respondent in her bare feet on wet ground grasped an outside tap she was electrocuted.

The appellant bought the premises in July 1984. At that time, it seems, the North Queensland Electricity Board (the Board) inspected and passed the premises which remained unoccupied until 12 December 1986 when the Harris family went into possession. Mr and Mrs Harris were the tenants. Earlier, in November 1986 the appellant's electrical contractor had checked and repaired the refrigerator and stove. On 2 June 1987 an element in the stove was found not to be working properly. Mrs Harris spoke to someone in authority at the appellant's office who authorised Mr Briggs, its usual electrical contractor, to examine the stove and give a quote for repairs. Mr Briggs reported to the appellant which authorised him to proceed with the work. The accident occurred on 4 June 1987 after the work had been done.

The major earth wire had lost contact with the neutral wire or link through the weight of a nest of tangled wires. There was no evidence to establish when or by whom the work which resulted in the tangle of wires was carried out. Clearly it was some time before the accident. It may even have been before the appellant bought the premises.

In terms of common law negligence, two possible approaches were open to the respondent. One was to assert a failure on the part of the appellant to have the electrical system inspected before the family went into possession. The other was to allege a failure on the part of the appellant to ensure that the contractor exercised reasonable care in repairing the stove.

There are real difficulties in the way of the respondent making good a case based upon a failure by the appellant to inspect the switch box before she and her family took possession. Indeed none of the judges in the Court of Appeal found in her favour on that basis [85] . The difficulties are in part evidentiary. There was no evidence to establish when the earth wire became disconnected. It can hardly be claimed that the appellant owed a duty to carry out regular inspections. Furthermore the disconnection of the earth wire only gave rise to a problem because of the negligence of the contractor.

1. Harris v Northern Sandblasting Pty Ltd [1995] AustTorts Rep ¶81-365.

As to the other approach, the respondent could not succeed unless the duty of care owed by the appellant in respect of the defective stove was a non-delegable duty. The appellant engaged a qualified electrician to carry out the work. In respect of the failure to do the work properly the respondent must show that this was not enough. She must show that the appellant's duty extended to ensuring that the work was done with reasonable skill and care.

In the Supreme Court of Queensland it was only Fitzgerald P who would have held the appellant liable at common law for breach of a non-delegable duty. He did so first by acknowledging the correctness of what had been said in Parker v Housing Trust and then by the application of what were described as proximity factors and policy considerations. By reference to these factors and considerations and in the light of recent decisions of this Court, Fitzgerald P held that the appellant owed a special responsibility to the respondent to ensure that reasonable care was taken by the electrician in repairing the stove. That responsibility was not met and the appellant was liable to the respondent. I reach the same conclusion by much the same path.

The starting point for this conclusion is the existence of a general duty owed by the appellant to the respondent to take reasonable care to protect her from injury in the carrying out of the repair work on the stove. While accepting the existence of such a duty, the appellant contended that it had discharged the duty by engaging a licensed electrician. In support of that contention the appellant relied upon s 322 of the Electricity Act 1976 Q which prohibits anyone who is not the holder of a certificate of competency or a permit from doing electrical work. On what footing, it asks, can it be held liable for work which it could not do itself and which it did through a person qualified and permitted to do the work? That person was an independent contractor, not an employee of the appellant for whose negligence the appellant would be vicariously liable.

There has been criticism of the concept of a non-delegable duty in the law of tort [86] . And there has been criticism of the expression itself on the footing that one cannot delegate a duty imposed by law; rather the question is whether the duty is personal or whether it can be discharged by engaging someone else to perform what has to be done [87] . There is force in these criticisms but the concept is now part of the law as the expression is part of its vocabulary. It is the operation of the concept in the circumstances of the present appeal that is critical.

1. See, eg, Williams, Liability for Independent Contractors [1956] Cambridge Law Journal 180. 2. See Swanton, Non-delegable Duties: Liability for the Negligence of Independent Contractors, Journal of Contract Law vol 4 (1991) 183, at pp 187-188.

In Burnie Port Authority v General Jones Pty Ltd [88] Mason CJ, Deane, Dawson, Toohey and Gaudron JJ adopted a passage in the judgment of Mason J in Kondis v State Transport Authority [89] where his Honour identified some of the principal categories of case in which the duty to take reasonable care under the ordinary law of negligence is non-delegable and said that the common element in those cases was that:

the person on whom [the duty] 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. After referring to this passage, the majority said [90] : It will be convenient to refer to that common element as "the central element of control". Viewed from the perspective of the person to whom the duty is owed, the relationship of proximity giving rise to the non-delegable duty of care in such cases is marked by special dependence or vulnerability on the part of that person. 1. (1994) 179 CLR 520 at 550-551. 2. (1984) 154 CLR 672 at 687. 3. Burnie Port Authority (1994) 179 CLR 520 at 551.

The passage from the judgment of the majority in Burnie relates assumption of responsibility to special dependence or vulnerability, though not in a way that confines responsibility to those relationships. Certainly the presence of one or other points to an assumption of responsibility and it is the assumption of responsibility which imposes on a person a personal, that is non-delegable, duty of care. Foreseeability itself will not generate this special duty of care. It is "the relationship of proximity giving rise to the non-delegable duty of care".

In Bryan v Maloney , where the issue was the duty of care owed by the builder of a house to a subsequent purchaser, Mason CJ, Deane and Gaudron JJ said [91] :

[T]he question whether the requisite relationship of proximity exists in a particular category of case is more likely to be unresolved by previous binding authority with the consequence that the "notion of proximity is of vital importance". (footnote omitted) 1. Bryan v Maloney (1995) 182 CLR 609 at 618

In Hill v Van Erp , where a solicitor was held liable in negligence to a beneficiary under a will, I said of proximity [92] :

Attention is focused on established categories in which a duty of care has been held to exist; analogies are then drawn and policy considerations examined in order to determine whether the law should recognise a further category, whether that be seen as a new one or an extension of an old one. Much the same approach is demanded here because of the situations in which a personal responsibility has been held to exist. 1. Hill v Van Erp (1997) 188 CLR 159 at 189

In Kondis [93] Mason J identified some of those situations: hospitals, school authorities, employers, and possibly invitors [94] . He also referred to cases in which a person has been held liable for damage caused through the interference with the rights of an adjoining landowner due to the negligence of an independent contractor [95] . His Honour then said [96] : "The decision in Meyers v Easton [97] appears to rest on a slightly different footing." In that case a landlord had, at the solicitation of his tenant, undertaken to renew the roof of his house. Stawell CJ said [98] :

Where one person becomes liable to perform, or undertakes the performance of, a duty to another, it is quite immaterial whether he performs the duty himself or employs an agent, or an independent contractor to perform it. The liability for the proper performance of the duty, adheres to the person who undertook it; he cannot get rid of it. Stawell CJ's statement was an echo of what had been said by Blackburn J in Mersey Docks and Harbour Board v Gibbs [99] who in turn adopted the language of Williams J in Pickard v Smith [100] . Williams J said that "no one can be made liable for an act or breach of duty, unless it be traceable to himself or his servant or servants in the course of his or their employment". But, he continued: That rule is, however, inapplicable to cases in which the contractor is intrusted with the performance of a duty incumbent upon his employer, and neglects its fulfilment, whereby an injury is occasioned. The language is consistent with the assumption of a particular responsibility referred to in Kondis and in Burnie . In Burnie that responsibility was held to arise from the central element of control exercised by the defendant. 1. (1984) 154 CLR 672 at 679-681, 687. 2. For an examination of these and other particular relationships, see Balkin and Davis, Law of Torts, 2nd ed (1996), pp 752-757. 3. Bower v Peate (1876) 1 QBD 321 Dalton v Angus (1881) 6 AppCas 740; Johns v Delaney (1890) 16 VLR 729 4. Kondis (1984) 154 CLR 672 at 685 5. (1878) 4 VLR 283. 6. Meyers v Easton (1878) 4 VLR 283 at 284 7. (1866) LR, 1E & I Ap 93 at 114; 35 LJ (Ex) 225 at 232-233. 8. (1861) 10 CB (NS) 470 at 480 [142 ER 535 at 539].

In the present case the appellant undertook to have the stove repaired and engaged an electrician for that purpose. There is an analogy with Meyers v Easton . Unless the repairs were carried out with reasonable care and skill, there was a risk of serious injury, even death, to the occupants of the premises. That risk was reasonably foreseeable. "In the realm of negligence, causation is essentially a question of fact, to be resolved as a matter of common sense." [101] The negligence of the contractor was clearly a cause of the injury to the respondent.

1. Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 412-413, per Mason CJ, Deane and Toohey JJ.

It is true that the appellant was forbidden by law to do any of the work itself, other than through a licensed electrician. But that is no answer to the respondent's claim if there was a personal duty of care on the appellant. The prohibition applied equally to the occupiers. In any event a statutory obligation to employ a licensed electrician to effect electrical work does not modify a personal duty of care, just as in the case of an employer's duty to provide safe premises and plant for employees. Importantly, by statute there was implied in the tenancy agreement an obligation on the landlord to "maintain the dwelling-house in good tenantable repair and in a condition fit for human habitation" [102] . And in so far as the arrangement constituted a short term lease, there was an obligation on the lessor implied by statute to maintain the premises "in a condition reasonably fit for human habitation" [103] .

1. Residential Tenancies Act 1975 Q, s 7(a)(ii). 2. Property Law Act 1974 Q, s 106(1)(a).

The relationship of proximity in the present case is marked by a number of features. They are summed up in the judgment of Fitzgerald P in the following way [104] :

Material factors in the present case (in addition to the relationship between the appellant and the respondent) are:

(a) the respondent let the dwelling-house, as such, for reward;

(b) the dwelling-house was let for immediate occupation as a family home;

(c) the appellant is an infant member of the tenant's family;

(d) the respondent had obligations with respect to the premises under the Residential Tenancies Act;

(f) the defect in the earthing safety-system was readily ascertainable;

(g) there was no matter or circumstance which might have indicated to the respondent, or the appellant or her family, that there was a risk that the earthing safety-system was not functioning properly;

(h) the respondent did not cause the earthing safety-system to be checked;

(i) the fault in the stove resulted from the negligence of the respondent's contractor;

(j) there was no matter or circumstance which might have indicated to the respondent, or the appellant or her family, that there was a risk that the stove was defective or unsafe.

1. Harris [1995] AustTorts Rep ¶81-365 at 62,728. The appellant in the Court of Appeal is the present respondent. The respondent in the Court of Appeal is the present appellant.

The existence of these features cannot be questioned. They point to what the majority in Burnie referred to as "the central element of control" in the appellant and a special dependence or vulnerability on the part of the respondent, such as to give rise to an assumption of responsibility on the part of the appellant. It is that assumption of responsibility which identifies a duty of care on the part of the appellant which it could not discharge simply by the engagement of an independent contractor to do the work. In Burnie , speaking of the relationship of proximity and the position of the respondent, the majority said [105] :

He or she is specially dependent upon the person in control of the premises to ensure that reasonable precautions are in fact taken [The party in control] is "so placed in relation to [the other] person or his property as to assume a particular responsibility for his or its safety". Burnie was concerned with the liability of the owner of a building who retained an independent contractor to do work on extensions to the building. The work involved welding activities in close proximity to highly inflammable material. Due to the contractor's negligence sparks or molten material fell onto cartons containing the material. This caused a fire which spread to a part of the building occupied by a licensee. In the present case the respondent was not a person outside the premises in which the electrical work was done. But the cases have an important similarity in the high risk of damage to another if the work in question was done negligently. In any event the principles enunciated in Burnie point the way to the disposition of the present appeal [106] . 1. Burnie (1994) 179 CLR 520 at 551-552 2. In Mount Albert Borough Council v Johnson [1979] 2 NZLR 234, the Court of Appeal held that a developer which engaged a builder as an independent contractor to erect houses for it was under a non-delegable duty of care to a purchaser. And see Morton v Douglas Homes Ltd [1984] 2 NZLR 548 at 592cf Zumpano v Montagnese [1997] AustTorts Rep ¶81-406 at 63,717, where Brooking JA said he would "hesitate to adopt the approach taken" in Mount Albert Borough Council .

Fitzgerald P, having referred to relevant authorities, said [107] : "Ultimately, this case must be decided by balancing, or choosing between, competing policy considerations." To some extent this was an echo of what was said by Mason CJ, Deane and Gaudron JJ in Bryan v Maloney [108] :

Necessarily, the resolution of that question requires the articulation of both the factual components of the relevant category of relationship and the identification of any applicable policy considerations. 1. Harris [1995] AustTorts Rep ¶81-365 at 62,734. 2. (1995) 182 CLR 609 at 619. See also at 663-664, per Toohey J.

Fitzgerald P examined the policy considerations. He did so by asking the question "whether the loss should be left to be where it has fallen, or is there sufficient reason for transferring it from the [respondent] to the [appellant]" [109] . As he said, the practical necessity for landlords to rely upon apparently competent qualified contractors was not conclusive against the present respondent. The same may be said of any relationship involving a special responsibility to ensure that reasonable care is taken. The argument that liability in such a case as the present one would deter the commercial provision of low-cost housing for those in need of it, his Honour also held to be unpersuasive. The Residential Tenancies Act was in force for nearly twenty years. Section 7(a)(ii) imposed an obligation on a landlord to maintain a dwelling-house "in good tenantable repair and in a condition fit for human habitation". Fitzgerald P drew attention to the current legislation, the Residential Tenancies Act 1994 Q where the obligation of the lessor to maintain the premises in a reasonable state of repair has regard to "the age of, rent payable for, and expected life of, the premises" [110] . But as his Honour observed [111] : "While those provisions limit a landlord's obligations, they cannot be intended to derogate from a fundamental requirement of basic safety." In any event it is the 1974 Act which has relevance to the present proceedings.

1. Harris [1995] AustTorts Rep ¶81-365 at 62,734. 2. s 103(2)(c), (3)(a). 3. Harris [1995] AustTorts Rep ¶81-365 at 62,734.

In Bryan v Maloney a policy consideration which the majority treated as important was the concern to avoid the imposition of liability "in an indeterminate amount for an indeterminate time to an indeterminate class" [112] . Such a concern is not a telling consideration here; the class of persons to whom a special duty of care is owed is readily ascertainable.

1. Ultramares Corporation v Touche (1931) 255 NY 170 at 179[174 NE 441 at 444], per Chief Judge Cardozo.

For all these reasons, I would hold the appellant liable to the respondent. It follows that the appeal must be dismissed.

The facts are set out in other judgments. They are repeated to some extent to make it clear that the tragic accident with which this appeal is concerned was the result of the coincidence of two electrical defects in the rented house in which the respondent lived with her family. The first defect was in the neutral link in the switchbox. The second was associated with the electrical stove installed in the home.

The defective neutral link was the result of a disconnected earth wire. It became disconnected because it was in a nest of tangled wires, the weight of which resulted in it being pulled from or working loose in its socket. It is not known when or by whom the work resulting in the tangle of wires was carried out. However, the trial judge found that, had there been a visual inspection of the switchbox before the respondent and her family entered into occupation, it was probable that the tangle or the defect, if that is what it then was, would have been seen and corrected. That finding was treated in this Court as a finding, on the balance of probabilities, that it would, in fact, have been seen and corrected. The trial judge also found that, had that occurred, the accident would not have happened.

The circumstances relating to the condition of the stove are not in issue. It was repaired by Mr Briggs. In carrying out that repair, he failed to ensure that the stove's earth wire could not come into contact with the active wire. Had the neutral link been functioning properly, however, contact between the earth and the active wires would simply have resulted in a blown fuse at the switchbox. Instead and because of the defective neutral link, there was a failure of the earthing system with the result that the water-pipes became electrified. Thus it was that the respondent suffered severe injury when turning off the garden tap.

The respondent obtained a verdict against Mr Briggs for his negligence in repairing the stove. The only question in this appeal is whether, as found by the Court of Appeal of the Supreme Court of Queensland, she is also entitled to a verdict against the appellant company (the landlord), which owned and rented to the respondent's parents, the premises in which the accident occurred [113] .

1. It is not clear whether one or both parents were parties to the tenancy agreement.

Four matters were advanced in this Court on behalf of the respondent. First, it was argued that she was entitled to a verdict against the landlord because of its breach of a common law duty of care to have the electrical system visually inspected prior to granting the lease [114] . It was then argued that the landlord had breached a common law duty to ensure that Mr Briggs exercised care in repairing the stove. Additionally, it was put that there was a breach by the landlord of separate statutory duties arising, respectively, under the Property Law Act 1974 Q and the Residential Tenancies Act 1975 Q [115] .

1. This was raised pursuant to notice of contention filed on behalf of the respondent. 2. Note that par 3f of the plaintiff's original statement of claim alleged breach of statutory duty only in respect of the Residential Tenancies Act 1975 Q. That issue was raised in this Court pursuant to notice of contention. By order of the Court of Appeal, the plaintiff was granted leave to amend her statement of claim by inserting in par 3f the words "or alternatively s 106(1)(a) of the Property Law Act 1974."

It is convenient at this stage to note the terms of the provisions which, it is said, imposed statutory duties on the landlord and conferred corresponding rights on the respondent. First, s 106(1) of the Property Law Act 1974 provides that:

In a lease of premises for a term of 3 years or for any less period there is an obligation -

(a) on the part of the lessor, in the case of a lease of premises for the purpose or principally for the purpose of human habitation, to provide and maintain the premises or such part as is let for such purpose in a condition reasonably fit for human habitation.

A similar obligation was cast on a landlord by s 7 of the Residential Tenancies Act 1975. That section relevantly provided [116] : Notwithstanding any agreement between a landlord and tenant, in every tenancy agreement entered into after the commencement of this Act there shall be implied obligations -

(ii) to provide and, during the tenancy, maintain the dwelling-house in a condition fit for human habitation.

1. The Residential Tenancies Act 1975 was repealed and replaced by the Residential Tenancies Act 1994 (No 86), s 342.

The statutory duties upon which the respondent relies can be traced to legislation enacted in the United Kingdom at or near the turn of the century [117] . That legislation was designed to alleviate the consequences of judicial decisions to the effect that, save for contractual obligations [118] , a landlord was not liable for injuries resulting from the dangerous state of leased premises [119] . Moreover it was then settled law that, even if there was a contractual obligation, it could only operate to benefit the tenant, not members of the tenant's household who were not parties to the lease [120] .

1. 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.

It was not argued that it is still the law that a landlord owes no duty of care with respect to leased premises. Rather, it was accepted that, so far as concerns residential premises, a landlord has a duty of care to members of a tenant's household as identified in Parker v South Australian Housing Trust , namely, "to exercise care for their safety by means of reasonable measures to keep the premises in a safe state of repair" [121] . However, it was argued that there was no breach of the duty in this case. In that regard, it was put in relation to the neutral link that the duty does not extend to defects the existence of which is not known to the landlord. And it was put in relation to known electrical defects, as in the case of the stove, that the duty is confined to obtaining the services of an apparently competent electrician.

So far as concerns the statutory provisions upon which the respondent relies, the primary argument advanced on behalf of the landlord was that they give rise to contractual obligations which operate to benefit the tenant only, not members of his or her household. It was also put that, so far as the issues in this case are concerned, the content of those obligations is no different from the content of the common law duty of care and, for the reasons put in relation to that duty, there was no breach of either obligation. Finally, it was put on behalf of the landlord, that the only obligation involved in this case is that imposed by s 7(a) of the Residential Tenancies Act 1975.

It cannot, in my view, be doubted that the law has now developed to the point that, so far as concerns premises leased for residential purposes, the relationship between a landlord and those who constitute a tenant's household is one that gives rise to a duty on the part of the landlord to take reasonable care for their safety by putting and keeping the premises in a safe state of repair. To hold otherwise would be inconsistent with the principles of negligence articulated in Donoghue v Stevenson [122] . And once it is accepted, as it has been, that a contractual relationship does not, of itself, exclude a common law duty of care [123] , it follows that the same duty of care is owed to a tenant. It may be, however, that, in a given case, the lease limits or excludes recovery by the tenant for breach of that duty [124] . At least that is so unless some statutory provision renders a stipulation of that kind void or of no effect.

1. [1932] AC 562. See in this regard Greene v Chelsea Borough Council [1954] 2 QB 127 at 138, per Denning LJ; Rimmer v Liverpool City Council [1985] QB 1 at 8-9and the discussion of Windeyer J in Voli v Inglewood Shire Council (1963) 110 CLR 74 at 89-92 2. See Bryan v Maloney (1995) 182 CLR 609 at 621-622, per Mason CJ, Deane and Gaudron JJ; Hill v Van Erp (1997) 188 CLR 159 at 167-168, per Brennan CJ; at 181-182, per Dawson J; at 195-197, per Gaudron J. See also Voli v Inglewood Shire Council (1963) 110 CLR 74 at 84-85, per Windeyer J; Bowen v Paramount Builders [1977] 1 NZLR 394 at 407, per Richmond P; at 419, per Woodhouse J; Central Trust Co v Rafuse [1986] 2 SCR 147 at 204-206(1986) 31 DLR(4th) 481 at 521-522; Winnipeg Condominium Corporation No 36 v Bird Construction Co (1995) 121 DLR(4th) 193 at 205, 217-218. 3. See by way of analogy, Bryan v Maloney (1995) 182 CLR 609 at 621-622, per Mason CJ, Deane and Gaudron JJ; Hill v Van Erp (1997) 188 CLR 159 at 196-197, per Gaudron J; Central Trust Co v Rafuse [1986] 2 SCR 147 at 206(1986) 31 DLR(4th) 481 at 522.

Whether because of decisions which held that a landlord was not liable in negligence for unsafe premises or because of legislation imposing statutory duties of the kind on which the respondent relies in this case, there has been no systematic development of the law of negligence in its application to landlords. Thus, neither the content nor the precise nature of the duty owed by a landlord can be discovered from case law. It is, however, possible to say, a priori, that a landlord is obliged to warn a tenant and members of the tenant's household of concealed dangers of which he or she is aware. That aside, other aspects of the duty can properly be ascertained only by analysis of the relevant features of the relationship between landlord, on the one hand, and tenant and members of the tenant's household, on the other.

The relationship between landlord and members of a tenant's household, including the tenant, is unusual in that the features which bear on the question of liability for negligence are not constant throughout. If the position is considered at or immediately prior to the commencement of a lease, the relationship is not unlike that of occupier and invitee in that the state of the premises is known to, or can be ascertained by the landlord. Moreover and as in the case of an occupier [125] the landlord is in a position of control in relation to the premises. In particular, the landlord is in a position to control the state in which the premises are let. On the other hand, the members of the tenant's household have no such control. And, they can ascertain the state of the premises only if and to the extent that the landlord so permits.

1. As to the significance of control in relation to occupier's liability, see Wheat v E Lacon & Co Ltd [1966] AC 552 at 578-579, per Lord Denning; Hanson v Matthew Bros Contractors Ltd (1990) 55 SASR 183 at 188, per Cox J.

If an opportunity is afforded to a tenant or to members of his or her household to inspect premises prior to lease, the relationship at that point is, in law, that of occupier and invitee. And, save to the extent that inspection reveals some danger associated with those premises, the features which mark that relationship continue at least until the tenancy commences. In particular, the landlord is, until then, in a position to ascertain and control the state of the premises; the tenant and members of his or her household have no such ability and are dependent upon the landlord for their safety, save to the extent that they become aware of existing dangers.

Once a tenancy commences, there is an important change in the features of the relationship which bear on the question of a landlord's liability in negligence. Generally speaking, it is the tenant who is then in a position to ascertain and control the state of the premises. And again generally speaking, if defects develop during the tenancy, the landlord will become aware of them only if informed of their existence by the tenant or by members of the tenant's household.

Given the features which attend the relationship between landlord and members of the tenant's household, including the tenant, once a lease has commenced, it seems to me that, in relation to defects which are not present at the commencement of a lease but develop during its term, a landlord's duty extends only to remedying those defects of which he or she is or ought to be aware. In practical terms, that may mean that the duty is confined to remedying those defects which are notified by the tenant or by members of his or her household. However, different considerations apply in the case of defects which are present at the beginning of a lease.

Having regard to the control which, at the beginning of a lease, a landlord exercises over the state of the premises and, also, the extent to which members of the household are then dependent upon the landlord for their safety, a landlord's duty at that point cannot, in my view, be limited to defects of which he or she is aware. Rather, and because of the vulnerability of the tenant and members of his or her household, the duty extends to defects discoverable on inspection. Moreover, that vulnerability and the landlord's commercial interest in the tenancy necessitate the conclusion that the duty extends to defects and potential defects which pose special dangers (for example, defects in electrical wiring or gas connections) and which, ordinarily, are discoverable on inspection only by persons exercising special skill or expertise.

To say that the duty of a landlord with respect to residential premises extends to those defects which exist at the commencement of the lease and which are discoverable on inspection is to identify a duty to inspect and, also, a duty to remedy those defects which give rise to a foreseeable risk of injury. And to the extent that there may be defects which pose a special danger and which are discoverable only by persons with special skill or knowledge, it is to identify a duty to have inspections carried out by suitably qualified persons. And if defects or potential defects which give rise to a foreseeable risk of injury are then discovered, the duty extends to their rectification.

It is clear from the factual findings of the trial judge that the switchbox was not inspected by a qualified electrician before the respondent and her family took up residence in their rented home. It follows that there was a breach of the duty of care owed by the landlord to the respondent. It is not in issue either that inspection would have resulted in the discovery and correction of the problem associated with the neutral link or that the defective neutral link was causative of the respondent's injuries. The respondent is, thus, entitled to a verdict against the landlord as held by the Court of Appeal, albeit on an entirely different basis. Accordingly, the appeal must be dismissed.

Although the appeal must be dismissed, it is convenient to say something of the other issues involved. In particular, it is desirable, in view of its importance in other judgments, that I express my view on the question whether the duty owed by a landlord with respect to dangerous electrical defects is discharged by engaging an apparently competent electrician or whether there is a special non-delegable duty to ensure that the electrician exercises reasonable care and skill in remedying those defects.

It is now recognised that relationships which give rise to a special non-delegable duty to ensure that care is taken are marked by the central features of control, on the one hand, and vulnerability, on the other [126] . The relationship between a hospital and patient [127] , between school authority and pupils [128] , and employer and employee, in relation to the provision of a safe system of work [129] , are examples. Control is also a central feature of the relationship that exists between occupier and invitee [130] . And as already indicated, because a landlord is in a position to control the state in which premises are leased, he or she is, at the beginning of a lease, in a position analogous to that of an occupier.

1. See Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550-551 2. See Gold v Essex County Council [1942] 2 KB 293 at 304, per Lord Greene MR; at 305, per MacKinnon LJ; at 309, per Goddard LJ; Cassidy v Ministry of Health [1951] 2 KB 343 at 351, per Somervell LJ; at 358, per Singleton LJ; at 365, per Denning LJ; Roe v Minister of Health [1954] 2 QB 66 at 82, per Denning LJ; at 91, per Morris LJ; Toronto General Hospital v Matthews [1972] SCR 435 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 603-605, per Samuels JA. See also Kondis v State Transport Authority (1984) 154 CLR 672 at 685-686, per Mason J. 3. See Ramsay v Larsen (1964) 111 CLR 16 at 28, per Kitto J; The Commonwealth v Introvigne (1982) 150 CLR 258 at 269-271, per Mason J; at 274-275, per Murphy J; at 279-281, per Brennan J. See also Kondis v State Transport Authority (1984) 154 CLR 672 at 685-686, per Mason J. 4. See Wilsons & Clyde Coal Co v English [1938] AC 57 at 65, per Lord Thankerton; at 78, 83-84, per Lord Wright; Kondis v State Transport Authority (1984) 154 CLR 672 at 687-688, per Mason J. 5. See fn 158.

Seemingly, it was because of its central feature of control that, in Kondis v State Transport Authority [131] , Mason J adverted to the possibility that the relationship of occupier and invitee gives rise to a special non-delegable duty of care "to see that reasonable care and skill is exercised in making premises safe." [132] That possibility was again adverted to in Burnie Port Authority v General Jones Pty Ltd , but not further pursued [133] . In Kondis , however, Mason J queried the position of an occupier with respect to conditions arising from works carried out by persons with special skills or expertise, saying "[i]t is not immediately obvious that it is appropriate to impose liability for injury caused to an invitee by the negligence of an independent contractor, eg, in making or repairing an electrical installation carelessly, when it is reasonable for the occupier to rely on the reputed competence of the contractor in a field in which the occupier has no expert knowledge." [134]

1. (1984) 154 CLR 672 at 688, per Mason J. 2. Kondis (1984) 154 CLR 672 at 686, referring to Thomson v Cremin [1956] 1 WLR 103[1953] 2 All ER 1185 3. Burnie (1994) 179 CLR 520 at 550 4. Kondis v State Transport Authority (1984) 154 CLR 672 at 688, per Mason J.

There are two matters which tell against a non-delegable duty on the part either of an occupier or of a landlord with respect to electrical installations and the remedying of electrical defects. First, the law only imposes a duty to take steps which, in the circumstances, a reasonable person would take to prevent a foreseeable risk of injury [135] . It seems to me impossible to say that a reasonable occupier or landlord would ordinarily do more than seek the services of an apparently competent electrician to carry out electrical work. In this regard, it is sufficient to observe that, short of engaging a second electrician to check on the first, it is not apparent that there is any other precaution that might profitably be taken to guard against risk of injury as a result of carelessness on the part of an electrician.

1. See Hackshaw v Shaw (1984) 155 CLR 614 at 663, per Deane J; Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 487-488, per Mason, Wilson, Deane and Dawson JJ.

The second matter which tells against a duty to do more than engage an apparently competent electrician is that electrical work requires special skill and expertise. The very essence of work that requires skill and expertise is that the person engaged to carry out the work has control over that work, not the person on whose behalf it is carried out. In other relationships, notably those involving hospital and patient and employer and employee, the control involved is that exercised by one person in relation to the other and it is that control coupled with the special vulnerability of patients and employees that justifies the imposition of a non-delegable duty. And in the case of dangerous activities and substances, it is the occupier's control over the carrying out of those activities or the presence of those substances that justifies a special non-delegable duty of the kind identified in Burnie Port Authority [136] . However, the control which is decisive in the case of occupier and invitee and also, in the case of landlord and members of a tenant's household, is control over premises. And as a general rule, there is no control where the safety of premises depends on work which must be entrusted to a person possessed of special skills or expertise.

Subject to a qualification to which reference will shortly be made, the matters to which I have referred compel the conclusion that the duty owed by occupiers and landlords with respect to electrical installations and electrical defects is a duty to engage a competent electrician and not a non-delegable duty to ensure that the electrician exercises care and skill. The qualification is that different considerations apply in a case in which an occupier or landlord engages an electrician to carry out work on premises on which there are dangerous or potentially dangerous activities or substances. Depending on the nature of those activities or substances, the carrying out of electrical work may, in the circumstances, constitute a special danger such that there is a special relationship of proximity, characterised by a central element of control, on the one hand, and special dependence or vulnerability on the other, giving rise to a non-delegable duty of the kind recognised in Burnie Port Authority [137] .

The statutory provisions to which reference has already been made can be dealt with shortly. I agree with Gummow and Kirby JJ that neither provision can be construed as imposing absolute liability. It would be necessary for there to be a clear intention to that effect before either provision could be construed in that way. Neither their terms nor their context disclose any such intention. Rather the expression "reasonably fit for human habitation" in s 106(1)(a) of the Property Law Act 1974 indicates a duty to exercise reasonable care and skill in providing and maintaining premises in a safe state. And in the absence of a clear intention to the contrary, nothing more is indicated by the expression "fit for human habitation" in s 7 of the Residential Tenancies Act 1975. Thus, when properly construed, neither provision gives rise to an obligation which, for present purposes, is different from a landlord's common law duty of care.

I also agree with Gummow and Kirby JJ, that given their language and context, s 106(1)(a) of the Property Law Act 1974 and s 7 of the Residential Tenancies Act 1975 create contractual duties. However, I agree with Kirby J, for the reasons that his Honour gives, that, by s 55 of the Property Law Act 1974, a member of a tenant's household is entitled to the benefit of those provisions.

One other matter may conveniently be noted. Given that the obligations imposed, respectively, by s 106(1)(a) of the Property Law Act 1974 and by s 7 of the Residential Tenancies Act 1975 are, for practical purposes, identical, neither is inconsistent with or repugnant to the other. Thus, in my view, there is no need to treat one as applying to the exclusion of the other.

The first question in this appeal is whether a landlord's duty to take reasonable care to protect an occupant of rented premises from the dangers of a defective electrical stove which the landlord had undertaken to have repaired was discharged by hiring a licensed and apparently competent electrician to do the repair. If that question is answered in the negative, as I think it should be, it is unnecessary to deal with other questions in the appeal.

The appeal is brought by Northern Sandblasting Pty Ltd (the landlord) against an order of the Court of Appeal of the Supreme Court of Queensland. That Court set aside an order of the Supreme Court of Queensland (Derrington J) dismissing an action for damages for injuries brought against the landlord by Nicole Anne Harris (the plaintiff), then a child of nine. She sustained the injuries when she was electrocuted while attempting to turn off a garden tap in partly furnished premises which the landlord rented to her parents.

Two days before the plaintiff was injured on 4 June 1987, her mother informed the landlord that an electric stove in the premises was not working. The landlord agreed to have it repaired. He employed a licensed electrical contractor to carry out the work, but the contractor did the work negligently. He failed to take measures to prevent the active wire and the earth wire in the stove from making contact. That failure subsequently caused a short circuit of the stove wiring. As a result, electric current escaped. If the electrical switchbox on the premises had been working properly, the short circuit would have blown a fuse in the switchbox and rendered the stove safe. However, the switchbox was defective, and the stove and earth wire remained alive.

Unfortunately for the plaintiff, the earth wire connected to the house's water pipe system and then to the main water system. From there, escaped current could normally find its way through the ground to a metal peg near an external power pole in the street. The peg was connected to a neutral wire on the power pole and ought to have attracted and safely reintroduced the escaped current into the power supply system. At the same time, the additional flow of current which passed through the active wire should have blown a fuse in the switchbox and rendered the stove safe. However, on the day of the plaintiff's electrocution, the ground between the water pipes and the metal peg was a poor conductor of electricity. As a result, the escaped current did not travel very far from the water pipes. When the stove short circuited, the ground near the pipes became charged with electricity and the pipes and taps in the water system remained alive. When the plaintiff touched a tap in the yard, her body became a conductor. The current passed through her to the ground. She was very seriously injured.

The landlord conceded that it owed a duty to take reasonable care for the safety of the plaintiff while she lived in the premises. This concession was properly made. Under the early common law, the lessor of a dwelling-house made no implied promise that, at the time of letting, the house was reasonably fit for human habitation [138] . However, if the lease was for the letting of a furnished house, the lessor did impliedly promise the lessee that the house was fit for habitation [139] . Nevertheless, even in the case of furnished premises, there was no implied promise by the lessor that the house would remain reasonably fit for habitation [140] . Apart from the special case of the letting of furnished premises, therefore, a lessor was under no liability at common law for any defects in the premises existing at the commencement, or arising during the period, of a lease [141] . In Robbins v Jones [142] , Erle CJ said:

A landlord who lets a house in a dangerous state, is not liable to the tenant's customers or guests for accidents happening during the term; for, fraud apart, there is no law against letting a tumble-down house; and the tenant's remedy is upon his contract, if any. 1. Hart v Windsor (1843) 12 M& W 68 [152 ER 1114]. 2. Smith v Marrable (1843) 11 M& W 5 [152 ER 693]. 3. Sarson v Roberts [1895] 2 QB 395 at 397 4. Lane v Cox [1897] 1 QB 415 Cavalier v Pope [1906] AC 428 Donoghue v Stevenson [1932] AC 562 at 597 5. (1863) 15 CB (NS) 221 at 240 [143 ER 768 at 776].

The ancient common law rule was affirmed in Cavalier v Pope [143] where the House of Lords held that the wife of the tenant of a dilapidated house could not sue the landlord for damages for injury resulting from the state of the premises even though the landlord had contracted to repair the house and was in breach of his obligation. However, after the House of Lords gave its decision in Donoghue v Stevenson [144] , the decision in Cavalier v Pope seemed difficult, if not impossible, to justify. In Greene v Chelsea Borough Council [145] , Lord Denning said that Cavalier v Pope was "a relic" of an "outworn fallacy which must be kept in close confinement". In Greene , the Court of Appeal refused to apply Cavalier v Pope to a case of licensor and licensee, holding that the immunity of a lessor for defective premises only applied in a relationship which was strictly that of lessor and lessee.

1. [1906] AC 428. 2. [1932] AC 562. 3. [1954] 2 QB 127 at 138.

Subsequently, in Parker v South Australian Housing Trust [146] , the Full Court of the Supreme Court of South Australia refused to accept Cavalier v Pope as an authoritative decision [147] . King CJ said [148] :

I am satisfied that the supposed rule, for which Cavalier v Pope [149] is regarded as authority is inconsistent in principle with the modern doctrine of liability for negligence as it has developed since Donoghue v Stevenson [150] . That being so, I do not think that this Court would be justified in following the decision of the House of Lords, thereby imposing on the parties a result which the Court would consider to be incorrect. I would therefore hold that there is no rule of law precluding the existence of a duty of care in the lessor if on the ordinary principles of the law of negligence the facts are such as to give rise to such a duty. 1. (1986) 41 SASR 493. 2. Other jurisdictions have also refused to apply the old common law rules accepted in Cavalier: Sargent v Ross (1973) 308 A(2d) 528 (New Hampshire); Fleischmann v Grossman Holdings Ltd (1976) 16 OR(2d) 746 (Ontario); Siney v Corporation of Dublin [1980] IR 400(Ireland). 3. Parker (1986) 41 SASR 493 at 516-517 4. [1906] AC 428. 5. [1932] AC 562.

In the present case, the landlord accepted that this passage stated the law of Australia. It accepted therefore that it owed a general duty to the plaintiff to take reasonable care to protect her from injury if the electrical repair work on the stove "was not done properly". But the landlord contended that, having employed a licensed electrical contractor, it had discharged the duty that it owed to the plaintiff and could not be made vicariously liable for the contractor's tort. The landlord pointed out that, by reason of s 322 of the Electricity Act 1976 Q, it could not itself carry out the repair work because a person who is not the holder of a certificate of competency or permit, such as itself, is prohibited from doing any electrical work. Thus, the question arises as to whether a person can discharge a duty to take reasonable care for the safety of another person in respect of an activity which the law allows only a licensed person to carry out.

If the electrician had been an employee of the landlord, it would have been vicariously liable for the electrician's tort. But the electrical contractor was not an employee. He was an independent contractor. At common law, a person is not generally liable for the negligence of an independent contractor [151] unless the person has "directly authorised the doing of the act which amounts to a tort" [152] . The rationale for excluding liability for independent contractors is that the work which the contractor has agreed to do is not done as the representative of the employer. As Dixon J pointed out in Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd [153] : "[t]he independent contractor carries out his work, not as a representative but as a principal."

1. Quarman v Burnett (1840) 6 M& W 499 [151 ER 509]; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 43 2. Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 at 48, per Dixon J. 3. (1931) 46 CLR 41 at 48.

Nearly thirty years ago Professor Atiyah marshalled the arguments which would justify imposing liability on employers for the acts of independent contractors as well as employees [154] . Those arguments seem as convincing to me today as they did when his work was first published in 1967. However, counsel for the plaintiff did not invite the Court to re-examine the basis of the liability of an employer for the acts of an independent contractor. The question whether the common law should continue to draw a distinction between liability for the acts of employees and those of independent contractors must wait for another day.

1. Vicarious Liability in the Law of Torts (1967), pp 333-336.

Nevertheless, notwithstanding the general rule that an employer is not liable for the acts or torts of an independent contractor, the courts have often held an employer liable for such acts. In Bower v Peate [155] , Cockburn CJ said:

[A] man who orders a work to be executed, from which, in the natural course of things, injurious consequences to his neighbour must be expected to arise, unless means are adopted by which such consequences may be prevented, is bound to see to the doing of that which is necessary to prevent the mischief, and cannot relieve himself of his responsibility by employing some one else - whether it be the contractor employed to do the work from which the danger arises or some independent person - to do what is necessary to prevent the act he has ordered to be done from becoming wrongful. 1. (1876) 1 QBD 321 at 326.

In Dalton v Angus [156] , Lord Blackburn said the liability of employers for the acts of independent contractors rested on duty. His Lordship said [157] :

[A] person causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor. He may bargain with the contractor that he shall perform the duty and stipulate for an indemnity from him if it is not performed, but he cannot thereby relieve himself from liability to those injured by the failure to perform it. 1. (1881) 6 App Cas 740. 2. Dalton v Angus (1881) 6 AppCas 740 at 829.

Bower and Dalton were actions for nuisance in respect of the subsidence of land. Since nuisance is a tort of strict liability with exceptions, it is understandable that the law should develop so as to prevent the owner of land from avoiding the imposition of strict liability by the device of employing an independent contractor. But the statement of Lord Blackburn in Dalton has been applied in situations where the cause of action was not one of strict liability.

Thus, a hospital has a duty to exercise reasonable care in the treatment of a patient and cannot delegate the duty to other persons such as doctors or nurses [158] , an employer cannot delegate the duty of care which it owes to an employee [159] , and those who conduct a school cannot delegate the duty of care that they owe to their pupils [160] . This Court has also held that the occupier of a public hall is liable to invitees for the negligence of an architect who has failed to design a safe platform for the hall [161] . Recently in Burnie Port Authority v General Jones Pty Ltd [162] , the Court held that the owner of land who allows a dangerous substance to be brought on to the land or allows a dangerous activity to be performed on the land is under a duty to ensure that reasonable care is taken to guard persons from the danger and cannot delegate the discharge of that duty to others. In all these cases, therefore, the courts have held that the duty that the defendant owed to the plaintiff was a non-delegable, personal duty which could not be discharged by hiring a skilled person to perform it.

1. Collins v Hertfordshire County Council [1947] KB 598 Cassidy v Ministry of Health [1951] 2 KB 343 Roe v Minister of Health [1954] 2 QB 66 Samios v Repatriation Commission [1960] WAR 219 Toronto General Hospital v Matthews [1972] SCR 435 Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 2. Wilsons & Clyde Coal Co v English [1938] AC 57 Kondis v State Transport Authority (1984) 154 CLR 672 Stevens (1986) 160 CLR 16 McDermid v Nash Dredging Ltd [1987] AC 906 3. The Commonwealth v Introvigne (1982) 150 CLR 258 at 271 4. Voli v Inglewood Shire Council (1963) 110 CLR 74See also Francis v Cockrell [1870] LR 5QB 501; Maclenan v Segar [1917] 2 KB 325 Watson v George (1953) 89 CLR 409 Thomson v Cremin [1956] 1 WLR 103[1953] 2 All ER 1185 5. (1994) 179 CLR 520.

In Kondis v State Transport Authority [163] , Mason J explained the basis of decisions such as these as follows:

In these situations the 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. The explanation of the non-delegable duty cases given by Mason J in Kondis was approved by a majority of this Court in Burnie Port Authority [164] . Moreover, as Mason J pointed out in Kondis [165] , the effect of the doctrine of non-delegable, personal duty is that it substitutes "for the duty to take reasonable care a more stringent duty, a duty to ensure that reasonable care is taken". In my opinion, that doctrine applies to the facts of this case. 1. (1984) 154 CLR 672 at 687. 2. (1994) 179 CLR 520 at 550-552. 3. (1984) 154 CLR 672 at 686.

The landlord's duty to the plaintiff was a personal, non-delegable duty

The landlord had undertaken the repair of a defective household electrical appliance which, unless carried out with due care and skill, exposed those who resided on the premises to death or serious bodily injury. The safety of the residents of the premises was utterly dependent on the proper performance of that work. The plaintiff as a child was in a position of special dependence and vulnerability. Although the landlord was not the occupier of the premises, it had a duty to maintain the premises "in a condition reasonably fit for human habitation" [166] and a duty to "maintain the dwelling-house in good tenantable repair and in a condition fit for human habitation" [167] . In return for performing these duties, the landlord received rent. In these circumstances, the plaintiff and her parents were entitled to expect that a high degree of care would be exercised in carrying out the repair work.

1. Property Law Act 1974 Q, s 106(1)(a). 2. Residential Tenancies Act 1975 Q, s 7(a)(ii).

Even if, as the landlord contended, the duties of maintenance were contractual only and unenforceable by the plaintiff, they cannot be isolated from the group of factors that determine the standard of care that the landlord owed to those who, like the plaintiff, resided on the premises. In determining whether, upon the landlord undertaking to get the stove repaired, the plaintiff and her parents might reasonably expect that due care would be exercised in repairing the stove, every consideration that might affect the judgment of a reasonable person is relevant. Whether the landlord was or was not under an existing duty to make the stove reasonably fit for use was one of those considerations.

When all relevant factors are considered, the proper conclusion is that the landlord owed the plaintiff a personal, non-delegable duty of care because he undertook to have an electrical stove repaired in circumstances where the plaintiff and her parents might reasonably expect that due care would be exercised in repairing the stove. The present case cannot persuasively be distinguished from the holding in Burnie Port Authority that a landowner who allows a dangerous substance to be brought onto the land or who allows a dangerous activity to be performed on the land owes a non-delegable duty of care to persons who come on the land. Nor can it be persuasively distinguished from the holding of the House of Lords in Thomson v Cremin [168] that the owner of a ship who invites a stevedore's labourer to work on the ship owes a personal duty of care to that person and is liable for the negligence of a firm of shipwrights in fixing fittings to the ship. That being so, the landlord's duty to the plaintiff in this case was not merely a duty to take reasonable care; it was a duty to ensure that reasonable care for her safety was taken [169] .

1. [1956] 1 WLR 103; [1953] 2 All ER 1185. 2. Kondis (1984) 154 CLR 672 at 686

It is not to the point that under Queensland law repair of the stove could be carried out only by a licensed electrician [170] . The fact that that performance of a personal duty of care cannot be carried out by the person owing the duty but only by a skilled person has never been a ground for holding that the hiring of such a person discharges the duty [171] . Nor in principle can it make any difference that only a licensed person can perform the task that is the subject of the duty because the duty is a duty to ensure that reasonable care is taken. In discharging its personal duty to its employee to provide and maintain safe plant and equipment, for example, an employer is often required by law to employ licensed electricians to install or repair a particular piece of plant or equipment. But if an employee is injured because of the electrician's negligent installation or repair, the employer is in breach of the personal, non-delegable duty of care that it owes to the employee. Similarly, in the present case, the landlord's duty of care was not delegable to the electrical contractor or discharged by hiring him to repair the stove. When the contractor failed to take reasonable care to repair the stove, he not only committed a tort against the plaintiff but he also caused the landlord to breach the duty that it owed to the plaintiff.

1. Electricity Act 1976 Q, s 322. 2. See, eg, Gold v Essex County Council [1942] 2 KB 293 Cassidy [1951] 2 KB 343 Roe [1954] 2 QB 66

The facts are set out in the judgment of Kirby J. I agree, for the reasons given by Dawson J and Kirby J, that the primary judge and the majority of the Court of Appeal correctly decided the respondent's case in so far as it was founded on the tort of negligence.

The respondent also relies upon what she submits were actionable breaches of obligations owed to her by the appellant and imposed upon the appellant by statute. She bases this part of her case upon the distinct operation of two statutes, both of which came into operation on 1 December 1975. They are the Property Law Act 1974 Q and the Residential Tenancies Act 1975 Q [172] .

1. The Residential Tenancies Act has since been repealed, with effect from 3 April 1995, by s 342 of the Residential Tenancies Act 1994 Q.

Statutory requirements as to the fitness of leased premises for human habitation were enacted against the background of the limited provision made by the common law in such matters.

In general, there is no breach of an express covenant by a landlord to keep the demised premises in repair unless two criteria have been met. First, the landlord must have information as to the existence of the defect such as would put a reasonable landlord on inquiry as to whether works of repair are needed and, secondly, thereafter the landlord must have failed to carry out the necessary works with reasonable expedition [173] . But, as Cussen J pointed out [174] , this is a rule of construction to be considered with the text of the particular lease, not a rule of law.

1. British Telecommunications Plc v Sun Life Assurance Society Plc [1996] Ch 69 at 74, 78-79. 2. Dunlop v Troy [1915] VLR 639 at 644cf Chatfield v Elmstone Resthouse Ltd [1975] 2 NZLR 269 at 273-275

In England, at common law, on the letting of a furnished house, there is an implied condition that it is in a fit state for habitation at the commencement of the tenancy [175] . The implied condition appears to arise from the intention of the parties inferred from the circumstances of the letting [176] . However, on the letting of furnished premises, there is no implied condition that the premises continue fit for habitation during the term [177] . Moreover, in 1896 in Lane v Cox [178] , the English Court of Appeal confirmed that at common law, in respect of a letting of unfurnished premises, there is no obligation implied in contract requiring the landlord to put or to keep the demised premises in repair. The English decisions were followed by the New South Wales Court of Appeal in Pampris v Thanos [179] .

1. Smith v Marrable (1843) 11 M& W 5 at 8 [152 ER 693 at 694]; Halsbury's Laws of England, 4th ed Reissue, vol 27(1), par 340; Glanville Williams, The Duties of Non-Occupiers In Respect of Dangerous Premises, Modern Law Review, vol 5 (1942) 194, at pp 194-199. 2. Wilson v Finch Hatton (1877) 2 ExD 336 at 340-341; cf Liverpool City Council v Irwin [1977] AC 239 at 253-255 3. Sarson v Roberts [1895] 2 QB 395 Pampris v Thanos [1968] 1 NSWR 56 at 58 4. [1897] 1 QB 415. See also Hart v Windsor (1843) 12 M& W 68 at 86-87 [152 ER 1114 at 1122]; Chappell v Gregory (1864) 34 Beav 250 at 252-253[55 ER 631 at 632]; Penn v Gatenex Co Ltd [1958] 2 QB 210 at 223 Nedovic and Stewart, The Fitness and Control of Leased Premises in Victoria, Melbourne University Law Review, vol 7 (1969) 258, at pp 258-259. 5. [1968] 1 NSWR 56.

I turn first to consider s 106 of the Property Law Act. This states [180] :

(1) In a lease of premises for a term of three years or for any less period there is an obligation -

(a) on the part of the lessor, in the case of a lease of premises for the purpose or principally for the purpose of human habitation, to provide and maintain the premises or such part as is let for such purpose in a condition reasonably fit for human habitation; and

(i) to care for the premises in the manner of a reasonable tenant; and

(ii) to repair damage caused by him or by persons coming on the premises with his permission.

(a) to leases made after the commencement of this Act;

(b) notwithstanding any other provision of this Act or any agreement to the contrary.

In s 4(1), the term "lease" is defined as including a "demise and tenancy, whether for a term, for a period, or at will". It will be noted that the "obligation" imposed on the landlord is to provide and maintain the premises in a certain state. 1. This is the form taken by s 106(1) after amendment made before its commencement by s 10 of the Property Law Act Amendment Act 1975 Q (the 1975 Amendment Act).

Rather than use the terms "warranty" in respect of the present condition of the premises at the commencement of the lease, and "covenant" in respect of the requirement thereafter to keep the premises in the specified state [181] , in s 106 the legislature uses "obligation" to cover both. The above definition of "lease" has the consequence that s 106(1) includes a tenancy at will, making the term "covenant" inapt for use in that section. The Property Law Act uses the term "covenant" in its strict sense of a promise or stipulation under seal. This is shown by s 105. This section implies in every lease of land an obligation by the lessee to pay rent and, in the case of leases to which s 106(1)(a) does not apply, an obligation on the lessee to keep the premises in good repair. The effect of s 105(2) is that, in the case of those leases to which the section extends and which are leases by deed, "any obligation implied by this section shall take effect as a covenant".

1. As is done in the corresponding provision, s 116H(1) of the Property Law Act 1952 NZ, inserted by s 10 of the Property Law Amendment Act 1975 NZ.

The interrelation between ss 105 and 106 with respect to the condition of the premises should be noted. Section 105 applies "unless otherwise agreed", whereas where s 106 applies it does so notwithstanding any agreement to the contrary (s 106(2)). Further, in the case of a lease of premises for a term of three years or for any less period for the purpose of human habitation, the lessor is required by s 106(1)(a) to provide and maintain the premises in a condition reasonably fit for human habitation [182] . However, with respect to other leases, s 105(1)(b) implies, unless otherwise agreed, an obligation by the lessee to keep the demised premises in good and tenantable repair, having regard to various matters including their condition at the commencement of the lease and reasonable wear and tear.

1. Before amendment by the 1975 Amendment Act, s 106(1)(a) also included, in any lease of premises for a term of three years or for any lesser period, an obligation on the part of a lessor to provide, and during the lease to "maintain the premises in a good state of repair".

In the present case, the parents of the respondent occupied the premises under an oral tenancy agreement. This provided for a rental of $100 per week but the evidence did not disclose how often the rental was to be paid or whether there was any agreement as to how long the tenancy was to continue. The better view appears to be that the tenancy was a periodic tenancy, being a lease from week to week [183] . It follows that the parents of the respondent occupied the premises under a lease, within the meaning of the definition in s 4(1), which was for a term of three years or for a lesser period so as to attract s 106(1).

1. Dockrill v Cavanagh (1944) 45 SR(NSW) 78 at 80-82; Chan v Cresdon Pty Ltd (1989) 168 CLR 242 at 248-249, 264.

The respondent submits that there was a failure by the appellant to discharge the obligation imposed by par (a) of s 106(1) "to provide and maintain the premises in a condition reasonably fit for human habitation". In the circumstances explained by Kirby J in his reasons, a water tap in the yard of the premises had become charged with electricity so that when the respondent touched it the current passed through her and she was seriously injured.

At this stage, I put to one side the question whether in the present case the Residential Tenancies Act operated to displace what would otherwise be the operation of s 106 of the Property Law Act.

Authoritative guidance, which in my view should be accepted, as to the meaning of "in a condition reasonably fit for human habitation" as that phrase appears in s 106(1)(a), is provided by the decision of the House of Lords in Summers v Salford Corporation [184] . Section 2 of the Housing Act 1936 UK (the 1936 Act) implied in certain contracts for the letting of houses a condition that at the commencement of the tenancy the house be, and an undertaking that during the tenancy the house be kept by the landlord, "in all respects reasonably fit for human habitation". The House of Lords adopted [185] the statement by Atkin LJ in Morgan v Liverpool Corporation [186] :

[I]f the state of repair of a house is such that by ordinary user damage may naturally be caused to the occupier, either in respect of personal injury to life or limb or injury to health, then the house is not in all respects reasonably fit for human habitation. In the present case, the state of repair of the premises was such that, by ordinary use of the water tap, personal injury would be caused to the occupier. It follows that the premises were not in a condition reasonably fit for human habitation within the meaning of s 106(1)(a) of the Property Law Act. 1. [1943] AC 283. 2. Summers [1943] AC 283 at 289, 291, 294-295, 299. 3. [1927] 2 KB 131 at 145. Later, in the Housing Act 1957 UK, s 4(1) provided that in determining for any of the purposes of that statute whether: "a house is unfit for human habitation, regard shall be had to its condition in respect of the following matters, that is to say - (a) repair; (b) stability; (c) freedom from damp; (d) natural lighting; (e) ventilation; (f) water supply; (g) drainage and sanitary conveniences; (h) facilities for storage, preparation and cooking of food and for the disposal of waste water; and the house shall be deemed to be unfit for human habitation if and only if it is so far defective in one or more of the said matters that it is not reasonably suitable for occupation in that condition."

However, it does not necessarily follow from this that the respondent succeeds in an action to recover damages. Two further questions arise. The first concerns the nature of the obligation imposed upon the appellant. The issue then is whether the defective condition of the premises involved a breach by the appellant of that obligation. The second question is whether, if that be so, the respondent, an occupant but not the lessee of the premises, might bring an action to recover loss occasioned by that breach of obligation. The respondent submits that the appellant bore what amounted to an absolute liability, or at least a non-delegable duty to discover latent defects, and that she may sue for breach thereof although not a tenant.

In resolving these issues assistance is provided by decisions in England and Canada which construe comparable legislation. The sidenote to s 106 of the Property Law Act refers to United Kingdom legislation, s 6 of the Housing Act 1957 UK and to s 96 of the Landlord and Tenant Act 1970 Ont [187] . Thus, this is not a case where legislation from elsewhere may have existed but was not in the contemplation of the legislature. Further, the Queensland legislation followed upon the Report of the Law Reform Commission on Property Law Reform [188] . To the Report, a draft Bill had been attached. Upon cl 106 of that draft Bill, the Commission commented:

In England by statute (Housing Act, 1957, s 6) a condition of fitness for human habitation is now implied in a lease of a house at a low rent, and s 32 of the Housing Act 1961 implies a covenant by the landlord to repair the structure and exterior of a dwelling house let for less than seven years. More recently in Ontario s 96 of the Landlord and Tenant Act (c 236 of 1970) has imposed on the landlord, in the case of a residential tenancy, the responsibility of providing and maintaining the rented premises in a good state of repair and fit for habitation during the tenancy.

In Queensland the only comparable provision was that contained in s 35 of The Landlord and Tenant Acts, 1948 to 1961, which prohibited the letting of a dwelling house known not to be in a fair and tenantable state of repair, but this statute was repealed in 1970, and the common law rule now prevails in this State. The rule was one which became established in England at a time when long leases of residential houses were common, as they still are now; but this has never been the case in Queensland, where residential leases are almost invariably periodic tenancies of the weekly or monthly variety. The common law rule is therefore unsuited to Queensland conditions, and we propose the adoption of the principles of the Ontario and English legislation, confining, however, the obligation so imposed to tenancies for periods of three years or less. This is all the more necessary because the preceding clause would otherwise now ordinarily impose on the tenant an implied obligation to repair.

The last sentence refers to what became the tenant's obligation under s 105(1)(b), a matter to which I have referred earlier in these reasons. 1. RSO 1970 c 236. Section 96 of the Landlord and Tenant Act 1980 Ont (RSO 1980 c 232) is relevantly in the same terms. 2. (1973) QLRC 16.

I turn to the United Kingdom legislation. So far as is presently relevant, s 6(2) of the Housing Act provided:

Subject to the provisions of this Act, in any contract to which this section applies there shall, notwithstanding any stipulation of 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, fit for human habitation. Section 96(1) of the Ontario statute stated: A landlord is responsible for providing and maintaining the rented premises in a good state of repair and fit for habitation during the tenancy and for complying with health and safety standards, including any housing standards required by law, and notwithstanding that any state of non-repair existed to the knowledge of the tenant before the tenancy agreement was entered into.

Section 6 of the Housing Act had a lengthy line of descent in the United Kingdom, beginning with nineteenth century legislation designed to alleviate the living conditions of the urban poor [189] . In O'Brien v Robinson [190] , the House of Lords held that an obligation imposed upon a landlord by s 32 of the Housing Act 1961 UK to keep in repair the structure and exterior of a leased dwelling house arose only when defects, previously latent and invisible, became patent and were made known to the landlord. Lord Morris of Borth-y-Gest said [191] :

The obligation on a lessor under s 32 of the Act of 1961 "to keep in repair" may be compared with the obligations on a lessor under earlier Acts. Thus, under the Act of 1957 (see s 6) the implications include 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, fit for human habitation. Under the Act of 1936 [192] there was a comparable provision (see s 2) as there was in the Housing Act 1925 (see s 1). See also [ss 14 and] 15 of the Housing, Town Planning, etc Act 1909 [193] . In the Act of 1936 the implied condition was that at the commencement of the tenancy the house was, and the implied undertaking that during the tenancy it would be kept, in all respects reasonably fit for human habitation.

So under all these Acts since 1909 the obligation of a lessor, where it has by statute been implied, has been to keep the premises in a certain condition, and for the purpose of considering the issue now arising it is immaterial whether the obligation imposed is to keep in repair or to keep premises in all respects reasonably fit for human habitation. [194]

1. The 1909 Act was the first statute to imply not only a condition as to the state of the premises at the commencement of the tenancy (s 14) but also an "undertaking" effective during the tenancy (s 15). Section 12 of the Housing of the Working Classes Act 1885 UK and s 75 of the Housing of the Working Classes Act 1890 UK had implied only a condition as to the initial state of the premises.
   1. Cornish and Clark, Law and Society in England 1750-1950 (1989), pp 179-184; Reynolds, Statutory Covenants of Fitness and Repair: Social Legislation and the Judges, Modern Law Review, vol 37 (1974) 377, at pp 377-381.
   2. [1973] AC 912.
   3. O'Brien v Robinson [1973] AC 912 at 921
   4. The 1936 Act.
   5. Housing, Town Planning, etc Act 1909 UK (the 1909 Act).
   6. The 1909 Act was the first statute to imply not only a condition as to the state of the premises at the commencement of the tenancy (s 14) but also an "undertaking" effective during the tenancy (s 15). Section 12 of the Housing of the Working Classes Act 1885 UK and s 75 of the Housing of the Working Classes Act 1890 UK had implied only a condition as to the initial state of the premises.

As indicated earlier in these reasons, in Summers v Salford Corporation the House of Lords was construing the covenant implied by s 2 of the 1936 Act. This and other cases, including the earlier decision of the House in McCarrick v Liverpool Corporation [195] , were considered in O'Brien v Robinson . Lord Morris of Borth-y-Gest said [196] that the authorities showed that "every point of view has been explored". His Lordship added [197] :

On the one hand, it has been said that it would be wholly unreasonable to make a lessor liable for failing to remedy a defect of which he was unaware. So the liability to repair is one that arises only upon notice that there is a need to repair On the other hand, it has been said that if a lessor chooses or is required to covenant to keep premises in repair then there is an absolute obligation upon him. Alternatively, even if ordinarily there is no obligation on the part of a lessor until he is told by his lessee of a need for repair, a lessee can only give notice of any condition of which he is aware and accordingly cannot give notice of some unknown or unseen condition or latent defect: if, in these circumstances, the lessee suffers injury by reason of the premises not being in repair liability should rest upon the lessor. 1. [1947] AC 219. 2. O'Brien v Robinson [1973] AC 912 at 921 3. O'Brien v Robinson [1973] AC 912 at 921

Lord Diplock referred to the covenant implied by the 1909 Act that the leased premises be kept by the landlord "in all respects fit for human habitation" [198] , saying that provisions in substantially the same form had been re-enacted in the Housing Acts of 1925 and 1936. His Lordship said [199] :

This implied term did impose upon the landlord an obligation owed to the tenant to carry out such work upon the premises during the continuance of the tenancy as might from time to time be needed to keep them reasonably fit for human habitation. But although 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. It should be noted that the terms of s 15(1) of the 1909 Act, which were construed by Lord Diplock (with whom Lord Reid, Lord Simon of Glaisdale and Lord Cross of Chelsea agreed) as imposing a contractual obligation with respect to the condition of the premises during the holding and owed by the landlord to the tenant, spoke of "an undertaking". As indicated earlier in these reasons, s 106 of the Property Law Act uses the phrase "there is an obligation" in respect of the condition of the premises both at the commencement and during the currency of the lease. Unless there be, as does not readily appear to be the case, a relevant distinction between the use of the terms "undertaking" and "obligation", the reasoning of Lord Diplock is applicable to the Queensland statute. 1. O'Brien v Robinson [1973] AC 912 at 927 2. O'Brien v Robinson [1973] AC 912 at 927

It may also be noted that in McCarrick v Liverpool Corporation [200] , the appellant had unsuccessfully submitted to the House of Lords that s 2 of the 1936 Act imposed upon the landlord a duty which was analogous to that imposed on a factory occupier by the Factory Acts and was absolute. A submission to like effect, with respect to the 1909 Act, had been rejected by the Court of Appeal in Ryall v Kidwell & Son [201] . In effect, such a submission is made by the respondent in the present case.

1. [1947] AC 219 at 221. 2. [1914] 3 KB 135 at 140.

Ryall also decided (again contrary to the respondent's submission to this Court) that the covenant implied by the 1909 Act to keep the premises in a state reasonably fit for human habitation enured only for the benefit of a tenant; accordingly, an action by the infant daughter of the tenant to recover damages for personal injuries failed. In the United Kingdom, this state of affairs appears to have been remedied by the Occupiers' Liability Act 1957 UK. Section 4, so far as relevant, provided:

(1) Where premises are occupied by any person under a tenancy which puts on the landlord an obligation to that person for the maintenance or repair of the premises, the landlord shall owe to all persons who or whose goods may from time to time be lawfully on the premises the same duty, in respect of dangers arising from any default by him in carrying out that obligation, as if he were an occupier of the premises and those persons or their goods were there by his invitation or permission (but without any contract).

(6) Nothing in this section shall relieve a landlord of any duty which he is under apart from this section.

(7) For the purposes of this section, obligations imposed by any enactment in virtue of a tenancy shall be treated as imposed by the tenancy, and "tenancy" includes a statutory tenancy which does not in law amount to a tenancy, and includes also any contract conferring a right of occupation, and "landlord" shall be construed accordingly.

The objective of this provision was to give to any person lawfully upon the premises the same right of action against the landlord, in respect of an injury as that person would have had as a tenant if the landlord were bound by contract with the tenant or by statute to keep the premises in repair [202] . We were referred to no comparable Queensland provision [203] . 1. Law Reform Committee, Third Report on Occupiers' Liability to Invitees, Licensees and Trespassers (1954), Cmd 9305, pars 85-94. 2. cf Wrongs Act 1936 SA, ss 17B-17E; Wrongs Act 1958 Vic, ss 14A, 14B; Occupiers' Liability Act 1985 WA, s 9.

The decision of the House of Lords in O'Brien v Robinson was given before the enactment of the Queensland legislation. It proved influential in the interpretation of the Canadian legislation. O'Brien v Robinson was cited to the Ontario Court of Appeal in McQuestion v Schneider [204] . The plaintiffs in that case had formerly owned the subject premises. They had sold the premises to the defendants and remained on as monthly tenants of the defendants. One of the plaintiffs was injured by a fall through steps which were in a bad state of repair by reason of dry rot. The presence of the dry rot could not have been ascertained by any reasonable inspection. The action was dismissed and an appeal dismissed. MacKinnon JA said [205] :

In my view, s 96(1) does not impose an absolute liability upon a landlord for any injuries or damages that may be caused by a latent defect, of which the landlord has no knowledge, nor could reasonably be expected to have had such knowledge. To alter the law so drastically as to impose strict liability on a landlord, regardless of his knowledge or constructive knowledge, would require much more precise language. His Lordship added [206] : Putting the plaintiffs' case at its highest, namely, that there is now a statutory duty of care imposed upon a landlord, the landlords here did not know of the latent defect nor, under the circumstances, could they reasonably be expected to have had knowledge of it. It is also common ground that no notice of the defect was given to the landlord if that were required.

In the circumstances we can find no failure on the part of the landlords to exercise reasonable care in providing and maintaining the rented premises in a good state of repair and fit for habitation.

This construction of s 96(1) was followed by the Ontario Court of Appeal in Fleischmann v Grossman Holdings Ltd [207] and Dye v McGregor [208] . In all of these cases decided under the Ontario legislation, the plaintiffs who sought or recovered damages were tenants. Fleischmann was followed by the New Brunswick Court of Queen's Bench in Turnbull v Hsieh [209] . The Court there was construing s 3 of the Residential Tenancies Act 1975 NB [210] . This stated:

(a) shall deliver the premises to the tenant in a good state of repair and fit for habitation;

(b) shall maintain the premises in a good state of repair and fit for habitation;

(b.1) shall deliver to the tenant and maintain in a good state of repair any chattels provided therein by the landlord;

(c) shall comply with all health, safety, housing and building standards and any other legal requirement respecting the premises; and

(d) shall keep all common areas in a clean and safe condition.

(2) Subsection (1) applies whether any state of non-repair or unfitness for habitation existed to the knowledge of the tenant before the tenancy agreement was entered into or arose thereafter.

The plaintiff was the infant daughter of one of the tenants, her mother. The plaintiff was scalded as a result of the dislodgement of a hot water tap from the bathroom wall. The landlord previously had been informed that the tap was leaking and loose. No point was taken, either at first instance or on appeal, as to whether the obligation under the legislation was owed by the landlord not only to the tenants but also to other occupiers as well. 1. (1975) 8 OR (2d) 249. 2. McQuestion (1975) 8 OR(2d) 249 at 251. 3. McQuestion (1975) 8 OR(2d) 249 at 252. 4. (1976) 16 OR (2d) 746 at 748-749. 5. (1978) 20 OR (2d) 1 at 2. 6. (1989) 101 NBR (2d) 339; appeal allowed in part (1990) 108 NBR (2d) 33. 7. SNB 1975 c R-10.2.

A specific provision which, had it been included in s 106 of the Property Law Act, would have availed the present respondent was made in British Columbia. Section 30 of the Landlord and Tenant Act 1974 BC [211] obliged a landlord to provide and maintain residential premises and residential buildings in such a state of repair as to comply with health and safety standards and, having regard to the age, character and locality of the residential building as would make it reasonably suitable for occupation by a reasonable tenant who would be willing to rent it. By force of s 6(3)(c) of the Occupiers' Liability Act 1974 BC [212] , obligations imposed by s 30 were deemed to be imposed by a tenancy, for the purposes of s 6(1) [213] . That provided:

Where premises are occupied or used by virtue of a tenancy under which a landlord is responsible for the maintenance or repair of the premises, it is the duty of the landlord to show toward any person who, or whose property, may be on the premises the same care in respect of risks arising from any failure on his part in carrying out his responsibility, as is required by this Act to be shown by an occupier of premises toward persons entering on or using them. The result was that in Zavaglia v Maq Holdings Ltd [214] , the plaintiff, who had been visiting his brother, one of the occupiers of the house in question, recovered for injuries sustained when he fell into a stairwell around which there had been no hand-railing. 1. Repealed and substituted by the Residential Tenancy Act 1977 BC c 61; now RSBC 1979 c 365, s 25. 2. Now RSBC 1979 c 303. 3. cf Occupiers' Liability Act 1957 UK, s 4(7); Wrongs Act 1936 SA, ss 17B-17E; Wrongs Act 1958 Vic, ss 14A, 14B; Occupiers' Liability Act 1985 WA, s 9. 4. (1986) 6 BCLR (2d) 286.

Finally, reference should be made to the legislation considered in Gaul v King [215] and Basset Realty Ltd v Lindstrom [216] . Section 6 of the Residential Tenancies Act 1970 NS provided that where the relation of landlord and tenant existed in respect of residential premises, there was deemed to be an agreement between landlord and tenant that certain conditions applied "as between the landlord and tenant as statutory conditions governing the residential premises". One statutory condition was that the landlord keep the premises in a good state of repair and fit for habitation during the tenancy. In Gaul v King , the Appeal Division of the Nova Scotia Supreme Court referred to various writings [217] , to s 96(1) of the Ontario legislation, and to the decision in Fleischmann and continued [218] :

Under both statutes the liability springs from the enactment and not from the contract. The duty to repair is made a statutory condition and cannot be altered by the parties. While the statute clearly gives rise to a right of action in contract I do not think that the Legislature intended thereby to exclude a right of action in tort. The result is to bring about a complete reversal of the position of the lessor from one of immunity to one of liability. In Basset Realty, the plaintiff was the foster child of the lessee. The Appeal Division of the Nova Scotia Supreme Court said of s 6 [219] : The tenant and members of his household were clearly within the class of persons intended to be protected by the statute and the lessor owed a duty to them to exercise reasonable care. Such reasoning, whilst it may be the product of differences in the terms of the applicable statutes, is at variance with the decision of Ryall v Kidwell & Son [220] upon the 1909 Act and the speech of Lord Diplock in the passage set out earlier in these reasons from O'Brien v Robinson [221] . The United Kingdom legislation, putting to one side the effect of s 4(7) of the Occupiers' Liability Act, has been given a consistent construction. This is that the duty imposed by the statute is to perform the contract with the tenant, containing the term implied by statute, rather than one to avoid injury to the tenant or to third parties. 1. (1979) 103 DLR (3d) 233. 2. (1979) 103 DLR (3d) 654. 3. Including the Note, "Lessor's Duty to Repair: Tort Liability to Persons Injured on the Premises", Harvard Law Review, vol 62 (1949) 669 and Reynolds, Statutory Covenants of Fitness and Repair: Social Legislation and the Judges, Modern Law Review, vol 37 (1974) 377. 4. Gaul v King (1979) 103 DLR(3d) 233 at 240-241. 5. Basset Realty (1979) 103 DLR (3d) 654 at 666. 6. [1914] 3 KB 135. 7. [1973] AC 912 at 927.

Moreover, in both the Nova Scotia decisions, the local statute was so construed as not to impose an absolute liability and as not to cover latent defects which could not be discovered by the exercise of reasonable care and skill. In Gaul v King [222] , Jones JA said:

This is consistent with the test under the English legislation. This will not impose an undue hardship on the landlord and will afford a reasonable measure of protection to the tenant. It should be noted that the Ontario provision requires the landlord to repair notwithstanding a state of non-repair when the premises were leased. The object of the legislation is to provide reasonable standards for rental premises. This does not mean that the Legislature intended that lessors should be insurers. 1. (1979) 103 DLR (3d) 233 at 243.

This consideration of the authorities bearing upon the United Kingdom and Canadian legislation supports two propositions. The first is the rejection of a construction which would impose upon the landlord liability which is absolute in nature. The second is that, in the absence of a specific legislative provision such as that made in British Columbia and with the possible qualification required by the Nova Scotia decisions, legislation in like form to s 106 of the Property Law Act has been construed so as to impose obligations owed by the landlord to the tenant, not in favour of third parties.

It was perhaps with this latter difficulty in mind and upon the footing that s 106 imposed an obligation which was owed to the tenant and was contractual in nature that the respondent relied upon s 55 of the Property Law Act [223] . Sub-section (1) thereof states:

A promisor who, for a valuable consideration moving from the promisee, promises to do or to refrain from doing an act or acts for the benefit of a beneficiary shall, upon acceptance by the beneficiary, be subject to a duty enforceable by the beneficiary to perform that promise. 1. See Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 at 117-118, 134, 160.

"Promise" is defined in s 55(6)(c) in terms not apt to include an obligation inserted in a contract by operation of statute. Rather, "promise" is treated in terms of intention, as one "which is or appears to be intended to be legally binding". "Acceptance" is defined in s 6(a) as meaning "an assent by words or conduct communicated by or on behalf of the beneficiary to the promisor within a reasonable time of the promise coming to the notice of the beneficiary". It is one thing to say that by operation of s 106 in the lease of the subject premises there was an obligation on the part of the appellant to provide and maintain the premises in a condition reasonably fit for human habitation. It is another to construe this statutory obligation as a promise by the appellant to do an act or acts for the benefit of the respondent, which was accepted by the conduct of the respondent in going into occupation of the premises with her parents.

I conclude that the allowance by the Court of Appeal of the appeal by the respondent is not to be supported by reliance upon the Property Law Act. First, the statute imposes an obligation upon the landlord as if it were an express stipulation, contractual in nature between landlord and tenant. Secondly, the respondent is a third party to that contractual stipulation. Thirdly, there is no obligation, even in favour of the tenant, in respect of latent defects unknown to the landlord and of which the landlord could not reasonably be expected to have been aware. It remains to consider the Residential Tenancies Act.

Section 7(a) of the Residential Tenancies Act provided:

Notwithstanding any agreement between a landlord and tenant, in every tenancy agreement entered into after the commencement of this Act there shall be implied obligations -

(i) to allow the tenant during the tenancy quiet enjoyment of the dwelling-house and fixtures, fittings, goods and chattels let therewith;

(ii) to provide and, during the tenancy, maintain the dwelling-house in good tenantable repair and in a condition fit for human habitation;

(iii) to maintain during the tenancy fixtures, fittings, goods and chattels let with the dwelling-house in good tenantable repair;

(iv) to comply with all lawful requirements in regard to health and safety standards with respect to the dwelling-house;

(v) to keep common areas (in cases where the dwelling-house is part of a multiple house or other building) in a clean and safe condition. [224]

"Dwelling-house" is defined in s 6 to mean premises "let for the purpose or principally for the purpose of residence", but with certain exclusions including premises ordinarily let for holiday purposes. The term "tenancy agreement" is broadly defined, without any limitation as to the period of the letting, and as meaning "an agreement between a landlord and tenant for the letting of a dwelling-house". Plainly, the parents of the respondent held the subject premises under a tenancy agreement which attracted the operation of s 7 of the Residential Tenancies Act. In its terms, s 7 implied "in every tenancy agreement" of whatever duration an obligation on the part of the appellant to provide, and during the tenancy to maintain, the dwelling house in two respects. The first was "in good tenantable repair" and the second "in a condition fit for human habitation" (s 7(a)(ii)). Section 7 applied notwithstanding any agreement between landlord and tenant. In that respect s 7(a) differed from s 105 of the Property Law Act and resembled s 106 thereof. It also differed from s 106(1)(a) in specifying an obligation of the landlord not only in respect of fitness for human habitation [225] but also with respect to repair. 1. Section 7(b) implied obligations on the part of the tenant with respect to such matters as the payment of rent and caring for the dwelling-house in the manner of a reasonable tenant. 2. Section 106(1)(a) used the phrase " reasonably fit for human habitation", whereas s 7(a)(ii) spoke of "a condition fit for human habitation"; nothing appears to turn upon the presence of the word "reasonably".

It has been suggested that, in respect of tenancy agreements to which the Residential Tenancies Act applied, the legislative scheme, which involved the commencement of both statutes on 1 December 1975, was that the Residential Tenancies Act applied to the exclusion of provisions such as s 106 of the Property Law Act [226] . In the Court of Appeal, Pincus JA said in his dissenting judgment [227] , and I agree:

It seems improbable that the legislature would have desired that both of these provisions, worded similarly but not identically, apply to tenancies of dwelling houses; the intention appears to have been to set out, in the [Residential Tenancies Act], a comprehensive statement of the implied obligations of the landlord and of the tenant in tenancies of dwelling-houses, rather than to oblige landlords and tenants to attempt to piece those obligations together by a scrutiny of s 7 of the [Residential Tenancies Act] and ss 105 and 106 of the [Property Law Act]. Further, as indicated above, at least as regards s 7(a), the Residential Tenancies Act conferred upon tenants more comprehensive rights than ss 105 and 106 of the Property Law Act. Support for the construction preferred by Pincus JA is provided by s 5 of the Residential Tenancies Act. This stated:

(1) Notwithstanding the Property Law Act 1974 and save as otherwise provided in this Act, this Act applies to -

(a) dwelling-houses and tenancies of dwelling-houses;

(b) tenancy agreements entered into or renewed before and valid and subsisting at the commencement of this Act;

(c) tenancy agreements entered into after the commencement of this Act.

(2) The provisions of this Act apply to every tenancy agreement but nothing in this Act prevents a landlord and tenant from agreeing to terms and conditions that are not inconsistent with the rights, obligations and restrictions conferred or imposed by this Act.

1. Bradbrook MacCallum & Moore, Residential Tenancy Law and Practice - Victoria and South Australia (1983), par 1306. 2. Harris v Northern Sandblasting Pty Ltd [1995] AustTorts Rep ¶81-365 at 62,748.

In my view, in the circumstances of the present case, the obligation of the appellant with respect to the fitness of the leased premises for human habitation was to be found in s 7(a)(ii) of the Residential Tenancies Act. However, even if in the present case s 5 of the Residential Tenancies Act permitted a concurrent operation of s 106(1)(a) of the Property Law Act, the result, as indicated earlier in these reasons, would not be to avail the respondent.

Nor, in my view, does s 7 of the Residential Tenancies Act assist the respondent's case. First, s 7 in its very terms implied " in every tenancy agreement obligations " on the one hand on the part of the landlord (s 7(a)) and on the other on the part of the tenant (s 7(b)) (emphasis added). Further, it is at least as difficult to apply the third party provisions of s 55 of the Property Law Act to s 7 of the Residential Tenancies Act as to s 106 of the other statute.

Finally, there is no more reason here, than under the Property Law Act, to impose upon the landlord obligations, absolute in nature, with respect to the fitness of the leased premises for human habitation. To adapt what was said by Jones JA in Gaul v King [228] , the object of the Residential Tenancies Act was to provide reasonable standards for the rental premises to which it applied, rather than to render lessors insurers.

This appeal raises two essential questions. The first is whether, by the common law a landlord of residential premises owes a non-delegable duty to the child of a tenant in respect of the safety of the premises. The second is whether, under applicable legislation, the child may recover damages from the landlord for injuries received following an incompetent repair of an electrical fault which, unknown to the landlord, left the premises in an unsafe condition.

The facts are tragic. Tragic facts put legal principles to the test. They stimulate a decision-maker to explore possibilities which might not be considered in an insubstantial or trivial case. Many recent decisions of this Court show that the common law, in the field of torts, may be refined and restated [229] , developed [230] and rewritten [231] by judicial decision. Furthermore, in construing statutory language, judges will often enjoy leeways for choice. However, the development of the common law by the judiciary must be incremental. It must be in harmony with general legal doctrine [232] . The interpretation of statutes must give effect to the purpose of the legislature revealed in the words chosen [233] . In the field of tort liability at common law or under legislation, the suggestion that the legal obligations of a particular litigant should be enlarged by judicial decision, so as to impose new responsibility to meet the perceived needs of the case, requires that regard be had not only to the general considerations of principle and policy which that course will involve [234] but also to the economic costs of loss redistribution which may result when the solution for the particular case becomes a principle of general application for all like cases [235] .

1. Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 2. Kondis v State Transport Authority (1984) 154 CLR 672 3. Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 Northern Territory v Mengel (1995) 185 CLR 307 4. Mabo v Queensland [No 2] (1992) 175 CLR 1 at 29, Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 481cf Dietrich v The Queen (1992) 177 CLR 292 at 320, per Brennan J (dissenting), citing Lord Devlin, The Judge (1979), p 12. 5. Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 517-518 6. cf Voli v Inglewood Shire Council (1963) 110 CLR 74 at 88-89 Caltex Oil (Australia) Pty Ltd v The Dredge Willemstad (1976) 136 CLR 529 at 565-567 Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 498 7. cf Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 at 244 Johns v Release on License Board (1987) 9 NSWLR 103 at 113-116 Western Suburbs Hospital v Currie (1987) 9 NSWLR 511 at 518 Cekan v Haines (1990) 21 NSWLR 296 at 306-309 Posner, Economic Analysis of Law, 4th ed (1992), Ch 6; Kirby, "Law and Economics - is there Hope?", Monash University, 4 July 1997.

Because of the paucity of materials with which courts in Australia typically decide issues of this kind the evaluation of suggested considerations of principle and policy and the estimation of economic costs can only be attempted in a very general and imprecise way. Yet where these considerations loom large, they will often present a warning to the judiciary that it has reached the limits of its function to develop the law. Judges must then accord the legislature the first opportunity to address the problem. Otherwise, a tragic case may lead the court into premature action or a distortion of legal doctrine which is impermissible [236] .

1. cf Breen v Williams (1996) 186 CLR 71 at 114-115

The daughter of tenants of residential premises suffers electrical shock

In July 1984 Northern Sandblasting Pty Ltd (the appellant) purchased premises in Currajong, near Townsville in Queensland. At the time of the purchase the premises were inspected by the North Queensland Electricity Board (the Board) to check the electrical installations. They were passed by the Board. The premises were unoccupied for a time prior to 12 December 1986. On that day, the appellant agreed with Mr Phillip Harris and Mrs Pamela Harris (the tenants [237] ) that they could occupy the premises for a rent of $100 per week. The agreement was in the nature of an informal weekly tenancy. It was intended that the premises, which were partly furnished, would be immediately occupied by the tenants. Because the appellant was a company owned and controlled by a relative of the tenants, it may be taken that it was aware that living with them in the premises were their son and a daughter, Nicole Harris (the respondent). She was nine years of age at the time.

1. It is unclear whether both Mr and Mrs Harris were parties to the lease. For present purposes it will be assumed that they were.

To render the premises habitable, the Board, on the instructions of the appellant, reconnected the supply of electricity. There was a dispute at the trial as to whether this involved reconnection at the power pole or the simple act of switching the power on at the domestic switch box within the premises. The primary judge accepted the evidence of the Board's employee that the latter was the case.

On 2 June 1987, Mrs Harris noticed that one element on the electric stove provided in the premises was not working. She contacted the appellant. It authorised the tenants to obtain a quotation from Mr Brian Briggs, an electrical contractor previously used by the appellant for electrical repairs. Mr Briggs was duly engaged. He attended to the task. However, when he replaced the coverplate on the stove, he failed to ensure that the active wire, carrying the electrical current, had no potential to make contact with a slack earth wire nearby. This mistake was only discovered after the injury to the respondent.

On 4 June 1987, the respondent reported feeling a tingling sensation when she touched the tap in the bathroom whilst having a bath. Her brother felt nothing when using the stove. By inference the respondent was in bare feet on the bathroom floor. The brother was wearing rubber-soled shoes in the kitchen. After her bath, the respondent was standing in bare feet on wet grass when she was instructed by her mother to turn off an outside garden sprinkler. When she grasped the tap for this purpose, she was subjected to a prolonged charge of electrical current. This caused severe brain damage. It left her "in a vegetative state, capable only of coarse responses to stimuli and without understanding or awareness of her condition" [238] . The respondent's injuries were profound, their likely duration limited only by a diminished life expectancy. It was found that, if she were entitled to recover damages, the proper verdict would be of the order of $1.2 million [239] .

1. Harris v Briggs [1994] AustTorts Rep ¶81,301 at 61,703. 2. Harris v Briggs [1994] AustTorts Rep ¶81,301 at 61,725.

The respondent, by her mother as next friend, sued Mr Briggs, the Board and the appellant. Her claim was heard in the Supreme Court of Queensland by Derrington J. His Honour described how two considerations had contributed to the fact that the garden tap was charged with electrical current. The first was the condition of the defective element of the electrical stove. The Judge found that "[h]aving rendered the element capable of operation [Mr Briggs] should have seen that the active wire that he had repaired would become part of a dangerous situation in association with the earth-wire" [240] . He noted that Mr Briggs agreed that this was so. This constituted negligence on his part. Yet, if the earthing systems in operation in the premises had been functioning correctly, a short circuit between the active wire and earth wire in the stove would have caused a fuse to blow, limiting the duration of exposure to the active current.

1. Harris v Briggs [1994] AustTorts Rep ¶81,301 at 61,708.

There were two fuse systems operating in the premises. The first was in the domestic switch box. When the stove short-circuited, because of Mr Briggs' negligent repair of the wiring, this should have caused a fuse in the switch box to "blow". That did not occur. As a result, the active current was diverted to the alternative or backup system for the escape of electricity. This involved the passage of the electrical current along the major earth wire embedded in the soil. Normally such current would find its way through the ground to a metal peg near the external power pole in the street adjoining the premises. However, as sometimes happens, the ground contiguous to the water pipes in this case had a high resistance, making it a poor conductor of electricity. The result was that the current could not escape. It activated the water pipes in the vicinity. It was in this way that the tap, grasped by the respondent, became alive. Because the respondent was standing in bare feet on wet grass, her body became an efficient conductor of electricity. It afforded a route, alternative to the water pipe system, resulting in the passage of the electric current through the respondent's body to the ground.

The judge finds the electrician but not the landlord liable

Derrington J found in favour of the respondent against Mr Briggs. He did so upon the limited basis that, in effecting his repair of the element in the electric stove, Mr Briggs had left the active and neutral wires in a state that they could easily come into contact with each other, as they did. He rejected other allegations against Mr Briggs, including that he should have conducted a test on the earthing system of the house by the use of equipment which would not ordinarily be carried for the relatively simple task of repair of the stove for which he had been engaged.

Derrington J rejected the claim against the Board based on its alleged negligence in conducting the inspection years before the accident and in reconnecting the electricity to the premises. His Honour also dismissed the claim against the appellant. He rejected that claim so far as it was based on the Residential Tenancies Act 1975 Q (s 7). As to the claim based on the common law, he accepted that, in the circumstances of the case, the appellant, as landlord, owed the respondent, as daughter of the tenants, "a general duty of reasonable care to keep the premises safe so as to avoid harm to her from that source" [241] . However, he dismissed the argument that there had been any personal fault on the part of the appellant. He also rejected the submission that the appellant could not avoid its liability by the "engagement of a competent tradesman such as Mr Briggs" [242] . He examined the authority of this Court on non-delegable duties [243] . He concluded that, in this case, the special features necessary to attract a "personal" or "non-delegable" duty of care [244] were missing. Such features were inapplicable to the relationship of landlord and tenant. Upon these grounds, Derrington J dismissed the respondent's claim against the appellant. Judgment was entered in favour of the respondent against Mr Briggs alone.

1. Harris v Briggs [1994] AustTorts Rep ¶81,301 at 61,715. 2. Harris v Briggs [1994] AustTorts Rep ¶81,301 at 61,716. 3. The Commonwealth v Introvigne (1982) 150 CLR 258 Kondis v State Transport Authority (1984) 154 CLR 672 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 4. Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 552

The respondent appealed to the Court of Appeal. She confined her appeal to a challenge against the dismissal of the claim against the appellant. It must be inferred either that Mr Briggs was uninsured or that any insurance cover which he held was inapplicable or insufficient to meet the judgment.

By majority, the Court of Appeal upheld the respondent's appeal [245] . It permitted her to amend her statement of claim to add a claim under the Property Law Act 1974 Q, s 106(1)(a). Upon that amendment being made, it set aside the judgment in favour of the appellant. It ordered, in effect, that the judgment of the primary judge be amended to include judgment against the appellant as well as Mr Briggs.

1. Harris v Northern Sandblasting Pty Ltd [1995] AustTorts Rep ¶81-365.

The judges constituting the Court of Appeal divided in the answers which they gave to the respondent's arguments based on the common law and statute.

Fitzgerald P found in favour of the respondent on the basis of the "special" duty which exists in particular categories of cases [246] . His Honour said [247] :

[T]he [appellant's] duty of care to the [respondent] was breached as she submits. As an aspect of letting its house for reward, the [appellant] was required to ensure its fitness for human habitation, including the safety of the electricity system and electrical equipment. That was not a responsibility which it could delegate, or discharge, by waiting for notification of problems from an ingoing tenant or, given such notification, by appointing apparently qualified and competent persons. 1. Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550 2. Harris v Northern Sandblasting Pty Ltd [1995] AustTorts Rep ¶81-365 at 62,735.

In the light of this conclusion, Fitzgerald P did not have to reach a final view on the respondent's claims based upon the Residential Tenancies Act and the Property Law Act. He acknowledged the force of the criticisms mounted against the application of each of these Acts as an alternative source of liability. However, he joined in the proposal of McPherson JA that the respondent should have leave to raise, for the first time on appeal, the claim based on the Property Law Act [248] .

1. Harris v Northern Sandblasting Pty Ltd [1995] AustTorts Rep ¶81-365 at 62,725.

McPherson JA rejected the respondent's claim at common law. He dismissed the claim based upon the suggested failure to make inspections which would have revealed the "neutral link problem" involved in the alternative earthing system connected to the water pipe. He also rejected the claim based upon the suggested non-delegable duty owed in a situation of "special dependence or vulnerability" [249] . Nevertheless, he concluded that the respondent was entitled to succeed in reliance upon statutory duties imposed upon the appellant as landlord. Specifically, he held that the respondent was entitled to succeed based on the obligation implied by s 7(a)(i) of the Residential Tenancies Act. And he found that s 106(1)(a) of the Property Law Act also applied to the subject lease and presented "a less controversial basis on which to found a judgment in her favour" [250] . The latter provision had not been relied on at the trial. McPherson JA considered that it was nonetheless available, being no more than the "legal label" to be attached to the respondent's cause of action [251] .

1. Harris v Northern Sandblasting Pty Ltd [1995] AustTorts Rep ¶81-365 at 62,737-62,738. 2. Harris v Northern Sandblasting Pty Ltd [1995] AustTorts Rep ¶81-365 at 62,743. 3. Applying Shaw v Shaw [1954] 2 QB 429 at 441

Pincus JA dissented from the orders favoured by the majority. He concluded that the appellant was not liable at common law, either for its own suggested negligence or in respect of a "non-delegable duty" owed to the family of a tenant [252] . He found no analogy between this case and the other instances in which non-delegable liability have been found. His Honour rejected the argument that the Residential Tenancies Act gave rise to a cause of action, at least one for which the respondent could sue [253] . Similarly, he rejected the approach of McPherson JA that the Property Law Act could found such a cause of action [254] . This reasoning led Pincus JA to confirm the orders of the primary judge.

1. Harris v Northern Sandblasting Pty Ltd [1995] AustTorts Rep ¶81-365 at 62,747. 2. Harris v Northern Sandblasting Pty Ltd [1995] AustTorts Rep ¶81-365 at 62,747-62,748. 3. Harris v Northern Sandblasting Pty Ltd [1995] AustTorts Rep ¶81-365 at 62,748-62,749.

The result was that, upon neither basis on which the respondent succeeded in the Court of Appeal was there a majority. Although Fitzgerald P grounded the appellant's liability in the "special" duty of care at common law which he found, that opinion was rejected by each of the other judges. Although McPherson JA found for the respondent on the basis of breach of statutory duty, principally s 106(1)(a) of the Property Law Act, Pincus JA rejected that conclusion and Fitzgerald P, whilst reserving its correctness, expressed serious doubts about it.

The appellant, by special leave, now seeks to secure in this Court the restoration of the orders of the primary judge exempting it from liability.

To define the issues in the appeal, it is helpful to list a number of matters which can be put out of account:

No issue was raised concerning the liability of Mr Briggs or the exclusion of the Board from liability. At one stage the respondent's parents were joined as a third party in the proceedings, allegedly for their failure to alert the appellant about the defects in the premises. They too were dismissed from the proceedings. None of these orders is challenged.

The appellant conceded that it owed a duty of care, in negligence, to the respondent. The appellant disputed that it owed any duty pursuant to its contract of lease with the tenants to which the respondent was not a party. But it accepted that it owed a general duty, by the law of negligence, to exercise care to keep the premises reasonably safe for the respondent's use and to avoid reasonably foreseeable risk of injury to her. The precise foundation for this concession was never made clear. But the concession relieved the Court of Appeal, and this Court, of considering directly whether the immunity of a landlord from liability in negligence, formerly recognised by the common law in decisions such as Cavalier v Pope [255] , still represented the law of Australia. Long ago, that rule was modified by statute in parts of the United States of America [256] . More recently, it was rejected in that country as a principle of common law on the ground that it found "its source in an agrarian England of the dark ages" and was a rule which led to "untoward favoritism for landlords" [257] with the result that "the law in this area is a scandal" [258] . It was a rule "to be relegated to the history books where it more properly belongs" [259] . Under the influence of legislation, the common law rule was abandoned in Canada [260] . It was rejected in the Republic of Ireland [261] . It was held inapplicable to Australian conditions by the Full Court of the Supreme Court of South Australia [262] . No attempt was made to resurrect it in this Court. The appellant accepted, as it had below, that its common law liability in negligence to the respondent was to be decided, without preconceptions as to a landlord's former immunity.

No point was taken that the informal lease of the subject house did not include the garden where the respondent was injured or the tap from which she received the electric shock [263] . Nor does anything turn upon the fact that the house was only partly furnished when occupied by the respondent and her family - a matter thought relevant in some of the earlier cases [264] .

Some academic writing has suggested that consideration might be given to adopting a principle of vicarious liability for the acts and omissions of independent contractors [265] . There are, as McHugh J has observed, strong reasons for re-visiting this area of the law. However, the respondent did not argue that the appellant was vicariously liable to her for the negligence by Mr Briggs. I agree that at some future time it might be necessary to reconsider this question. Factors suggesting the need to do so include: the rationalisation of past classifications of liability [266] , the growing catalogue of instances of suggested "non-delegable duty" [267] , the criticisms voiced about to the lack of a coherent theory [268] , the retreat from the control test as an adequate explanation of the differentiation between employees and independent contractors [269] and changing social conditions by which tasks formerly performed by employees are increasingly performed by contractors. In the light of the way in which these proceedings were conducted, it would not be appropriate to venture upon such a re-examination in this case.

No point was taken by the appellant on the procedural course adopted by the Court of Appeal, as a prerequisite to entering judgment in favour of the respondent. Not only did this course require an amendment of the statement of claim to permit formulation of the case based on the Property Law Act. It also required the provision of an extension of time to bring the new claim following expiry of the ordinary three year limitation period [270] .

1. [1906] AC 428. See also Middleton and Wife v Hall (1913) 108 LT 804 at 805 2. See Altz v Leiberson (1922) 134 NE 703 at 704, per Judge Cardozo. 3. Sargent v Ross (1973) 308 A(2d) 528 at 530. 4. Quinn and Phillips, The Law of Landlord-Tenant: A Critical Evaluation of the Past with Guidelines for the Future, Fordham Law Review, vol 38 (1969) 225, at p 225. 5. Sargent v Ross (1973) 308 A(2d) 528 at 533. 6. Fleischmann v Grossman Holdings Ltd (1976) 16 OR(2d) 746; Basset Realty Ltd v Lindstrom (1979) 103 DLR(3d) 654; Zavaglia v Maq Holdings Ltd (1986) 6 BCLR(2d) 286. 7. Siney v Corporation of Dublin [1980] IR 400 8. Parker v South Australian Housing Trust (1986) 41 SASR 493 9. Harris v Northern Sandblasting Pty Ltd [1995] AustTorts Rep ¶81-365 at 62,736; see also Thomas v Bergin [1986] 2 Qd R 478 10. Hart v Windsor (1843) 12 M& W 68 [152 ER 1114]; cf Collins v Hopkins [1923] 2 KB 617 11. See, eg, Atiyah, Vicarious Liability in the Law of Torts (1967), p 333; Harris v Northern Sandblasting Pty Ltd [1995] AustTorts Rep ¶81-365 at 62,726-62,727, per Fitzgerald P; cf McKendrick, Vicarious Liability and Independent Contractors - A Re-examination, Modern Law Review, vol 53 (1990) 770; Swanton, Non-delegable Duties: Liability for the Negligence of Independent Contractors, Journal of Contract Law, vol 4 (1991) 183. 12. Balkin and Davis, Law of Torts, 2nd ed (1996), pp 756-757; Trindade and Cane, The Law of Torts in Australia, 2nd ed (1993), pp 713-714. 13. Swanton, Non-delegable Duties: Liability for the Negligence of Independent Contractors, Journal of Contract Law, vol 4 (1991) 183, at p 189. 14. Fleming, The Law of Torts, 8th ed (1992), p 389. 15. Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 24 16. Harris v Northern Sandblasting Pty Ltd [1995] AustTorts Rep ¶81-365 at 62,743-62,744, per McPherson JA.

The appellant kept its eyes fixed on the important points presented by the appeal, namely the liability of a landlord to a family member of a tenant, whether by common law or by statute; whether for the individual default of the landlord or liability for the performance of a non-delegable duty; whether under the Residential Tenancies Act or the Property Law Act. To these questions I now turn.

The landlord was not liable for a failure to inspect

It is convenient to dispose first of a point raised by the respondent in a notice of contention. This suggested that she was entitled to succeed upon an argument not decided in her favour by any of the judges in the Court of Appeal. This was that the appellant had failed to undertake a simple inspection which, had it been carried out, would have revealed the disconnected earth wires at the neutral link which resulted in the failure of the primary safety system governing the operation of the fuses. Had that system worked, as intended, a fuse would have blown when the stove element short-circuited. That would have prevented the exposure of the respondent to the risk of the electric shock which occurred.

To support this argument, the respondent relied on a series of "proximity factors" collected by Fitzgerald P in his reasons [271] . These included the fact that the appellant let the dwelling-house for reward; that it was let for immediate occupation as a family home; that the respondent was an infant member of the tenants' family; that the appellant had obligations with respect to the premises under the Residential Tenancies Act; that electricity is a potentially dangerous substance; that the defect in the earthing safety system was readily ascertainable; that there was nothing which alerted the respondent or her family to the risk that the earthing system or the stove was not functioning safely; that the fault in the stove resulted from the negligence of the appellant's contractor; and that the appellant did not cause the earth safety system to be checked.

1. Harris v Northern Sandblasting Pty Ltd [1995] AustTorts Rep ¶81-365 at 62,728.

The judges below were correct to place no reliance on this ground. Unless liability can be found in the appellant on the basis of a "special" duty of care of a non-delegable kind, or on the basis of breach of statutory duty, the general principles of negligence would not be sufficient to support the asserted liability of the appellant on the basis of a want of the exercise of reasonable care.

There are many reasons for this conclusion. The imposition of a duty of regular and repeated inspections of domestic electricity systems was sustained neither by evidence of common practice nor by commonsense. Moreover, the efficacy of any such practice would depend on the frequency and timing of the inspections [272] . The hot plate on the stove had been tested but two days before the respondent sustained her injuries. Unless an inspection had providentially taken place in the interval of time between Mr Briggs' negligent work and the injury, it would not have averted the coincidence of circumstances which led to the respondent's electric shock.

1. Harris v Northern Sandblasting Pty Ltd [1995] AustTorts Rep ¶81-365 at 62,736; cf Stannus v Graham [1994] AustTorts Rep ¶81-293 at 61,565.

The argument about a suggested duty of electricity inspections could not stop there. If correct in principle, it would require regular inspections against the risk of other perils, eg gas supply, floorboards, balustrades, etc. In the absence of evidence about the prevalence of, and need for, any such inspections of rented accommodation, there was no foundation for imposing such a duty on landlords leasing residential premises [273] . The fault in the neutral link would not have been obvious to an untrained observer such as the appellant. Indeed, the law in Queensland forbade anyone but a qualified person from engaging in the work of electrical repair [274] . Yet this is precisely the repair which the appellant promptly authorised once a defect was reported to it by the tenants in possession. It cannot be said that the appellant's admitted duty of care was breached in a way that caused the respondent's injuries by a failure of inspection on the part of the appellant. Whatever else the conceded duty of care required, it did not oblige a landlord to institute a system of inspections against the off-chance that a defect might be found in the electrical earthing system of which defect it had no notice. The precaution which the appellant took, when alerted to an electrical problem, was that which reasonable care required. It engaged a qualified electrical contractor, apparently with the requisite skills.

1. Harris v Northern Sandblasting Pty Ltd [1995] AustTorts Rep ¶81-365 at 62,736, per McPherson JA; at 62,747, per Pincus JA. 2. Electricity Act 1976 Q, s 322(i).

Landlord and tenant and the suggested "special duty" of care

The notion that some relationships are such as to impose on the dominant party a "special duty" of care at common law which cannot be delegated to independent contractors or employees has been traced [275] to Pickard v Smith [276] . It was there held that the duty of an employer to an employee was "personal". The fact that the employer entrusted the discharge of the duty to another employee who neglected it furnished no excuse. When this approach was followed in Dalton v Angus & Co [277] , in the different context of a neighbour's right of support for land, it afforded the starting point for the gradual emergence of a number of categories of relationship where the duty of care was classified as "special" [278] . The obligation in such cases was held to be a personal one to ensure that the duty was fulfilled [279] . Although, of its nature, it might have to be performed by servants or agents, its discharge could not be escaped by delegation. The party owing the duty was liable both for its own personal negligence and for any negligence on the part of its delegate [280] .

1. Kondis v State Transport Authority (1984) 154 CLR 672 at 684, per Mason J. 2. (1861) 10 CB (NS) 470 [142 ER 535]. 3. (1881) 6 App Cas 740 at 829. 4. Kondis v State Transport Authority (1984) 154 CLR 672 at 681, 684. 5. McDermid v Nash Dredging & Reclamation Co Ltd [1987] AC 906 at 919 6. McDermid v Nash Dredging & Reclamation Co Ltd [1987] AC 906 at 919

Academic writers have been critical of the failure of courts to explain clearly the precise characteristics of relationships said to justify the imposition of the exceptional non-delegable duty of care [281] . Judges [282] and commentators [283] have admitted that it is not always easy to identify the boundaries of the categories of non-delegable duty. Various criteria are nominated, ranging from the superior capacity of the defendant to bear the risk of mishap [284] ; its greater power to see that care is taken so as to avoid mishap [285] ; the special obligations which it is proper to attach to extra-hazardous activities [286] ; and the special dependence or vulnerability of the person to whom the duty is owed if it is not discharged [287] . Each of these considerations may be relevant in the case of particular categories accepted as falling within this class. Whilst they help to describe the idea which lies behind the imposition of a "special" duty of care, they do not define with precision the circumstances where the special duty will be imposed by law.

1. Swanton, Non-delegable Duties: Liability for the Negligence of Independent Contractors, Journal of Contract Law, vol 4 (1991) 183, citing Williams, Liability for Independent Contractors [1956] Cambridge Law Journal 180, at pp 183-184. 2. Voli v Inglewood Shire Council (1963) 110 CLR 74 at 95, per Windeyer J. 3. Swanton, Non-delegable Duties: Liability for the Negligence of Independent Contractors, Journal of Contract Law, vol 4 (1991) 183, at p 189. 4. Swanton, Non-delegable Duties: Liability for the Negligence of Independent Contractors, Journal of Contract Law, vol 4 (1991) 183, at pp 193, 197. 5. Swanton, Non-delegable Duties: Liability for the Negligence of Independent Contractors, Journal of Contract Law, vol 4 (1991) 183, at pp 192-193. 6. Bower v Peate (1876) 1 QB 321 at 326-327 7. Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 551

In a number of analogous areas of common law doctrine, this Court has recently attempted to replace categories with concepts [288] . Doing so promotes a more coherent and principled application and development of the common law. In the present case, the parties did not propose the adoption of a definition or of hard and fast criteria. That task must be left to the future. Instead, the Court was taken to the categories which have already achieved recognition in Australia (such as employer/employee [289] ; hospital/patient [290] ; school/pupil [291] ; and possibly occupier/ contractual entrant) [292] . By analogy with these categories, and with cases involving extra hazardous activities on land [293] , the Court was invited to push the boundaries of special duty further so as to include the relationship of landlord and tenant. At least in respect of landlords of residential property, and for the protection of the family and invitees of tenants, it was submitted that a special duty of care existed. It could not be discharged by delegating its performance, whether to an employee or to an individual independent contractor. The duty of the landlord in such cases was to ensure that the obligation was carried out.

1. eg, Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 at 17-20 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 484-488 2. Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 44 3. Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 4. The Commonwealth v Introvigne (1982) 150 CLR 258 5. Voli v Inglewood Shire Council (1963) 110 CLR 74 at 92-94 Kondis v State Transport Authority (1984) 154 CLR 672 at 686, 687; Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 6. Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520But see Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 29-30

In support of this submission (which was accepted by Fitzgerald P) the respondent relied on passages in this Court's reasons in Kondis v State Transport Authority [294] and Burnie Port Authority v General Jones Pty Ltd [295] . In Kondis [296] , Mason J (with whom Deane and Dawson JJ agreed) started with the proposition in The Commonwealth v Introvigne [297] that "the law has, for various reasons imposed a special duty on persons in certain situations to take particular precautions for the safety of others". His Honour derived this principle from the categories which had previously been accepted [298] :

[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. 1. (1984) 154 CLR 672. 2. (1994) 179 CLR 520. 3. (1984) 154 CLR 672 at 687. 4. (1982) 150 CLR 258 at 271. 5. Kondis v State Transport Authority (1984) 154 CLR 672 at 687Murphy J (at 690) favoured an expansion of the categories of non-delegable duty to "undertakings such as ship building, railway operations, mining and the construction industry", but expressly excluded "domestic operations". This case is arguably within that exclusion; cf Stoneman v Lyons (1975) 133 CLR 550 at 574-576

This formulation exhibits an element of circularity. It has not gone without criticism [299] . On the other hand, earlier attempts to describe the boundaries of the duty of care have also involved circularity [300] .

1. eg, Balkin and Davis, Law of Torts, 2nd ed (1996), pp 752-753. 2. Including the well-known passage in Donoghue v Stevenson [1932] AC 562 at 580See Downey, Incrementalism in Tort [1992] New Zealand Law Journal 113; Stone, Legal System and Lawyers' Reasonings (1964), pp 258-260.

An attempt to develop the concept of non-delegable duty further was made in Burnie Port Authority [301] . Mason CJ, Deane, Dawson, Toohey and Gaudron JJ remarked that the common element giving rise to the special responsibility could conveniently be referred to as "the central element of control" [302] :

Viewed from the perspective of the person to whom the duty is owed, the relationship of proximity giving rise to the non-delegable duty of care in such cases is marked by special dependence or vulnerability on the part of that person [303]

He or she is specially vulnerable to danger if reasonable precautions are not taken in relation to what is done on the premises. He or she is specially dependent upon the person in control of the premises to ensure that such reasonable precautions are in fact taken. Commonly, he or she will have neither the right nor the opportunity to exercise control over, or even to have foreknowledge of, what is done or allowed by the other party within the premises.

The foundations of the principle were suggested to lie in fairness (ie to the vulnerable) and utility (ie for the avoidance of harm). 1. (1994) 179 CLR 520 at 550-554. 2. Burnie Port Authority (1994) 179 CLR 520 at 551. 3. The Commonwealth v Introvigne (1982) 150 CLR 258 at 271, per Mason J.

Arguments for expanding "special duties" to include landlords

In submitting that, by analogous reasoning, this Court should now accept a new category of landlord and tenant as giving rise to a "special duty of care", the respondent pointed to the following considerations of legal principle and legal policy:

1. Within the principles stated in Kondis and Burnie Port Authority , the family of a tenant of residential premises would ordinarily be specially dependent on a landlord as the person in ultimate control of the premises. They would have only limited rights to exercise control over the premises themselves. In the present case, they had no right to effect significant repairs to the electrical wiring. In such matters, they were reliant on the landlord.

2. The landlord was obliged by statute to maintain the premises "in a condition fit for human habitation" [304] or "reasonably fit for human habitation" [305] . Quite apart from the direct reliance upon legislation to give rise to a cause of action in favour of those within their protection (dealt with below) the respondent invoked the statutory obligations to give content to the common law duty of the landlord. Premises with inadequate and dangerous electrical wiring, liable to cause electric shock to a tenant, or the tenant's family and visitors, would not be "fit for human habitation" within the statutory requirements. Even if, on their proper analysis, the statutes were confined to affording contractual benefits to the tenants alone, such would not be the case in respect of the common law duty which would extend, at least, to the tenants' family residing with them.

3. Extending the "special" duty of care to a landlord in this situation would have a number of practical advantages. Ordinarily, a landlord would be in a better position to obtain insurance. Such insurance would be a business cost of the letting. Because of the statutory obligations already imposed on landlords, it could be assumed that many, or most, would prudently have secured insurance. Insurance by contractors might be more problematical. Imposing a non-delegable duty on landlords would help to encourage high standards of care in the provision of rented premises, the choice of reliable contractors to inspect regularly the safety of the premises and speedy attention to complaints about faults having a potential to cause harm. Assigning a "special" duty of care to the landlord would also fix the obligations on a readily identifiable person, being the person with the ultimate control of the premises and their safety. It would acknowledge that, for some activities, such as electrical repair, the landlord would of necessity be obliged to rely on contractors. But it would protect tenants, as a generally vulnerable group, from inadequate or negligent performance by contractors of their duties. Although there is a need for low cost housing, the law should not condone the provision of such premises in an unsafe state. The commercial and contractual nature of the relationship [306] should give rise, where necessary, to an obligation upon the landlord to carry the loss rather than to impose such a burden upon the more vulnerable tenant and the tenant's family and visitors.

1. Residential Tenancies Act 1975 Q, s 7(a)(ii). 2. Property Law Act 1974 Q, s 106(1)(a). 3. Voli v Inglewood Shire Council (1963) 110 CLR 74 at 93Windeyer J held that persons entitled to the benefit of a higher duty include not only those strictly privy to the contract with the occupier but also those for whose entry the occupier received payment; cf Swanton, Non-delegable Duties: Liability for the Negligence of Independent Contractors, Journal of Contract Law, vol 4 (1991) 183, at p 199.

There is force in these arguments. They derive a certain amount of support from judicial observations in other jurisdictions [10] . However, care must be observed in the use of such decisions. They are usually much influenced by the particular problems before the courts and sometimes by local statutory requirements. Occasionally they have been affected by concessions, recorded in the reports, which, in turn, may have been influenced by local legislation [11] .

1. eg, Winnipeg Condominium Corporation No 36 v Bird Construction Co (1995) 121 DLR(4th) 193; Invercargill City Council v Hamlin [1994] 3 NZLR 513affirmed by the Privy Council [1996] AC 624; Sargent v Ross (1973) 308 A(2d) 528. See also Becker v IRM Corporation (1985) 698 P 2d 116; Muro v Superior Court (1986) 229 Cal Rptr 383. The reasoning in these Californian cases turns on the assimilation of the position of the modern residential tenant to that of the consumer of manufactured products, under the law as it has developed in the United States. 2. Basset Realty Ltd v Lindstrom (1979) 103 DLR(3d) 654 at 663.

Reasons for rejecting the "special duty" in this case

In my view this Court would not be warranted in creating a new category of "special" duty of care owed by landlords to tenants, in cases such as the present. My reasons are as follows:

1. Despite the existence of various manifestations of "special" duties of care and non-delegable duties for 130 years, it has not hitherto been decided in this country that the landlord and tenant relationship, as such, is to be so classified. On the contrary, until quite recently, it would generally have been believed to be the common law in Australia that landlords were entitled to a large measure of immunity, afforded to them by such decisions as Cavalier v Pope [12] . In that case, the wife of a tenant fell through a defective kitchen floor in a dilapidated house. The landlord had expressly promised the tenant to repair the floor. He failed to carry out his promise [13] . The tenant, in his own action, recovered damages for the cost of medical treatment of his wife. But the wife's action failed. It did so, apparently, upon two bases. The first was that the wife was not a party to the tenancy agreement. The second was that there was no general duty in law on the part of a landlord to take reasonable care to prevent injury to a tenant or other persons on the premises, occasioned by their defective condition. The House of Lords applied a longstanding rule that, fraud apart, the only remedy in such a case was possessed by the tenant and then only upon the contractual provision, if any [14] .

1. [1906] AC 428; cf Golob v Pasinsky (1904) 70 NE 973, cited in Altz v Leiberson (1922) 134 NE 703 2. See Cavalier v Pope [1906] AC 428 at 429 3. cf Robbins v Jones (1863) 15 CB(NS) 221 at 240 [143 ER 768 at 776].

It was therefore open to the appellant, in combating the suggestion of a "special" duty of care, to point out that, until recently, the common law, far from recognising such a "special" duty, appeared to recognise no duty at all. Indeed, it was not until 1985, in Parker v South Australian Housing Trust [15] that an Australian court of high authority held that the rule in Cavalier v Pope was no longer part of the common law in this country. It is one thing for a court to hold (as was done in Parker ) that a landlord is liable in negligence for injury to a child burnt on a stove, whose defects had been called to notice but which remained unrepaired. It is quite a different thing to hold a landlord liable where it had attended promptly to a complaint and did so by the only means lawfully available to it, viz by the provision of a qualified electrical contractor. It is true that, occasionally, the common law takes bold steps when "layers of sediment which may have accumulated" need to be overcome [16] . However, normally it moves forward by modest steps relying upon analogous reasoning [17] . Although views may differ on the point, I would not regard the expansion of the law on non-delegable duties by the creation of a new category of landlord and tenant to be an incremental step [18] . Against the background of the previous, long held understanding of the scope of the duties owed by landlords to their tenants at common law, and the wide diversity of landlord and tenant relationships that would be affected, such a step would not be within the limits of permissible judicial lawmaking. To advance from immunity to strict liability within so short a time and without warning would ordinarily require the sanction of legislation.

1. (1986) 41 SASR 493. See also W D & H O Wills Pty Ltd v State Rail Authority (NSW) (unreported; Supreme Court of NSW (Newman J); 18 August 1995). 2. Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 at 123, per Mason CJ and Wilson J. 3. Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 481cf Downey, Incrementalism in Tort [1992] New Zealand Law Journal 113. 4. cf Green, Tort Law Public Law in Disguise, Texas Law Review, vol 38 (1959) 1; Smith and Burns, Donoghue v Stevenson - The Not So Golden Anniversary, Modern Law Review, vol 46 (1983) 147; Amirthalingam and Faunce, Patching up proximity: problems with the judicial creation of a new medical duty to rescue, Torts Law Journal, vol 5 (1997) 27, at pp 33, 39-40; Mullender, Negligence, the Public Interest and the Proportionality Principle, Tort Law Review, vol 5 (1997) 9.

2. In so far as Parliament had spoken on this subject, at least in the legislation specifically addressed to the sub-category of residential accommodation, the Residential Tenancies Act confined the duty imposed by it, in s 7, to the contract. It did this by including the landlord's statutory obligation "to provide and maintain the dwelling-house in good tenantable repair and in a condition fit for human habitation" within the specified "implied obligations" incorporated by the Residential Tenancies Act in a relevant tenancy agreement [19] . It did so notwithstanding anything in the agreement. It held back from imposing, in terms, the kind of "special" duty of care now urged by the respondent.

3. 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.

1. Residential Tenancies Act 1975 Q, s 8(1)(i); Property Law Act 1974 Q, s 107(a). 2. cf Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 551 3. cf Kondis v State Transport Authority (1984) 154 CLR 672 at 688 4. cf Voli v Inglewood Shire Council (1963) 110 CLR 74 at 84 Bryan v Maloney (1995) 182 CLR 609 at 619-620 5. (1994) 179 CLR 520 at 551.

4. There are other reasons of legal policy or principle which tend to restrain the creation of a new sub-category of non-delegable duty in this case. I will assume that it would be possible to define, in a satisfactory way, a sub-species of the landlord and tenant relationship attracting the duty. I will further assume that the class to whom the duty was owed could be expressed with acceptable precision. However, the result would still be the introduction of a new burden on landlords which, on legal authority accepted until the recent past, they would not reasonably have anticipated. Such a burden would necessarily have a retrospective operation. Given the wide range of persons who constitute landlords of the proposed class, it could be anticipated that some would not be insured. Even those insured might find their cover limited to established liability, as under the Residential Tenancies Act. This Court has no way of estimating the economic consequences of inventing a new category of "special" duty. Nevertheless such consequences would clearly include the potential costs of imposing new duties of inspection; of withdrawing some low cost accommodation from the market; and of obtaining liability insurance to meet the relatively rare case that the insurance of a qualified contractor, engaged by the landlord, proved insufficient for the peculiar risk in a particular case. As one writer has pointed out [25] :

Indiscriminate extension of non-delegable duties can lead to the wastefulness of circuity of action and double insurance, and hardship for those employers of independent contractors who are not substantial enterprises or not in a strategic position to insure against the cost of accidents. 1. Swanton, Non-delegable Duties: Liability for the Negligence of Independent Contractors, Journal of Contract Law, vol 4 (1991) 183, at p 186.

5. An occupier's duty has been stated by this Court ordinarily to be "to take reasonable care to avoid a foreseeable risk of injury" [26] . It would be anomalous to hold a landlord, even of a residential tenancy, liable at common law to discharge personally a special duty to the tenant (and the tenant's family and visitors) although not actually in occupation. It would be even more anomalous to fix the landlord with liability in negligence where it is found that the landlord responded to a signified risk in the precise way that a reasonable person would do in the circumstances. Although no decision of this Court determines the point, it is obviously relevant to remember what Mason J said in Kondis [27] :

[T]here is a stronger case for concluding that the employer's duty is non-delegable than there is for reaching the same conclusion in the case of the invitor. It is not immediately obvious that it is appropriate to impose liability on the occupier of a house for injury caused to an invitee by the negligence of an independent contractor, eg, in making or repairing an electrical installation carelessly, when it is reasonable for the occupier to rely on the reputed competence of the contractor in a field in which the occupier has no expert knowledge. The foregoing remarks were obiter. But they suggest that, special undertakings aside [28] , a landlord ordinarily lacks the "central element of control" of the situation of risk which is a pre-condition to the imposition of a non-delegable duty. Responding to the influx of populations from rural England to towns where rental premises had to be found, the common law might have developed in such a way. In fact, it adopted precisely the opposite approach. It must be left to statute, not the courts, to effect a change so radical as from the previous immunity to absolute liability. 1. Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488 2. (1984) 154 CLR 672 at 688. 3. cf Meyers v Easton (1878) 4 VLR 283 at 285

6. One further point should be mentioned in disposing of the claim at common law. Brennan CJ and Gaudron J have concluded that the landlord was obliged by the common law to see that the premises at the time the tenants went into possession were as safe for habitation as reasonable care and skill on the part of anyone could make them, excluding only defects which were not reasonably discoverable. This is not the basis upon which the trial judge or any judge of the Court of Appeal dealt with the matter. Indeed, there was no finding that the major earth wire had become disconnected before the family went into possession [29] . Further, the trial judge found that it had not been proved that the landlord, as a lay person and not an expert, knew or ought to have known of anything which, in prudence, required an inspection. Upon this approach, the fundamental question remains. Is the landlord's duty, in effect, that of an insurer of the tenants or does it discharge its obligation of reasonable care and skill, in respect of possible electrical defects, in the only way reasonably and lawfully available to it? And the only way that a reasonable landlord in this country would ordinarily act? This is by engaging a licensed electrical contractor. Whether presented as a duty arising out of, and implied into, the contract of lease or as a duty owed by the tort of negligence, the question remains the same. Unless there is a contractual obligation imposing a duty higher than reasonable care, or unless the relationship is now to be assigned, for the first time to the categories of "non delegable duties", the landlord must be excused from liability if it engages a suitably qualified electrical contractor. Not only did the appellant do so here. There was no other way it could lawfully have performed its obligations. If the standard is one of reasonable care, the landlord in this case met that standard.

1. Derrington J at first instance found that "if for the purpose of a test a Board officer had attended to the disconnection and reconnection of the neutral link, the work would have been properly performed so that any existing defect would have been cured and no further disconnection would have occurred before the accident". He went on to find "[t]he defect could have come about at any time by a loosening over a period of time of the screw holding the earth-wire in its seat so that the necessary contact in the link was lost [s]uch a loosening could occur spontaneously though gradually until the retentive force of the screw was exceeded by the force applied by the weight of the tangled nest when, it might be expected, the withdrawal of the wire from its socket in the link would follow fairly rapidly" Harris v Briggs [1994] AustTorts Rep ¶81,301. However, this was said in the context of dismissing the claim against the Board not the claim against the landlord. Obviously, what might reasonably be expected of the Board and its officers, and what they would notice on an inspection, when compared to a landlord without electrical expertise, are two entirely different matters.

The respondent's claim at common law was correctly dismissed by the primary judge and by the majority of the Court of Appeal.

The respondent, alternatively, sought to sustain her judgment based upon the provisions of Queensland legislation imposing certain duties upon landlords in that State. The position is complicated by the fact that two statutes were in operation at the relevant time, although one of them has since been repealed [30] . The respondent relied principally upon s 106(1) of the Property Law Act 1974 Q. That sub-section states, relevantly:

In a lease of premises for a term of three years or for any less period there is an obligation -

(a) on the part of the lessor, in the case of a lease of premises for the purpose or principally for the purpose of human habitation, to provide and maintain the premises or such part as is let for such purpose in a condition reasonably fit for human habitation.

The sub-section appears under the heading "Obligations in Short Leases". It contains, in par (b), obligations on the part of the lessee "to care for the premises in the manner of a reasonable tenant" and "to repair damage caused by [the lessee] or by persons coming on the premises with [the lessee's] permission". By s 106(2) the section applies to leases made after the commencement of the Act and "notwithstanding any other provision of this Act or any agreement to the contrary". 1. Residential Tenancies Act 1975 Q was repealed by the Residential Tenancies Act 1994 Q, s 342 with effect from 3 April 1995.

The respondent also relied on a cause of action said to arise by virtue of s 7 of the Residential Tenancies Act 1975 Q. Relevantly, the respondent relied on s 7(a)(ii) and (iii):

Notwithstanding any agreement between a landlord and tenant, in every tenancy agreement entered into after the commencement of this Act there shall be implied obligations -

(ii) to provide and, during the tenancy, maintain the dwelling-house in good tenantable repair and in a condition fit for human habitation;

(iii) to maintain during the tenancy fixtures, fittings, goods and chattels let with the dwelling-house in good tenantable repair;

Section 7(b) of the Residential Tenancies Act contains a number of implied obligations on the part of the tenant. These include to care for the dwelling-house "and fixtures, fittings, goods and chattels let therewith in the manner of a reasonable tenant" and to repair damage "caused by the wilful or negligent conduct of the tenant or persons coming into or upon the dwelling-house with his consent" (s 7(b)(i), (ii)). But there are added, in the case both of the landlord and of the tenant, other obligations which find no equivalent in s 106 of the Property Law Act.

It will be observed that the obligations implied by s 7 of the Residential Tenancies Act attach to "every tenancy agreement". A "tenancy agreement" is defined by s 6 of that Act to mean "an agreement between a landlord and tenant for the letting of a dwelling-house". The words "dwelling-house" are defined to mean "premises let for the purpose or principally for the purpose of residence". Certain places are expressly included (such as units or parts of multiple houses). Other places are expressly excluded (such as licensed premises or clubs, premises ordinarily let for holiday purposes, and premises for which the tenant is a mortgagor or purchaser under a contract for sale) [31] . An attempt is made in s 5 of the Residential Tenancies Act to clarify its relationship to the Property Law Act enacted in the preceding year:

5.(1) Notwithstanding the Property Law Act 1974 and save as otherwise provided in this Act, this Act applies to -

(a) dwelling-houses and tenancies of dwelling-houses;

(b) tenancy agreements entered into or renewed before and valid and subsisting at the commencement of this Act;

(c) tenancy agreements entered into after the commencement of this Act.

One further provision of a general character, which appears in the Property Law Act must be noted. In s 55 provision is made to overcome the common law rule that "only a party to a contract can sue on it and consideration must move from the promisee" to give rise to enforcement [32] . The section is one of a series belatedly enacted in a number of jurisdictions to respond to repeated criticism of the rules of privity of contract [33] . The pertinent provisions of s 55 appear in the reasons of Brennan CJ so I will not repeat them, except to notice additionally the terms of sub-ss (3) and (6)(a):

(a) the beneficiary shall be entitled in his own name to such remedies and relief as may be just and convenient for the enforcement of the duty of the promisor; and relief shall not be refused solely on the ground that, as against the promisor, the beneficiary may be a volunteer;

(b) the beneficiary shall be bound by the promise and subject to a duty enforceable against him in his own name to do or refrain from doing such act or acts (if any) as may by the terms of the promise be required of him;

(a) "acceptance" means an assent by words or conduct communicated by or on behalf of the beneficiary to the promisor, or to some person authorized on his behalf, in the manner (if any), and within the time, specified in the promise or, if no time is specified, within a reasonable time of the promise coming to the notice of the beneficiary;

1. Section 6, definition of dwelling-house. 2. Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 at 113 3. Trident General (1988) 165 CLR 107 at 117-118.

Against the background of the foregoing statutory provisions the following issues are raised:

Did the Property Law Act apply to the lease entered between the appellant and the tenants or did the Residential Tenancies Act apply to the exclusion of the Property Law Act?

If the Residential Tenancies Act alone applied, are the terms of s 7 of that Act such as to give rise to a cause of action enforceable for the breach or merely an action for breach of the terms of the contract of lease implied by the section?

May the respondent (as a stranger to the contract of lease) recover from the appellant (as landlord) for the damage which she suffered by reason of a breach of the obligations implied by the Residential Tenancies Act or, by the common law and the language of that Act, may the tenants alone recover for any breach of such implied obligations?

If upon its true construction, in the case of a breach, s 7(a) of the Residential Tenancies Act gives rise to remedies only in the tenants, may the respondent, as beneficiary of the promises implied into the tenancy agreement by that Act, obtain relief pursuant to s 55 of the Property Law Act?

If the respondent may enforce the obligations implied into the lease by the Residential Tenancies Act, is the duty of the landlord limited to attending to conditions of which it has reasonable notice? Is its duty limited to one of reasonable care or is it absolutely liable by virtue of the Residential Tenancies Act?

The answers to none of these questions can be given dogmatically. The overlap of the legislation, at the relevant time, creates an element of confusion which is not wholly relieved by examination either of the Law Reform Commission report which preceded the Acts [34] or the Parliamentary debates [35] which accompanied the enactment of the overlapping provisions [36] . Furthermore, the language and intended operation of the legislation is not entirely clear on its face. The applicable tests for deriving the legislative purpose are typically stated in very broad terms. In such circumstances, it is unsurprising that there have been divisions of judicial opinion which now persist in this Court. The overriding duty of the Court is to give effect to the purpose of the Queensland Parliament. Unfortunately, that purpose is not entirely clear.

1. Queensland Law Reform Commission, Property Law Reform, QLRC 16 (1973). 2. Queensland, Parliamentary Debates (Hansard), 13 November 1975, pp 1913-1915. 3. Section 106(1)(a) of the Property Law Act was amended to apply " in the case of a lease of premises for the purpose or principally for the purpose of human habitation" by s 10 of the Property Law Act Amendment Act 1975 Q.

I acknowledge that there are arguments to support the suggestion that, notwithstanding the passage of the Residential Tenancies Act, the Property Law Act also applied to the demised premises [4] . It is not as if Parliament overlooked the parallel legislation. Following the recommendation of the Queensland Law Reform Commission [5] the coming into force of the Property Law Act was deferred until 1 December 1975 [6] so that amendments could be incorporated into that Act by the Property Law Act Amendment Act 1975 Q. One of those amendments was the substitution of s 106(1)(a) in the Property Law Act in the terms stated, confining its application to premises let for human habitation. Originally the sub-section had extended to three year leases of all kinds. The Residential Tenancies Act was passed soon thereafter. The interrelationship of the two Acts was foreshadowed by s 5(1) of the later statute. This was not, therefore, a case of legislative oversight.

1. See Harris v Northern Sandblasting Pty Ltd [1995] AustTorts Rep ¶81-365 at 62,740-62,742, per McPherson JA. 2. Queensland Law Reform Commission, Property Law Reform, QLRC 16 (1973), p 5. 3. Pursuant to s 1(2) of the Property Law Act.

There are two variations between the relevant obligations imposed respectively by s 106(1)(a) of the Property Law Act and s 7(a)(ii) of the Residential Tenancies Act relating to the fitness of premises for human habitation. The former Act requires that the conditions be "reasonably" fit for human habitation. The latter Act deleted the word "reasonably". More importantly, whereas s 7 of the Residential Tenancies Act operated, in terms, to imply the stated obligations into "every tenancy agreement", this is not the technique apparently used in s 106 of the Property Law Act. It simply states that there is "an obligation on the part of the lessor to provide and maintain the premises in a condition reasonably fit for human habitation". It was this difference which attracted McPherson JA to the application of s 106 of the Property Law Act in this case. By imposing a direct obligation on the lessor, that Act gave rise, in his Honour's opinion, to a cause of action in any person whom that obligation was intended to benefit. This avoided the problems of privity of contract which would arise for any attempt by the respondent to enforce the implied obligations incorporated in the tenancy agreement with her parents by virtue of s 7 of the Residential Tenancies Act.

Whilst it is possible to argue that the two Acts were intended each to operate upon a single lease, such as the informal agreement between the appellant and the tenants, the better view is that where the particular provisions of the Residential Tenancies Act applied to the lease of a dwelling-house, its special requirements attached to the exclusion of the Property Law Act. In this conclusion I agree with the preferred interpretation of Fitzgerald P [7] and Pincus JA [8] in the Court of Appeal.

1. Harris v Northern Sandblasting Pty Ltd [1995] AustTorts Rep ¶81-365 at 62,724. 2. Harris v Northern Sandblasting Pty Ltd [1995] AustTorts Rep ¶81-365 at 62,748.

My opinion rests, in part, upon the difficulty of accepting that the Queensland Parliament would have had the purpose of imposing upon landlords and tenants two similar, but not identical, regimes of legal regulation. Ordinarily, where a special statute is enacted to deal with a particular sub-species of a legal problem, a general statute dealing with the ordinary incidents of the species will, to the necessary extent, be excluded or modified in order to give effect to Parliament's presumed particular purpose. By enacting a particular regime for tenancies of dwelling-houses, it seems more likely that Parliament intended that regime to apply conceding that there would be some other premises, also used for human habitation, which were the subject of leases and which were not "dwelling-houses" as so defined. Only to the latter would s 106 of the Property Law Act apply, at least so long as there was competition between the general provisions of the Property Law Act and the special provisions of the Residential Tenancies Act, enacted later. This conclusion makes it impossible to sustain the basis upon which, ultimately, McPherson JA supported his judgment in favour of the respondent.

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] :

We may be sure that the framers of this statute, when regulating tenement life, had uppermost in thought the care of those who are unable to care for themselves. The Legislature must have known that unless repairs in the rooms of the poor were made by the landlord, they would not be made by any one. The duty imposed became commensurate with the need. The right to seek redress is not limited to the city or its officers. The right extends to all whom there was a purpose to protect. 1. Fordham, Breach of Statutory Duty - A Diminishing Tort [1996] Singapore Journal of Legal Studies 362, at p 364. 2. cf Perpetual Executors & Trustees Association of Australia Ltd v Federal Commissioner of Taxation (1948) 77 CLR 1 at 29-30 Butler v Attorney-General (Vict) (1961) 106 CLR 268 at 276 Cutler v Wandsworth Stadium Ltd [1949] AC 398 at 410 3. cf Trindade and Cane, The Law of Torts in Australia, 2nd ed (1993), pp 664-665. 4. (1922) 134 NE 703 at 704.

Since those words were written in 1922, there has been a diminution in parliamentary reliance upon public officers to enforce provisions such as those in s 7 of the Residential Tenancies Act. It should not be inferred that such protective provisions were enacted as pious solecisms. Judge Cardozo in Altz v Leiberson [13] also remarked that "[n]o doubt the defect itself must be one that has relation to the maintenance of the building as a tenantable habitation". To like effect, the obligation implied by s 7(a)(ii) would give rise to a right of action only in those cases encompassed by the landlord's obligation to provide and maintain the dwelling-house "in a condition fit for human habitation". Relevantly, this would extend to the inhabitants intended to occupy, ie inhabit, the premises. It would therefore include, at least, the tenants and their family. Whether it would extend further to visitors and other "persons coming into or upon the dwelling-house with [the tenant's] consent" (s 7(b)(ii)) need not be answered in this case. But it is necessarily implied in a statutory obligation to provide and maintain premises "in a condition fit for human habitation" that the beneficiaries of that requirement will be those humans who ordinarily inhabit the premises. Because the premises are residential dwelling-houses as defined, it requires no imagination to conclude that Parliament's purpose in enacting s 7(a)(ii) of the Residential Tenancies Act, was to protect and benefit a person such as the respondent, being a member of the tenants' family.

1. (1922) 134 NE 703 at 704; cf Fleischmann v Grossman Holdings Ltd (1976) 16 OR(2d) 746 at 749.

This conclusion raises the appellant's argument that, upon its true construction, s 7 of the Residential Tenancies Act afforded no legally enforceable advantage to a third party such as the respondent but only to the tenants themselves. In support of this argument it was pointed out that, in terms, s 7 did no more than to modify the "agreement between a landlord and tenant". It did not, as other legislation did, impose obligations directly upon the landlord or the tenant [14] . Instead, it effected a legislative purpose solely to modify the parties' agreement. Having acted in this way, when an alternative legislative technique was available, the Residential Tenancies Act should be construed as accepting the ordinary principles of privity of contract. Various possibilities were raised during argument to show that the apparent harshness of this proposition could have been circumvented by procedural steps open to the respondent [15] .

1. See Property Law Act, ss 105, 106. 2. For example by the respondent suing her parents and by their joining the landlord claiming indemnity under the implied obligations contained in s 7 of the Residential Tenancies Act. It is unnecessary to consider whether this course would have been available.

The real task of the Court is to discover the purpose of the Queensland Parliament in enacting s 7(a)(ii) of the Residential Tenancies Act. Upon the argument of the appellant, if either of the nominated tenants had grasped the live tap and suffered electric shock, they could have sued for breach of the implied obligation of fitness for human habitation for it was in the contract of lease to which they were parties. But because it was their daughter who did so, she was outside the protection which Parliament had enacted. This would be a curious consequence, especially in the context of a protective provision designed to ensure the fitness for "human habitation" of residential dwelling-houses in which, typically, tenants and their families live. Such an odd differentiation of protection would not readily be imputed to Parliament.

Similar problems have arisen in Canada where tenants and members of their family have been injured. They have sued relying upon legislation equivalent to the Residential Tenancies Act 1975 Q. Thus in Gaul v King [16] , the Appeal Division of the Nova Scotia Supreme Court had to decide whether the provisions of the Residential Tenancies Act 1970 NSW gave rise to a cause of action and, if so, who was within the scope of the protection. Jones JA, delivering the judgment of the Court, stated [17] :

[I] have no difficulty in concluding that the Residential Tenancies Act gives rise to a right of action. That is the clear trend of the cases in the United States and Canada. In England prior to the enactment of the Occupiers Liability Act, 1957 UK, c 31, the trend was similar, subject to the requirements of notice

While the duty under s 6 of the Act is imposed as a condition of the agreement I am of the view that the right of recovery is not restricted to contract. The Ontario Act appears to be somewhat wider. Under both statutes the liability springs from the enactment and not from the contract. The duty to repair is made a statutory condition and cannot be altered by the parties. While the statute clearly gives rise to a right of action in contract I do not think that the Legislature intended thereby to exclude a right of action in tort. The result is to bring about a complete reversal of the position of the lessor from one of immunity to one of liability.

Jones JA held that the tenant and members of his household were within the class of persons intended to be protected by the statute and that the landlord owed a duty to them. 1. (1979) 103 DLR (3d) 233; cf Fleischmann v Grossman Holdings Ltd (1976) 16 OR(2d) 746 at 750. 2. Gaul v King (1979) 103 DLR(3d) 233 at 240-241.

This reasoning, on legislation not in my view relevantly different from the Residential Tenancies Act 1975 Q, has been repeatedly followed in Canada. It was applied by the Appeal Division of the Nova Scotia Supreme Court in Basset Realty Ltd v Lindstrom [18] . In that case, the local statute contained, as statutory condition (stat con) 1, the landlord's duty to "keep the premises in a good state of repair and fit for habitation". The similarity of the legislation is therefore obvious. In Zavaglia v Maq Holdings Ltd [19] , the primary judge accepted that Basset Realty established, within Canada that, "breach of stat con 1 of s 6(1) of the Residential Tenancies Act, 1970 NS c 13, gives rise to a tort action in favour of the tenant and members of his family" [20] . He held that the right of action did not extend to "visitors and friends of the tenant" [21] . This decision was affirmed by the Court of Appeal of British Columbia [22] . Nothing was said to cast doubt upon the holdings in Gaul or Basset Realty or the dicta extending the right of action on the statute to members of the tenant's immediate family.

1. (1979) 103 DLR (3d) 654 at 664-666. 2. (1983) 50 BCLR 204. 3. Zavaglia (1983) 50 BCLR 204 at 211 4. Zavaglia (1983) 50 BCLR 204 at 212 5. Zavaglia (1986) 6 BCLR(2d) 286.

Although the point can be argued both ways, I prefer the approach adopted in the Canadian decisions. The Queensland legislation is not relevantly different. The social purpose of the legislation is the same. So far as residential premises are concerned, that purpose is to ensure the fitness for human habitation of those who ordinarily reside in such premises. Only this construction avoids the offensive result that the tenants might invoke the Parliamentary guarantee of fitness for human habitation but not the members of their immediate family living with them in the demised premises let for their "habitation".

There is an alternative route to the same conclusion. It invokes the terms of s 55 of the Property Law Act set out above. In order to understand the purposes of that section, and the common law principles which it was intended to modify, it is necessary to look no further than the decision of this Court in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [23] . The section should be given effect to achieve the objectives of the Queensland Parliament in enacting it.

The appellant raised two objections to the respondent's reliance upon the section. The first was that it had not been relied upon at the trial. However, this is not a case where any relevant facts or interrogation of the respondent would have altered the position of the parties [24] . It was not suggested that the respondent specifically assented by words, addressed to the appellant, so as to accept the benefit of the contract between her parents (as tenants) and the appellant (as landlord). The only "conduct" within s 55(6)(a) of the Property Law Act relied upon by the respondent as constituting her "acceptance" was her conduct in accompanying her parents to occupation of the demised premises. As that conduct was not, and could not be, disputed, no procedural unfairness arises in permitting the respondent to raise s 55 of the Property Law Act after the trial.

The appellant accepted that s 55 was a law of general application. In its terms, it operated upon the promises made by the informal tenancy agreement reached between the parties. Its suggested inapplicability was said to be demonstrated by the unlikelihood that a "beneficiary" such as the respondent could be within the class intended to be "bound by the promise and subject to a duty enforceable against [her] in [her] own name" (s 55(3)(b)). A distinction must be drawn between the legal rights and obligations of an infant such as the respondent and the enforcement of such rights and obligations. But where, as here, the tenancy agreement between the appellant and the respondent's parents as tenants was obviously for her benefit, the purpose of s 55 of the Property Law Act extended to securing to her the entitlement to enforce the duties owed by the landlord to her parents as tenants. All that was required was her "acceptance" of her status as a beneficiary. By the Property Law Act, she could do this by "conduct" communicated to the landlord. The landlord knew that she had entered into possession of the demised premises with her parents. By s 55 of the Property Law Act, the difficulties of her enforcement of the obligations owed by the landlord to her parents as tenants were therefore overcome.

If the Residential Tenancies Act alone did not have that consequence (as I am inclined to think it did) the combination of the implied terms of the tenancy agreement and s 55 of the Property Law Act achieved the same result. The respondent was entitled to enforce the benefit of the implied term of the tenancy agreement that the landlord would provide and maintain the premises "in a condition fit for human habitation".

Requirement of "a condition fit for human habitation"

The respondent argued that premises which were subject to the electrification of garden taps, liable to occasion profound electric shock, were not "in a condition fit for human habitation". But two possible impediments to recovery remain. The first was not raised by the appellant but was noted by McPherson JA in the Court of Appeal.

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.

1. Murphy v Hurly [1922] 1 AC 369 at 387 Morgan v Liverpool Corporation [1927] 2 KB 131, affirmed McCarrick v Liverpool Corporation [1947] AC 219 at 230 O'Brien v Robinson [1973] AC 912 at 923 2. McCarrick v Liverpool Corporation [1947] AC 219 at 230 3. (1979) 103 DLR (3d) 233 at 240. 4. Fisher v Walters [1926] 2 KB 315 5. Murphy v Hurly [1922] 1 AC 369 at 389, 395.

That leaves the final question. Is the duty so imposed subject to a limitation of reasonableness? If so, the landlord's liability is not absolute but is restricted to ensuring that the condition of the premises is fit for human habitation to the extent that it is reasonable to expect of a landlord of such premises. It is this question which has given me the greatest difficulty. Upon the answer to it depends, in the approach which I favour, the outcome of the appeal.

There are arguments which support the respondent's proposition that the obligation is an absolute one. They include the apparently unqualified and objective expression "fit for human habitation"; the absence, in the case of the Residential Tenancies Act, of the word "reasonably" appearing in s 106 of the Property Law Act; the protective purpose of the provision in the context of dwelling-houses; and the argument of policy that the imposition of an absolute duty is the only effective way of ensuring that the purpose of avoiding the provision of dwelling-houses unfit for human habitation.

However, I am driven to the opposite conclusion by a number of considerations which I regard as much stronger.

1. The context of the imposition of an obligation to provide and maintain the dwelling-house "in a condition fit for human habitation" cannot be entirely ignored. It is by the introduction of an implied obligation into an agreement written between the landlord and the tenant which exists against the background of the common law. If the obligation of fitness for human habitation were intended to be absolute, so as to convert the landlord's former immunity to absolute liability, it might have been expected that Parliament would have prescribed in greater detail the content of that obligation. Because, by s 7(a)(i), the landlord is obliged to allow the tenant during the tenancy quiet enjoyment, the obligation to ensure fitness for human habitation must be one which is given content in circumstances where the landlord will often, or usually, be out of occupation.

2. This conclusion is reinforced by the other obligations implied by statute. None of them appears suitable to attract absolute duties. What is in question is not the qualification of the fitness for human habitation by what is "reasonable" but the modification of the governing words "provide and maintain" to the extent that is reasonable. In the context, and having regard to the other obligations imposed both on the landlord and on the tenant, it appears more likely that Parliament was imposing obligations which could reasonably be fulfilled rather than obligations exposing landlord and tenant alike to absolute duties.

3. The Canadian authority which accepts that the legislation equivalent to the Residential Tenancies Act gives rise to a statutory cause of action to extend to protect members of the tenant's immediate family has uniformly been construed as imposing a general duty of reasonable care, not an absolute duty. Thus in Gaul v King [30] , Jones JA, delivering the decision of the Appeal Division of the Nova Scotia Supreme Court said:

While it can be argued that the mandatory language of the Act does impose strict liability, I think the appropriate test to apply under our Residential Tenancies Act is the common duty of care. I do not think that the Legislature intended to impose liability without proving lack of care or diligence on the part of the person on whom the duty is imposed. In my opinion the landlord has a duty to see that the premises are as safe as reasonable care and skill can make them. This is not an absolute liability and does not cover defects, such as latent defects, which could not be discovered by the exercise of reasonable care and skill. As the landlord is responsible under the Act to keep the premises in good repair he will be liable for defects which are discoverable by the exercise of reasonable care and skill.

In concluding that the appropriate standard is reasonable care, I concur with the view expressed by the Ontario Court of Appeal in McQuestion that an interpretation of strict liability would place too heavy a burden on the lessor I think the test of reasonable care is the one which is most consistent with the provisions of our Act This will not impose an undue hardship on the landlord and will afford a reasonable measure of protection to the tenant.

The same conclusion was reached by a Court of five judges in Basset Realty Ltd v Lindstrom [31] . It is supported by other Canadian authority [32] . It is also supported by attributing to the Queensland Parliament the adoption of a standard of reasonableness in what it expects of landlords. Had it been intended to impose upon landlords a strict and absolute liability, as of an insurer, this would have been done in a provision differently written, supported by different background documentation and by Parliamentary speeches justifying such a substantial enlargement of landlords' obligations and liabilities.

1. (1979) 103 DLR (3d) 654 at 664-666. 2. McQuestion v Schneider (1975) 57 DLR(3d) 537; Fleischmann v Grossman Holdings Ltd (1976) 16 OR(2d) 746 at 749.

The appellant, as landlord, was therefore liable, including to the respondent, to provide and maintain the premises in a condition fit for human habitation. But this did not impose upon it an obligation to do something of which it was reasonably unaware. That the appellant was reasonably unaware of the precise defect in the wiring of its premises is plain from the evidence. No hint of any defect had been given when the premises were initially checked by the Board or when electricity supply was restored. Nor was there any indication of a defect when the appellant engaged an expert licensed electrician to attend to the complaint about the element of the stove. That complaint of itself was not one which would reasonably have put the appellant, as landlord, on notice of any risk that the wiring system was defective. There was nothing in it to alert the landlord to a danger that a domestic tap would become a hazardous conductor of electricity. In every other way the premises provided by the appellant were fit for human habitation. The appellant therefore complied with the implied obligation imported into its tenancy agreement with the tenants. Its failure to anticipate and to prevent the latent defect in the wiring system did not constitute a breach of the implied condition. Put another way, if the premises were, at the relevant time, not fit for human habitation, that was not by reason of any breach on the part of the landlord of the obligation, implied by the Residential Tenancies Act, to provide and maintain the premises in the condition required. It was the consequence of the electrician's negligence and defects in the wiring system of which neither the landlord nor the tenant had any notice.

The result is that the respondent cannot sustain the judgment favoured by the majority of the Court of Appeal whether on the basis of the common law or upon either of the statutes relied upon.

It was a term of the grant of special leave that the appellant should pay the respondent's costs in this Court whatever its outcome. Upon the return of the appeal, the appellant informed the Court that it did not seek its costs of the action at first instance or in the Court of Appeal.

The appeal should be allowed. The orders of the Court of Appeal of the Supreme Court of Queensland should be set aside. In lieu thereof this Court should order that the appeal to the Court of Appeal be dismissed save for the deletion from the orders of Derrington J, dated 1 June 1994, of the words "with costs, including reserved costs, if any, to be taxed" in respect of the order dismissing the plaintiff's action against the third defendant. The appellant should pay the respondent's costs of the appeal to this Court.