Jones v Bartlett

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

MARC JARRAD JONES   APPELLANT

AND

GRAHAM BARTLETT & ANOR  RESPONDENTS

Jones v Bartlett [2000] HCA 56
16 November 2000
P59/1999

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of Western Australia

Representation:

E M Heenan QC with C P Shanahan for the appellant (instructed by Butcher Paull & Calder)

M W Odes QC with S H Hay for the respondents (instructed by Phillips Fox)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Jones v Bartlett & Anor

Negligence – Duty of care – Person lawfully on premises injured by glass door – Scope of landlord's duty of care to a person who resides on premises – Scope of landlord's duty of care in respect of state of premises – Whether duty to have premises inspected by expert.

Contracts – Tenancy agreement – Whether s 11 of the Property Law Act 1969 (WA) allows a third party to sue for breach of tenancy agreement.

Statutory liability – Occupiers' liability – Whether landlord was an "occupier of premises" under s 5(1) of the Occupiers' Liability Act 1985 (WA) – Duty of landlord under s 9(1) of the Occupiers' Liability Act 1985 (WA).

Residential Tenancies Act 1987 (WA), s 42.
Property Law Act 1969 (WA), s 11.
Occupiers' Liability Act 1985 (WA), ss 5(1), 9(1).

Words and phrases – "occupier of premises".

1. GLEESON CJ.   The question in this appeal is whether the respondents, the owners of a dwelling house at Mt Pleasant in Western Australia, are liable to the appellant, the son of the tenants of the house, who injured himself by carelessly putting his knee through a glass door in the house.

2. Damages were agreed in the sum of $75,000.  At the trial in the District Court, the issue was liability. 

3. At first instance, Commissioner Reynolds found in favour of the appellant[1].  The decision was based upon the Occupiers' Liability Act 1985 (WA). A finding of contributory negligence was made against the appellant, and damages were reduced by fifty per cent. Judgment was entered for $37,500. An appeal to the Full Court of the Supreme Court of Western Australia (Murray, White and Scott JJ) was allowed[2].  The Full Court ordered that the appellant's claim be dismissed.  By special leave, the appellant appeals to this Court.

   [1]Jones v Bartlett unreported, District Court of Western Australia,  4 February 1998.

   [2]Bartlett v Jones unreported, Supreme Court of Western Australia, 22 February 1999.

   The facts

4. The appellant suffered his injury when, on the evening of 27 November 1993, he walked into a glass door which separated the dining room and the games room of the house which his parents were renting from the respondents. 

5. Commissioner Reynolds made the following findings about the circumstances of the accident. 

6. The house was built in the late 1950s or early 1960s.  Originally, it consisted of three bedrooms, a bathroom, a toilet, a laundry, a kitchen, a lounge room and a dining room.  Some time later, a games room was added at the rear of the house.  The door in question, which was made of glass in a timber frame, connected the dining room to the games room.

7. The parents of the appellant took a lease of the house from the respondents in November 1992.  The lease expired on 6 November 1993.  They remained in the premises thereafter, on a fortnightly basis, on the terms of the original lease.

8. The accident occurred because the appellant, who had been living in the house with his parents for about four months, walked into the door without looking to see whether it was open or closed.  On the view I take of the case, it is unnecessary to pursue the matter of contributory negligence.  It may be noted, however, that the Full Court of the Supreme Court, although it was strictly unnecessary to decide the point, went further than Commissioner Reynolds, and found that the appellant's carelessness was the sole cause of his injury. 

9. The alleged negligence, or breach of contractual duty, on the part of the respondents, consisted in failing to have an expert inspect the premises before they were let to the parents of the appellant, and in failing to have the glass in the door in question replaced with thicker glass which would comply with the safety standards that would have applied had the building been newly constructed, or had the glass in the door been replaced, at that time.

10. The appellant called, as a witness, Mr Fryer, who was a consultant in matters concerning the use of glass.  Commissioner Reynolds summarised the evidence of Mr Fryer as follows:

    "He examined a piece of glass from the glass door and found it to be annealed glass of 4 mm thickness.  It was not laminated or strengthened.  He gave evidence about the Australian Standards for glass. 

    The first Australian Standard was CA26-1957.  It did not prescribe any mandatory requirements for fitting glass panes.  It was only concerned with wind loads and not human impact.  It recommended annealed glass of 4 mm thickness.  The glass is called annealed because of the cooling process it goes through when it comes out of a furnace.

    The relevant standard was later upgraded in 1973, 1979 and 1989.  I accept that there was no statutory duty to upgrade the glass in the glass door as standards changed and no evidence that the defendants knew of the standards.  The 1989 standard required replacement glass in such a door or a new door in new premises, if the glass was annealed glass, to be 10 mm thickness.  The 1989 standard also provided for toughened safety glass and laminated safety glass.

    Mr Fryer said that he would charge about $130 to do an inspection and report on the suitability of glass in premises such as the premises.  He added that he has not carried out such an inspection on residential premises."

11. In brief, the evidence showed that the glass door complied with the building standards and regulations applicable at the time the house was constructed.  The annealed glass in the door was 4 mm thick, which was what the Australian Standard recommended.  The glass in the door did not comply with the standards that would have been applicable had the house been constructed immediately before the lease was entered into.  If the glass in the door had been replaced immediately before that time, replacement glass would have had to be a thickness of 10 mm, unless it was toughened safety glass, laminated glass, or safety organic coated glass. 

12. Commissioner Reynolds also made the following finding, which was challenged in argument.  He said:

    "I find that if the premises were inspected on or before 6 November 1992 by a person with building qualifications to assess safety then it is likely that comment would have been made that the glass in the door fell a long way short of the then current standard with a recommendation that it be replaced."

13. There was no evidence to support that finding.  In particular, Mr Fryer was not asked whether he would have made such a recommendation.  There is nothing in his evidence to support the inference that he would have made such a recommendation.

14. A related finding that was also the subject of criticism was expressed by Commissioner Reynolds as follows:

    "There is no evidence on the cost of a glass door that complied with the standard at the time but I think it fair to conclude that the cost of such a door would be cheap relative to the risk of the danger and the potential gravity of injury."

15. The criticism of that finding was that it concentrated exclusively on the cost of replacement of the particular glass door in question.  If an expert in glass had been engaged to inspect the premises at the time of the lease, there is no reason to think that attention would have been concentrated solely upon the glass door through which the appellant put his knee.  Furthermore, if the premises had been inspected at the time of the lease for the purpose of considering any and all respects in which they might not have complied with current building standards if they had been newly built, then there is no reason why attention would have been limited to the subject of glass.  The circumstance that, with the benefit of hindsight, it is known that it was a particular glass door that caused injury to the appellant, provides no justification for restricting consideration of compliance with current building standards, or the cost of replacement of articles not complying with current building standards, to the glass door.

16. The critical finding of Commissioner Reynolds, which led to the imposition of liability under the Occupiers' Liability Act, and which is also relied upon to support a case based on the common law tort of negligence, was as follows:

    "I find that the defendants were negligent by failing to have the premises adequately inspected for safety prior to allowing the plaintiff's parents into possession.  It is likely that such an inspection would have resulted in the state of the glass door being brought to their attention.  They should have known the state of the door gave rise to serious danger and replaced it with a door that complied with the safety standard at the time."

17. That finding was reversed by the Full Court, which decided against the appellant, insofar as his case was based on negligence, on the facts.  In that connection, it should be noted that, at all stages of the litigation, the respondents have conceded that they owed a duty of care to the appellant, although there was a dispute as to the content of that duty.

18. The leading judgment in the Full Court was written by Murray J, with whom the other members of the Court agreed.  His Honour said[3]:

    "As I have mentioned, [Commissioner Reynolds] found the breach of duty in the failure to have the premises adequately inspected for safety.  With respect I find myself unable to agree.  I have expressed the view that in the circumstances of this case as they were established at trial, there was a very remote prospect of a collision between a person and the glass in the door.  Once that occurred, of course, the risk of injury was substantial if the collision was with sufficient force to cause the glass to break, but there was no danger that that would occur without such a collision, or when the door was used normally.  Certainly it was, on the evidence, a well trafficked area allowing access between the interior of the house and the backyard, but the door was positioned so that it could be clearly seen and the fact that it was made of glass in a wide wooden frame clearly observed.  The handle was readily accessible.  It formed no trap to the ordinary user of the door, particularly not to an adult.

    When the lease was entered into in November 1992 the respondent's parents inspected the premises and found no fault with them.  For the appellants the inspection was carried out by their agent, Mr Henley.  His evidence was that although he was primarily concerned to make an inventory of the contents of the premises, he would have brought to the appellants' attention and have them deal with any matter concerned with the safety of the premises to which the respondent's parents objected, or which he noticed himself.  The evidence did not deal with whether the state of the glass would have been discoverable upon reasonable inspection by a qualified builder or some person of that kind.

    Mr Fryer, the expert glazier, gave evidence that he would readily have been able to detect that the glass in the door was not of the required Australian Standard by a relatively simple inspection, but he also said that he had never been called upon to do such an inspection of a domestic residence for safety purposes and he had never heard of such an inspection being carried out by any other of his expert colleagues.  He conceded that while he could identify the type of glass, 'not too many people' would be able to do so and 'the general public would not know.'  The evidence was that to the casual observer the door appeared to be, as it was, in a state of good repair, and it operated quite normally.

    In those circumstances I am unable to conclude that any reasonable requirement to have the door expertly assessed arose."

    [3]Bartlett v Jones unreported, Supreme Court of Western Australia, 22 February 1999 at 24-25.

19. The conclusion that the respondents were not negligent in failing to have the door expertly assessed at the time of the lease, is, in one respect, expressed in terms which are unduly favourable to the appellant.  As was noted above, if there were to be an expert assessment at the time of the lease, there is no reason why it would have been restricted to an assessment of the glass door in question.  Implicit in the proposition that reasonable care required that there should have been an expert assessment is the idea that all features of the premises potentially capable of harming someone who came onto the premises, or, at least, the prospective tenants and members of their households, should have been the subject of expert assessment.  The glass door had been there for thirty years without causing any harm.  It was an ordinary door, constructed in accordance with building practice and standards of the time when the house was built.  There was no reason why it would have been the focus of special attention.

20. Having reached that conclusion, it was unnecessary for Murray J to go on to deal with the finding at first instance that, if there had been such an assessment, there would have been a recommendation to replace the glass in the door.  It has already been pointed out that there was no evidence to justify that finding.  It also suffers from the defect of involving unjustifiable ex post facto concentration on the door.

    "Defects"

21. For most of this century, the common law in Australia was taken to be as stated by the House of Lords in Cavalier v Pope[4].  That was a case about a lease of a dilapidated house.  The tenant's wife was injured when she fell through the
    

    [4][1906] AC 428.

    [5][1906] AC 428 at 430.

    [6](1863) 15 CB (NS) 221 at 240 [143 ER 768 at 776].

    [7](1997) 188 CLR 313.

    floor.  Lord Macnaghten[5] referred to a statement made in Robbins v Jones[6] in 1863 that "there is no law against letting a tumble-down house".  In Northern Sandblasting Pty Ltd v Harris[7], this Court decided that the common law in Australia is different.  (How different was not made completely clear).  That was a case in which principles were stated in relation to "defects".  The premises in that case were undoubtedly defective.  The electrical wiring had been left in a highly dangerous condition as the result of the negligence of an electrical contractor.

22. In the present case, we are not concerned with a dwelling house that was dilapidated or tumble-down, or that contained negligently installed and dangerous electrical wiring.  There was nothing about the premises that alerted, or should have alerted, the owners to any unusual danger.  The premises were constructed in accordance with the standards prevailing at the time, and, so far as appears from the evidence, were adequately maintained.

23. There is no such thing as absolute safety.  All residential premises contain hazards to their occupants and to visitors.  Most dwelling houses could be made safer, if safety were the only consideration.  The fact that a house could be made safer does not mean it is dangerous or defective.  Safety standards imposed by legislation or regulation recognise a need to balance safety with other factors, including cost, convenience, aesthetics and practicality.  The standards in force at the time of the lease reflect this.  They did not require thicker or tougher glass to be put into the door that caused the injury unless, for some reason, the glass had to be replaced.  That, it is true, is merely the way the standards were framed, and it does not pre-empt the common law.  But it reflects common sense.

24. In Phillis v Daly[8], Mahoney JA said:

    "There are dangers on any premises.  A room may have a desk or a table.  There is a danger that, if I fall, I will hit my head on it and my skull will be fractured.  If the desk or table were not there, I would suffer little or no harm.  And the danger is obvious:  people do slip and fall.  And the injury may be serious.  But the obvious foreseeability of such an injury and its seriousness does not involve that, if a person falls and hits his head on a table, there must have been a breach of duty by the occupier of the room.  And this notwithstanding that people may live without tables and that tables may be easily removed."

    [8](1988) 15 NSWLR 65 at 74.

25. It is interesting, and not without relevance, to speculate about how many objects in and around an ordinary dwelling house would constitute a potential hazard to a person who behaved as carelessly as the appellant.

26. I do not accept that the condition of the respondents' premises was shown to be defective in any relevant sense.

    The claim in contract

27. The appellant claimed that the respondents were in breach of their contractual obligations under the lease, as extended by the Residential Tenancies Act 1987 (WA). He also claimed that, by reason of s 11 of the Property Law Act 1969 (WA), he was entitled to sue for such breach even though he was not a party to the contract.

28. The first of those two propositions was rejected both by Commissioner Reynolds and the Full Court.  On that basis, the second proposition did not require determination, although views adverse to the appellant were expressed about it.

29. The lease obliged the tenants to keep the premises in good working order, fair wear and tear excepted, and to keep (amongst other things) all doors, including glass doors, in the same condition as they were at the commencement of the tenancy, fair wear and tear excepted. Commissioner Reynolds found that, at the time of the accident, there was nothing about the condition of the door that required repair.  "It was essentially as good as a new door of its type." 

30. Section 42 (1) of the Residential Tenancies Act provides:

    "42(1)      It is a term of every agreement that the owner –

    (a)shall provide the premises in a reasonable state of cleanliness;

    (b)shall provide and maintain the premises in a reasonable state of repair having regard to their age, character and prospective life; and

    (c)shall comply with all requirements in respect of buildings, health and safety under any other written law in so far as they apply to the premises."

31. The lease did not contain any provision which excluded, modified or restricted the operation of s 42.

32. It has already been noted that there was no legislative or regulatory requirement that the glass in the door in question had to be thicker or tougher than it was. If it were being replaced, the new glass would have to be thicker or tougher, but, unless and until that occurred, there was no requirement of the kind referred to in s 42(1)(c) of potential relevance. There was no failure to comply with any such requirement.

33. As to s 42(1)(b), Commissioner Reynolds held that the premises were at all material times in a reasonable state of repair having regard to their age, character and prospective life. It was found that, by ordinary use of the glass door, (which did not include attempting to walk through it when it was closed), personal injury would not be caused, and that the premises were reasonably fit for human habitation[9].  The Full Court agreed[10]. 

    [9]Jones v Bartlett unreported, District Court of Western Australia, 4 February 1998 at 14.

    [10]Bartlett v Jones unreported, Supreme Court of Western Australia, 22 February 1999 at 17.

34. No successful challenge to those findings has been made on this appeal.

35. In this Court, it was also argued that the lease contained an implied warranty that reasonable care had been taken to make and keep the premises reasonably fit and safe for the purposes for which they were to be used.  This proposition was based upon common law principles concerning the liability of occupiers of premises for injuries suffered by persons entering pursuant to contract on the premises through defects or dangers existing in the premises.  Cases such as Francis v Cockrell[11], Maclenan v Segar[12] and Watson v George[13] were relied upon.

    [11](1870) LR 5 QB 184.

    [12][1917] 2 KB 325.

    [13](1953) 89 CLR 409.

36. The first thing to be said about this suggested implication is that it does not add anything, on the facts of the present case, to what was included in the contract by s 42 of the Residential Tenancies Act.  If it imposed upon the respondents an obligation more onerous than that imposed by the terms of the contract, as affected by the statute, then it may be doubted whether the implication could be made.  There was no argument addressed to this point, and I express no concluded view upon it.

37. Secondly, the findings of fact made by Commissioner Reynolds and the Full Court in dealing with the argument based upon s 42 apply also to the suggested implication. The premises were reasonably fit and safe for ordinary use as a dwelling house. Their condition was not defective.

38. Thirdly, both as to this aspect of the case in contract and as to s 42 of the Residential Tenancies Act, as was held at first instance and in the Full Court, the appellant was not a party to the tenancy agreement and s 11 of the Property Law Act does not enable him to sue for breach of the agreement.  That section provides:

    "11.(1)      A person may take an immediate or other interest in land or other property, or the benefit of any condition, right of entry, covenant or agreement over or respecting land or other property, although he is not named as a party to the conveyance or other instrument that relates to the land or property.

    (2)      Except in the case of a conveyance or other instrument to which subsection (1) applies, where a contract expressly in its terms purports to confer a benefit directly on a person who is not named as a party to the contract, the contract is, subject to subsection (3), enforceable by that person in his own name but –

    (a)all defences that would have been available to the defendant in an action or proceeding in a court of competent jurisdiction to enforce the contract had the plaintiff in the action or proceeding been named as a party to the contract, shall be so available;

    (b)each person named as a party to the contract shall be joined as a party to the action or proceeding; and

    (c)such defendant in the action or proceeding shall be entitled to enforce as against such plaintiff, all the obligations that in the terms of the contract are imposed on the plaintiff for the benefit of the defendant.

    (3)      Unless the contract referred to in subsection (2) otherwise provides, the contract may be cancelled or modified by the mutual consent of the persons named as parties thereto at any time before the person referred to in that subsection has adopted it either expressly or by conduct."

39. There is nothing in the lease which purports to confer a right, interest or benefit upon the appellant. There was nothing to which s 11 could attach.

40. Reliance was placed upon a clause in the lease which stated that the purpose for which the premises were to be used was "a PRIVATE DWELLING to be occupied by not more than THREE persons".  It was found as a fact that, at the time of the negotiations for lease, the agent for the respondents was informed that the tenants expected their son to come to live with them at a future time.  That no doubt explains why it was agreed that up to three persons could occupy the house.  However, the third person could have been anybody chosen by the tenants.  If they had decided to invite someone to live with them other than their son, that would have been permissible under the lease.  Their son could not have complained.  The clauses conferred no benefit on the appellant.

41. The appellant's case in contract must fail.

    Occupiers' Liability Act

42. This Act is described in its long title as an Act prescribing the standard of care owed by occupiers and landlords of premises to persons and property on the premises.

43. Section 4 of the Act, so far as presently relevant, provides that ss 5 to 7 are to have effect in place of the rules of common law for the purpose of determining the care which an occupier of the premises is required, by reason of the occupation or control of the premises, to show towards a person entering on the premises in respect, amongst other things, of dangers which are due to the state of the premises.

44. Section 5 provides:

    "5.      (1)      Subject to subsections (2) and (3) the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.

    (2)      The duty of care referred to in subsection (1) does not apply in respect of risks willingly assumed by the person entering on the premises but in that case the occupier of premises owes a duty to the person not to create a danger with the deliberate intent of doing harm or damage to the person or his property and not to act with reckless disregard of the presence of the person or his property.

    (3)      A person who is on premises with the intention of committing, or in the commission of, an offence punishable by imprisonment is owed only the duty of care referred to in subsection (2).

    (4)      Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to –

    (a)the gravity and likelihood of the probable injury;

    (b)the circumstances of the entry onto the premises;

    (c)the nature of the premises;

    (d)the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises;

    (e)the age of the person entering the premises;

    (f)the ability of the person entering the premises to appreciate the danger; and

    (g)the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person."

45. Whilst it is true that more than one person may be in occupation of premises at any given time, ordinarily, when premises are subject to a lease, during the term of the lease, by virtue of the right of exclusive possession, the tenant is the occupier of the premises and the landlord is not. That accounts for the presence in the Act of s 9, which provides:

    "9.      (1)      Where premises are occupied or used by virtue of a tenancy under which the landlord is responsible for the maintenance or repair of the premises, it shall be the duty of the landlord to show towards any persons who may from time to time be on the premises the same care in respect of dangers arising from any failure on his part in carrying out his responsibilities of maintenance and repair of the premises as is required under this Act to be shown by an occupier of premises towards persons entering on those premises.

    (2)      Where premises are occupied or used by virtue of a

    
    

    sub-tenancy, subsection (1) shall apply to any landlord who is responsible for the maintenance or repair of the premises comprised in the sub-tenancy.

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

    (4)      This section applies to tenancies created before the commencement of this Act as well as to tenancies created after its commencement."

46. As to s 9, the finding made by Commissioner Reynolds, in connection with the case based on contract, was that there was no failure on the part of the respondents to carry out their responsibilities of maintenance and repair. Therefore, no dangers arose from any such failure. Accordingly, and correctly, he did not pursue that topic.

47. Commissioner Reynolds held[14], and the Full Court agreed[15] that, because the lease prohibited the tenants from altering the premises without the prior consent of the respondents, and because the respondents were obliged to keep the premises in a good state of repair, then to that extent the respondents shared control of the premises with the tenants. Therefore, having regard to s 2 of the Act, and the definition of occupier of premises as meaning a person occupying or having control of premises, the respondents, as well as the tenants, were occupiers for the purposes of s 5 of the Act. That conclusion was challenged by the respondents, and I will return to it. However, it is from this point that the reasoning of the Full Court differed from that of Commissioner Reynolds. The key findings of Commissioner Reynolds as to breach of a duty of care are set out above. Murray J, with whom the other members of the Full Court agreed, accepting that the respondents were subject to the duty expressed in s 5, concluded that there was no breach of the duty. His Honour said that, if it was right to regard the state of the door as constituting a dangerous part of the premises, the respondents were under a duty to the appellant, imposed by s 5, to take such care as in all the circumstances of the case was reasonable to see that the appellant would not suffer injury or damage by reason of such danger[16].  He pointed out, correctly, that the present is not a case where issues as to
    

    [14]Jones v Bartlett unreported, District Court of Western Australia, 4 February 1998 at 23-24.

    [15]Bartlett v Jones unreported, Supreme Court of Western Australia, 22 February 1999 at 20.

    [16]Bartlett v Jones unreported, Supreme Court of Western Australia, 22 February 1999 at 20-21.

    non-delegability of a duty arise. He also expressed the view that the duty owed to the appellant at common law would not be materially different from that imposed by s 5.

48. The findings of Murray J, agreed in by the other members of the Full Court, have also been set out above, in dealing with the facts of the case.

49. On this aspect of the case, I prefer the reasoning of the Full Court to that of Commissioner Reynolds.  The argument that reasonable care required the respondents, prior to the commencement of the lease, to have the premises expertly assessed to see whether, and in what respects, their construction fell short of current building standards, or whether, and in what respects, they could be made safer, is unconvincing.  It has not been shown to be usual practice.  The evidence indicates that it is not usual practice.  There was nothing to suggest to the respondents that the house was defective or dangerous, or that, by reason of its age, or condition, it was hazardous to occupy.  If, every time a lease is entered into, the landlord must have an expert assessment of the premises, it will ordinarily be the tenant who has to pay.  That may be one reason why it is not common practice.  Equally unconvincing, and unsupported by the evidence, is the assertion that, if an expert had assessed the premises, there would have been a recommendation to replace the glass in the door. Mr Fryer did not say he would have made such a recommendation.  He was never asked that question; possibly for good reason.

50. Although the appellant's case on the Act failed on the facts, the proposition that the respondents were occupiers for the purposes of s 5 was contested. It may be accepted that the respondents were occupiers immediately before the commencement of the lease, and, in so far as their alleged negligence consisted of a failure to arrange for an expert assessment of the premises at that stage, then it could be related to their occupancy. However, ss 4 and 5 of the Act assume a temporal relationship between a defendant's status as occupier and a plaintiff's entering upon the subject premises. The proposition that the respondents retained the status of occupiers throughout the term of the lease, jointly with the tenants, by reason of their control over repairs and alterations, is unacceptable. The right to exclusive possession of the premises was in the tenants. The respondents did not have control of the premises, within the meaning of s 2, merely because they alone had the right to effect, or approve, repairs and alterations. Murray J said that "the learned Commissioner was right to regard the appellants as occupiers in respect of the condition of the door"[17].  The question is whether they were occupiers of the premises, not the door.  During the term of the lease, they did not occupy or control the premises.  In this respect, the reasoning of the Full Court was unduly favourable to the appellant.

    [17]Bartlett v Jones unreported, Supreme Court of Western Australia, 22 February 1999 at 20.

    Liability in tort at common law

51. It was submitted for the appellant that, even if he could not rely upon s 5 of the Occupiers' Liability Act, because the respondents were not occupiers, and even if s 9 of that Act did not assist in the circumstances of the case, there was a common law duty of care owed to him by the respondents, and his injury resulted from a breach of that duty.

52. It was conceded by the respondents that there was a duty owed. However, the Full Court held that the content of that duty was not materially different from the duty upon an occupier imposed by s 5 of the Occupiers' Liability Act. Since they held that there was no failure to take the care which they held s 5 required, they also held there was no breach of a common law duty that would have existed apart from the Act. Thus, the factual basis upon which they decided against the appellant would have applied equally had they considered that the duty was imposed, not by statute, but by the common law.

53. In order to escape this conclusion, upon the assumption that the factual reasoning of the Full Court was not displaced, senior counsel for the appellant argued for a higher common law duty than one corresponding to s 5. That made it necessary to consider the judgments in Northern Sandblasting Pty Ltd v Harris[18].  That case is authority for no principle which assists the appellant, except that it establishes that Cavalier v Pope[19] no longer represents the common law in Australia.

    [18](1997) 188 CLR 313.

    [19][1906] AC 428.

54. The alleged negligence of the respondents was said to consist of an omission, rather than an act.  The omission was said to be the failure to have an expert assessment of the premises at the time of the lease, in circumstances where it was supposed that such an assessment would, in turn, have resulted in a recommendation to replace the glass in the door (an unwarranted supposition).  That occurred before the lease was entered into. Consequently, attention was directed to those parts of the judgments in Northern Sandblasting which dealt with a duty to arrange for an inspection before lease.

55. The question of non-delegability of a duty was important in Northern Sandblasting, where the negligence of an electrical contractor was responsible for the condition of the premises.  Its significance in the present case is merely rhetorical.  It might have become important if, for example, Mr Fryer had been engaged to inspect the premises and he had carelessly failed to notice the thickness of the glass in the door, although even then there would have been an issue as to whether he would or should have recommended its replacement.

56. The rejection of Cavalier v Pope was anticipated by King CJ, in the Supreme Court of South Australia, in Parker v South Australian Housing Trust[20], who said that it was inconsistent with the modern doctrine of liability for negligence as it has developed since Donoghue v Stevenson[21].As Dawson J pointed out in Northern Sandblasting[22], under the ordinary principles of the modern law of negligence, the duty was a duty to take reasonable care to avoid foreseeable risk of injury to the appellant; the practical extent of the duty was governed by the circumstances of the case.

    [20](1986) 41 SASR 493 at 516-517.

    [21][1932] AC 562.

    [22](1997) 188 CLR 313 at 343.

57. There is no ground in principle for imposing upon the respondents an obligation greater than an obligation to take reasonable care to avoid foreseeable risk of injury to their prospective tenants and members of their household.  The critical question is as to what is reasonable.  The judgment of the Full Court, with which I agree, to the effect that there was no failure to take reasonable care, was a judgment of fact.  It cannot be circumvented by an attempt to formulate the legal duty with greater particularity, in a manner which seeks to pre-empt the decision as to reasonableness.

58. Lord Macmillan observed in Donoghue v Stevenson[23] that the law can only refer to the standards of the reasonable person to determine whether a duty of care exists.  The same standards determine whether the duty has been broken.  "The criterion of judgment must adjust and adapt itself to the changing circumstances of life."[24]  The capacity to adjust and adapt, which is inherent in the test of reasonableness, would be diminished if a more particular test were formulated.  There is no reason to seek to do so.  Whether it is reasonable to require an owner of the premises to have them inspected by an expert before letting depends upon the circumstances of the case.  There is no answer which is of universal application.  Deciding what the answer should be in a particular case involves a factual judgment, and does not provide the occasion for the imposition of a requirement of the law.

    [23][1932] AC 562 at 619.

    [24][1932] AC 562 at 619.

59. The claim in negligence must fail.

    Conclusion

60. The appeal should be dismissed with costs.

61. GAUDRON J.   The facts and the history of these proceedings are set out in the judgment of Callinan J.  I shall repeat them only to the extent necessary to make clear my reasons for concluding that this appeal should be dismissed.

62. The primary issue in the appeal is whether the respondents, the owners of residential premises ("the premises") which were leased to the appellant's parents and in which the appellant resided, are liable to the appellant for injuries sustained by him when he walked through a glass door in those premises.  If they are, there is a further question whether their liability is to be reduced by reason of the appellant's contributory negligence.

63. It is not in issue that the premises were constructed some years prior to the lease between the respondents and the appellant's parents ("the lease").  Nor is it in issue that, when installed, the 4 mm annealed glass[25] door, which is at the centre of these proceedings, complied with the relevant building standard.  New standards were later introduced.  When the lease was entered into in November 1992, the relevant standard required that glass in a new residential building and, also, replacement glass be either 10 mm thick or be laminated safety glass.  Glass of that kind does not shatter or break as easily as 4 mm annealed glass.

    [25]The glass is called "annealed" because of the cooling process it goes through when it comes out of a furnace.

64. The appellant contends that, before the premises were leased to his parents, the respondents owed him a duty to have the premises inspected by an expert glazier capable of recognising that the glass door contained 4 mm annealed glass and to replace that glass with 10 mm glass or laminated safety glass in accordance with the then current standard.  He asserts that, in accordance with the Residential Tenancies Act 1987 (WA), that duty was owed as a matter of contract law. Alternatively, he asserts that that duty arose under the Occupiers' Liability Act 1985 (WA) or, in the further alternative, as part of the general law of negligence.

    The Residential Tenancies Act 1987 (WA) and s 11(1) of the Property Law Act 1969 (WA)

65. Section 42(1) of the Residential Tenancies Act relevantly provides:

    "         It is a term of every agreement that the owner –

    ...

    (b)shall provide and maintain the premises in a reasonable state of repair having regard to their age, character and prospective life; and

    (c)shall comply with all requirements in respect of buildings, health and safety under any other written law in so far as they apply to the premises."

    It is convenient to proceed on the basis that those terms were imported into the lease, notwithstanding an ambiguous endorsement at the bottom of one of the pages of the lease suggesting that they may have been excluded under s 82(3) of that Act[26].

    [26]Section 82(3) provides that a residential tenancy agreement may contain a provision by which s 42, amongst other sections, is excluded, modified or restricted, if the agreement is in writing and signed by the owner and the tenant. The lease in this case, which was in writing and was signed by the respondents' agent and the tenants, stated that "[t]he signatory/ies must be aware that in accordance with section 82.3 of the Residential Tenancies Act 1987 … [s 42] may been [sic] excluded, modified or restricted in this document and the terms and conditions set out herein are those which will apply during this tenancy or any subsequent extension".

66. The appellant claims that, by reason of s 11 of the Property Law Act 1969 (WA), he is entitled to the benefit of the terms imported into the lease by ss 42(1)(b) and (c) of the Residential Tenancies Act.  The appellant contends that he has the benefit of those terms because, by cl 1 of the lease, the premises were leased for "use as a PRIVATE DWELLING to be occupied by not more than THREE persons".  And at all relevant times, the appellant was the third person in occupation of the premises.

67. In brief, s 11(1) of the Property Law Act allows that a person may take an immediate or other interest in land or other property, or the benefit of a condition or agreement respecting land or other property, although he or she is not named as a party to the conveyance or other instrument. And s 11(2) allows that, except in the case of a conveyance or instrument to which sub-s (1) applies, a contract may be enforced by a person not named as a party if it "expressly in its terms purports to confer a benefit directly on [that] person".

68. Section 11(1) of the Property Law Act is modelled on s 56(1) of the Law of Property Act 1925 (UK), a provision which has not been definitively construed but which has generally been viewed as having limited effect.  In Beswick v Beswick[27], for example, it was construed as not applicable to personal property, notwithstanding that "property" was expressly defined in that Act to include property of that kind[28].  That was because the words "other property" were inserted into s 56(1) by a consolidating statute and it was, thus, presumed that the legislature had not intended to alter the law[29]. It is by no means clear that s 11(1) of the Property Law Act should be construed in the same manner.

    [27][1968] AC 58.

    [28]Section 205(i)(xx).

    [29][1968] AC 58 at 73, 76-77 per Lord Reid, 79-81 per Lord Hodson, 87 per Lord Guest, 93-94 per Lord Pearce; cf 105-106 per Lord Upjohn.

69. What is clear, however, is that s 11(1) of the Property Law Act must be construed in its particular context. In particular, it must be construed in the light of s 11(2) which is expressed to apply "[e]xcept in the case of a conveyance or other instrument to which subsection (1) applies". And the right of a third party to enforce a contract under s 11(2) is subject to conditions which do not apply to s 11(1). In particular, the right under s 11(2) is subject to the same defences that would have been available in an action by the parties to the contract[30].  Moreover, each person named as a party to the contract must be joined in the action[31] and the defendant is entitled to enforce against the plaintiff all obligations that "in the terms of the contract are imposed on the plaintiff for the benefit of the defendant"[32].

    [30]Section 11(2)(a).

    [31]Section 11(2)(b).

    [32]Section 11(2)(c).

70. If s 11(1) of the Property Law Act stood alone, there would be much to commend the view that it should be construed as applying to any contract expressed in terms that confer a benefit on a person not named as a party to that contract.  That was the view taken with respect to s 56(1) of the Law of Property Act 1925 (UK) by Denning LJ in Smith and Snipes Hall Farm Ltd v River Douglas Catchment Board[33]. However, it must be taken, by reason of the enactment of s 11(2), that s 11(1) was intended to have a more limited operation.

    [33][1949] 2 KB 500 at 517. See also Stromdale & Ball Ltd v Burden [1952] Ch 223; Drive Yourself Hire Co (London) Ltd v Strutt [1954] 1 QB 250 at 274-275 per Denning LJ; Beswick v Beswick [1966] Ch 538 at 556-557 per Lord Denning MR, 562-563 per Danckwerts LJ. Note the rejection of this line of authority by the House of Lords in Beswick v Beswick [1968] AC 58 at 75-76 per Lord Reid, 79 per Lord Hodson, 85-87 per Lord Guest.

71. Although s 11(2) of the Property Law Act indicates that s 11(1) was intended to have a more limited operation than its terms suggest, neither the terms of s 11(1), itself, nor those of s 11(2) provide any definitive basis upon which s 11(1) can be read down. However, because s 11(2) allows for defences which would have been available in an action by parties to the contract and s 11(1) does not, it may be taken that s 11(1) was intended to have a narrow field of operation.

72. In Beswick v Beswick, Lord Upjohn expressed the view, albeit by way of obiter, that s 56(1) of the Law of Property Act 1925 (UK) "was only intended to sweep away the old common law rule that in an indenture inter partes the covenantee must be named as a party to the indenture to take the benefit of an immediate grant or the benefit of a covenant"[34].  On that basis, his Lordship adopted the observation of Simonds J in White v Bijou Mansions Ltd that:

    "under s 56 ... only that person can call it in aid who, although not named as a party to the conveyance or other instrument, is yet a person to whom that conveyance or other instrument purports to grant some thing or with which some agreement or covenant is purported to be made."[35]

    [34][1968] AC 58 at 106.

    [35][1937] Ch 610 at 625.

73. There is, to my mind, no rational basis for reading down s 11(1) of the Property Law Act other than by reference to the common law rule identified by Lord Upjohn in Beswick v Beswick. That being so, and because the presence of s 11(2) dictates that it be read down, s 11(1) should be taken to have the limited operation described by Simonds J in White v Bijou Mansions Ltd.

74. The lease in the present case purports neither to be made with the appellant nor to grant anything to him. Accordingly, he cannot rely on s 11(1) of the Property Law Act. And not having joined his parents to the action, he is not able to rely on s 11(2).

75. Quite apart from his inability to rely on s 11 of the Property Law Act, the appellant's claim in contract fails because, contrary to his argument, the presence of the 4 mm annealed glass door in the leased premises in which he resided does not constitute a breach of the terms imported into the lease by ss 42(1)(b) and (c) of the Residential Tenancies Act. A term requiring a lessee "to provide and maintain the premises in a reasonable state of repair", as imported by s 42(1)(b) of that Act, does not require a lessee to replace items which are undamaged and in good working order, as was the glass door involved in this case. And so far as concerns the term imported into the lease by s 42(1)(c), there was no building, health or safety requirement that the 4 mm annealed glass be replaced with 10 mm glass or laminated safety glass. There was simply a requirement that, if the 4 mm annealed glass were to be replaced, it be replaced with glass of that kind.

    The Occupiers' Liability Act

76. The appellant's claim for damages for breach of statutory duty is asserted under s 5 or, alternatively, under s 9 of the Occupiers' Liability Act, the long title of which is "AN ACT prescribing the standard of care owed by occupiers and landlords of premises to persons and property on the premises".

77. By s 5(1) of the Occupiers' Liability Act a duty is cast upon "an occupier of premises" to take reasonable care for the safety of persons entering those premises. And in addition to any other duty owed by a landlord at common law, s 9(1) imposes a duty in these terms:

    "         Where premises are occupied or used by virtue of a tenancy under which the landlord is responsible for the maintenance or repair of the premises, it shall be the duty of the landlord to show towards any persons who may from time to time be on the premises the same care in respect of dangers arising from any failure on his part in carrying out his responsibilities of maintenance and repair of the premises as is required under this Act to be shown by an occupier of premises towards persons entering on those premises."

78. The duty which the appellant asserts against the respondents was to have the glass door inspected prior to entering into the lease with his parents and to replace the glass with 10 mm glass or laminated safety glass. As already mentioned, the glass door was, at that stage, undamaged and in proper working order. The duty which is thus asserted is not one relating to maintenance and repair. Accordingly, it is not a duty arising under s 9 of the Act.

79. Nor, in my view, did the respondents owe a duty of care to the appellant as "an occupier of the premises" under s 5(1) of the Occupiers' Liability Act.  "Occupier of premises" is defined in s 2 of that Act to mean a "person occupying or having control of land or other premises".  And "premises" is defined by that section to include "any fixed or movable structure, including any vessel, vehicle or aircraft".

80. It is trite law that different persons may occupy the same premises at the same time[36].  Once a lessee has entered into possession of premises, however, the lessor no longer occupies those premises[37].  And the lessor has only such control over the premises as is reserved by the lease.  In the present case, the lessees were obliged by cl 2.11 of the lease:

    "to keep all floors, floor coverings, walls, ceilings, windows (including glass), window treatments, doors (including glass, if any) light fittings, fixtures and fittings, furniture, and all household effects in the same condition as they were at the commencement of [the] tenancy".

    And by cl 2.12, the lessees agreed "not to undertake or authorise any repairs without prior written consent of the [lessors] or [their] Agent".

    [36]Wheat v E Lacon & Co Ltd [1966] AC 552 at 578, 581 per Lord Denning, 585 per Lord Morris of Borth-y-Gest, 587 per Lord Pearce, 588-591 per Lord Pearson.

    [37]See Voli v Inglewood Shire Council (1963) 110 CLR 74 at 89 per Windeyer J; Wheat v E Lacon & Co Ltd [1966] AC 552 at 579 per Lord Denning.

81. Clause 2.11 of the lease did not, in my view, reserve control over the items therein specified to the respondents as lessors.  Rather, it proceeded on the basis that control would pass to the lessees and, that being so, it required them to keep those items in the same condition as at the commencement of the tenancy.  Similarly, in my view, cl 2.12 proceeded on the basis that control over the premises would pass to the lessees.

82. Moreover, even if cll 2.11 and 2.12 were to be read as reserving control to the respondents as lessors with respect to the items therein mentioned, that would not constitute a reservation of control of the premises.  At most, it would constitute reservation of control over some parts of the structure constituting the house in which the appellant resided with his parents, not the house itself.  The definition of "premises" cannot, in my view, be read as relating to items forming part of a structure, as distinct from the structure as a single unit comprised of its parts[38].

    [38]cf Wheat v E Lacon & Co Ltd [1966] AC 552 at 579 per Lord Denning.

83. It follows that, for the purposes of s 5(1) of the Occupiers' Liability Act, once they entered into the lease with the appellant's parents, the respondents were no longer occupants of the premises in question in this appeal.  That does not mean that they were not occupants immediately prior to the granting of the lease[39]. That, however, is not sufficient to establish a duty to the appellant under s 5(1) for it was not until some time after the tenancy came into existence that the appellant commenced to reside in the premises with his parents. Thus, for the purposes of that sub-section, he was not a "person entering on the premises" at any time during which the respondents were occupiers of them.

    [39]See Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 334 per Brennan CJ, 359-360 per Gaudron J.

    Landlord's duty of care under the general law

84. The question whether, contract and statute aside, a landlord is under a duty of care was considered by this Court in Northern Sandblasting Pty Ltd v Harris[40].  Although no clear ratio emerges, it was decided in that case that a landlord was liable to the daughter of its tenants when she suffered injury as the result of defective electrical wiring in the leased premises in which she lived.  It, thus, follows from that case that, under the general law, a landlord of residential premises owes a duty of care to the members of his or her tenant's household.  What cannot be extracted from the reasons for decision in that case is the precise content of that duty.

    [40](1997) 188 CLR 313.

85. The injuries sustained by the tenants' daughter in Northern Sandblasting were the result of the combination of two electrical defects.  One, a defective connection of the earth wire at the power box, was present at the beginning of the tenancy and would have been discovered if an inspection had been undertaken by an electrician before the tenancy commenced[41].  The other was defective wiring associated with the kitchen stove[42].  The landlord had arranged for the stove to be repaired by an apparently competent electrician, but the repairs were done negligently[43].

    [41](1997) 188 CLR 313 at 323 per Brennan CJ, 360 per Gaudron J.

    [42](1997) 188 CLR 313 at 323 per Brennan CJ, 348 per Toohey J, 355 per Gaudron J, 364 per McHugh J.

    [43](1997) 188 CLR 313 at 323 per Brennan CJ, 340-341 per Dawson J, 348 per Toohey J, 355-356 per Gaudron J, 364 per McHugh J, 387-388 per Kirby J.

86. In Northern Sandblasting, Dawson, Gummow and Kirby JJ each held that the landlord did not owe the tenants' daughter a duty of care with respect to either one of the electrical defects which combined to cause her injuries[44].  Toohey and McHugh JJ held that the landlord had a non-delegable duty with respect to the stove repairs which it had undertaken to have carried out[45].  Brennan CJ and I each held that there was a more general duty of care.

    [44](1997) 188 CLR 313 at 344, 347 per Dawson J, 382-383, 385 per Gummow J, 394, 399 per Kirby J.

    [45](1997) 188 CLR 313 at 349-355 per Toohey J, 363, 368-370 per McHugh J.

87. Brennan CJ expressed the view in Northern Sandblasting that the duty owed by a landlord to his or her tenants and to those who occupy premises under and for the purposes of the tenancy is of the same standard as that identified by McCardie J in Maclenan v Segar[46].  Maclenan v Segar concerned the duty of an occupier to those who enter upon premises with consent and for reward.  And in that case, an occupier was held to be under a duty of care 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[47].  However, in the view taken by Brennan CJ in Northern Sandblasting, the duty of a landlord is confined to "defects in the premises at the time when the tenant is let into possession" and does "not extend to defects in the premises ... discoverable only after the landlord parts with possession"[48].

    [46][1917] 2 KB 325.

    [47][1917] 2 KB 325 at 332-333.

    [48](1997) 188 CLR 313 at 340.

88. In Northern Sandblasting, I was of the view that the duty owed by a landlord is a duty "to take reasonable care for [the] safety [of those who constitute the tenant's household] by putting and keeping the premises in a safe state of repair"[49].  The duty was not, in my view, confined to defects existing at the commencement of the tenancy.  However, what was reasonable would vary according to whether or not the tenants were in possession.  Thus, before the tenancy commenced, it was reasonable both to inspect the premises and to remedy existing defects that gave rise to a foreseeable risk of injury.  And in the case of defects or potential defects which posed special dangers (for example, electrical wiring and gas connections), it was reasonable to have an inspection carried out by persons skilled or expert in that regard[50].  So far as concerns defects which were not present at the commencement of the lease, reasonable care required only the remedying of those defects of which the landlord was or ought to have been aware[51].

    [49](1997) 188 CLR 313 at 358.

    [50](1997) 188 CLR 313 at 360.

    [51](1997) 188 CLR 313 at 360.

89. Neither the duty of care recognised by Brennan CJ in Northern Sandblasting nor that which I considered should be recognised in that case avails the appellant in this case.  That is because the duty identified by Brennan CJ was confined to defects.  And that which I thought should be recognised was simply a duty to put and keep the premises in a state of safe repair.  The glass door in issue in this case was not defective and, not being defective, was not in need of repair.

90. For the appellant to succeed in this case, there must now be recognised a duty on the part of a landlord of residential premises to ensure that those premises are as safe for residential use as reasonable care and skill on the part of anyone can make them.  And it must also be held that it is reasonable, at least in the circumstances of this case, to replace items which, though not defective, involve a foreseeable risk of injury if safer items are available.

91. The nature of the relationship between a landlord and the members of his or her tenant's household is not such, in my view, as to require the imposition of a higher duty of care than that which I thought should be recognised in Northern Sandblasting.  That relationship is contractual.  Moreover it is a relationship that involves an element of choice.  As the relationship is contractual, the parties can either stipulate as to the terms of the tenancy or elect not to enter into that relationship.  Moreover, it will ordinarily be the case that the relationship between a tenant and the members of his or her household involves a greater degree of control and dependence than does the relationship between a landlord and the members of his or her tenant's household.

92. Given that the relationship between a tenant and the members of his or her household involves a greater degree of control and dependence than does the relationship between a landlord and the members of his or her tenant's household, there is no basis for the imposition of a higher duty of care on a landlord than is cast on an occupier of premises.  As the occupier of premises is only required to take such care as is reasonable in the circumstances[52], a landlord should not be subjected to a higher duty to make premises as safe for residential use as reasonable care and skill on the part of anyone can make them.  And given that the parties to a tenancy can stipulate as to its terms, there is no reason, in my view, why the duty of landlord should extend beyond a duty to put and keep the premises in safe repair.

    [52]See Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479.

93. Were I of the view that a landlord's general duty of care is to make residential premises as safe as reasonable care and skill on the part of anyone can make them, I would have concluded that it was reasonable, in the circumstances of this case, to replace the 4 mm annealed glass with 10 mm glass or laminated safety glass.  However, as I am of the view that the duty is simply to take reasonable care to put and keep premises in a safe state of repair, that is not a question that I need consider.  Nor need I consider the question of contributory negligence.

    Conclusion and orders

94. The appeal should be dismissed with costs.

95. McHUGH J.   Because of the risk of injury from the use of glass doors, since 1973 the Australian Standards for glass have required that glass doors in houses built after that date be fitted with toughened safety glass, laminated glass or wired glass.  So far as glass doors in houses constructed before that date are concerned, the Standards recommend that, when the glass in the door breaks, it be replaced with glass conforming to the Standards.

96. The appellant lived with his parents who leased a house from the respondents in 1992.  The house, which had been built before 1973, contained a full-length glass door, the glass being annealed and 4mm thick.  It was below the standard for glass specified in 1973 by the Australian Standards.  The respondents ("the landlords") had not had the premises inspected by a person with building qualifications before leasing the premises to the appellant's parents.  The appellant sustained serious injury in 1993 when the glass broke in the door after he inadvertently walked into it.  Are the landlords liable to the appellant for the injuries which he sustained?

97. The appeal is brought by Marc Jarrad Jones against an order of the Full Court of the Supreme Court of Western Australia which allowed an appeal from a decision of Commissioner Reynolds in the District Court of Western Australia.  The learned Commissioner held that the respondents were "negligent by failing to have the premises adequately inspected for safety prior to allowing the [appellant's] parents into possession."

98. At the trial, the appellant had relied on four separate causes of action:

    1.        breach of an implied contractual term;

    2.breach of a statutory duty arising from s 5(1) of the Occupiers' Liability Act 1985 (WA) on the ground that the landlords were "occupier[s] of premises" within the meaning of s 2 of that Act;

    3.breach of a statutory duty arising from s 9(1) of the Occupiers' Liability Act on the ground that the landlords were "responsible for the maintenance or repair of the premises"; and for

    4.        breach of common law duty of care.

99. For the reasons given by Gummow and Hayne JJ, the appellant could not succeed in respect of his claims of breach of implied contractual term and breaches of statutory duty.  But he was entitled to succeed in respect of his claim for breach of common law duty of care.

100. The common law duty of care owed by a landlord to a tenant and other members of the tenant's household is to take reasonable care to avoid foreseeable risks of harm to those persons having regard to all the circumstances of the case[53].  The duty extends to dangerous defects but is not limited to them.  To limit the duty to "dangerous defects", "ordinary use of the premises" or "unusual dangers" would reintroduce into the law the categories expelled by this Court in Australian Safeway Stores Pty Ltd v Zaluzna[54].  Reasonable care in all the circumstances of the case is the benchmark of negligence law.  No exception to it should or need be made for landlords' liability.

     [53]Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 343 per Dawson J.

     [54](1987) 162 CLR 479.

101. Among the relevant circumstances that generate the standard of care owed by the landlord are the right or capacity of the landlord to inspect the premises, the age and condition of the premises, the ages and the physical and mental capacities of persons who will use them, the use to which they will be put, the nature and degree of the risk of injury and the cost or inconvenience of eliminating that risk.  As in other areas of the law of negligence, the relevant circumstances will include both those of which the landlord knew and those of which the landlord ought reasonably to have known.

102. In determining what the landlord ought to have known, the knowledge of experts will often be relevant.  That is because the exercise of reasonable care will often require the landlord to obtain the services of experts to inspect the premises.  Whether an expert inspection is needed will depend on factors such as the age of the premises, the known or suspected risks, and the time that has elapsed since there has been a previous inspection by a professionally competent person.

103. When domestic premises are the subject of a new letting, reasonable care requires that they be reasonably fit for habitation by those who will reside in the premises.  That will ordinarily require an inspection by the landlord or an agent immediately before the commencement of the letting.  It may also require inspection by a person with building qualifications who has the capacity to assess the safety of the premises.  Whether it does will depend on the age of the premises, its general condition and the time since the last inspection by a professionally competent person.

104. In earlier times, reasonable care may not have required a landlord to do more than make his or her own inspections.  But as Mason, Wilson and Dawson JJ pointed out in Bankstown Foundry Pty Ltd v Braistina[55], "what reasonable care requires will vary with the advent of new methods and machines and with changing ideas of justice and increasing concern with safety in the community."  Their Honours went on to say that "[w]hat is considered to be reasonable in the circumstances of the case must be influenced by current community standards"[56].

     [55](1986) 160 CLR 301 at 308-309.

     [56](1986) 160 CLR 301 at 309.

105. Braistina was concerned with an action between employer and employee.  But it would be a serious mistake in principle to regard their Honours' remarks as not having general application in the field of negligence law.  The general comments of Brennan and Deane JJ in that case concerning the duties of care owed by an employer to an employee also apply to the general law of negligence and particularly to the letting of premises for profit.  Their Honours said[57]:

     "Contemporary decisions about what constitutes reasonable care on the part of an employer towards an employee in the running of a modern factory are in sharp conflict with what would have been considered reasonable care in a nineteenth century workshop and, for that matter, reflect more demanding standards than those of twenty or thirty years ago.  While it is true that that has, in part, been the consequence of the elucidation and development of legal principle, it has, to a greater extent, reflected the impact, upon decisions of fact, of increased appreciation of the likely causes of injury to the human body, of the more general availability of the means and methods of avoiding such injury and of the contemporary tendency to reject the discounting of any real risk of injury to an employee in the assessment of what is reasonable in the pursuit by an employer of pecuniary profit."

     [57](1986) 160 CLR 301 at 314.

106. The materials, machines and equipment used or that can be used in building and fitting out premises, including residential premises, have reached a level of sophistication and technological achievement unthinkable in earlier times.  The risks inherent in or which can arise from the use of these materials, machines and equipment are often unknown or unobservable to the ordinary landlord or householder.  Furthermore, many materials, machines, equipment and building techniques can give rise to risks of injury beyond the comprehension of the ordinary householder or landlord[58].  Not so very long ago, for example, householders, landlords and even experts did not appreciate the harm that could be caused by asbestos fibres, a material commonly used as insulation in walls and ceilings[59].  Nor were they aware of the dangers inherent in using lead-based paints[60].  The inability of the ordinary landlord and householder to identify risks, which can have serious and sometimes fatal consequences, makes it imperative that residential premises let for rental should be inspected regularly by those capable of identifying such risks.  In the last decade of the 20th century, discharge of the duty of reasonable care requires no less.  Findings of fact in cases such as Watson v George[61], decided nearly 50 years ago, provide no guidance as to what constitutes the exercise of reasonable care on the part of landlords at the present time or, for that matter, in 1992.

     [58]"The home is usually seen as a safe and secure haven.  Such a perception leads us to expect that there will be no hazards.  Despite this expectation, there is much evidence that shows we are subjected to an extensive range of hazards in the home and that some of these hazards, such as injury, are very important compared to other risks in our lives."  Langley et al (eds), Environmental Health in the Home, (1996) at 1.

     [59]See Fitzgerald, "Asbestos exposure in the home", in Langley et al (eds), Environmental Health in the Home, (1996) 61 at 61-63.

     [60]One author states that paints used in Australian houses constructed before 1970 are likely to contain high lead concentrations.  Before 1950, certain paints contained as much as 50 percent lead.  From December 1997, the recommended maximum amount of lead allowed in domestic paints is 0.1 percent.  Turczynowicz, "Miscellaneous chemicals", in Langley et al (eds), Environmental Health in the Home, (1996) 92 at 96.

     [61](1953) 89 CLR 409.

107. In the present case, the premises were leased for twelve months commencing on 7 November 1992.  The exercise of reasonable care by the landlords in this case required that, either immediately before the letting to the appellant's parents or, at some reasonable period before that time, the house should have been inspected by a person with building qualifications to assess its safety.  Since 1973, the existence of the Australian Standards for glass demonstrated, if it needed demonstration, that persons are at risk if they reside in premises with internal glass doors which are not fitted with safety, laminated or wired glass.  If the premises in this case had been inspected, the risk of injury and the means of avoiding it would probably have been pointed out to the landlords.

108. The learned Commissioner said that:

     "if the premises were inspected on or before 6 November 1992 by a person with building qualifications to assess safety then it is likely that comment would have been made that the glass in the door fell a long way short of the then current standard with a recommendation that it be replaced.  The fact that the door was located in the main access way between the inside and outside of the premises increased the likelihood of such a recommendation."

     This was a finding open to the Commissioner.  I would not disturb it.  Nor should the Full Court have disturbed it.

109. It follows then that there was present in the premises a reasonably foreseeable risk of injury to persons such as the appellant of which the landlords ought to have known.  The means of avoiding the risk of harm were also something that they ought to have known.  The learned Commissioner said that it would be "fair to conclude that the cost of such a door would be cheap relative to the risk of the danger and the potential gravity of the injury."  I see no reason to disagree with the learned Commissioner's finding on the issue of preventability, which seems to me to be correct.

110. I do not think that it is a relevant answer to the appellant's case that the Australian Standards merely recommended that, for houses built before 1973, glass to the required standard should be installed in doors only after the glass needed to be replaced.  The Standards are of general application.  They are a guide to, but they cannot dictate, the standard of reasonable care required in the circumstances of individual cases.  This door was located in the main access way between the inside and the outside of premises let for rental.  In determining what reasonable care required, the consequence of inadvertence or thoughtlessness on the part of the residents was a variable factor which must be taken into account by the landlords[62].  It carried a risk of injury to the careless or inadvertent resident that a reasonable person, conscious of the risk, would not ignore.

     [62]cf Smith v The Broken Hill Pty Co Ltd (1957) 97 CLR 337 at 343.

111. Although the risk of injury may have been slight, the consequences of walking into the glass could be grave[63].  That being so, and because the cost and inconvenience of eliminating the risk were modest, the standard of reasonable care required of landlords in the last decade of the 20th century required that the glass in this door conform to at least the 1973 Australian Standards for glass.  As the Judicial Committee pointed out in Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty[64], a reasonable person would disregard a risk that was likely to happen even once in a very long period only if he or she "had some valid reason for doing so, eg, that it would involve considerable expense to eliminate the risk."

     [63]See Cassell and Ozanne-Smith (Monash University Accident Research Centre), Women's Injury in the Home in Victoria, (1999) at xxx, which states that in a four-year period in Victoria there were two deaths of adult women from broken glass injury, one of them and between 25% to 33% of glass-related injuries treated in hospital emergency departments having resulted from broken glass from windows and doors.

     [64][1967] 1 AC 617 at 642.

112. The appellant was entitled to succeed in the action, but the Commissioner was correct in holding the appellant guilty of contributory negligence.

113. I would allow the appeal and restore the Commissioner's verdict for the appellant.

114. GUMMOW AND HAYNE JJ.   This is an appeal from a decision of the Full Court of the Supreme Court of Western Australia (Murray, White and Scott JJ).  The Full Court allowed an appeal from a decision of Commissioner Reynolds in the District Court of Western Australia, in which Mr Jones ("the appellant") was the plaintiff and Mr and Mrs Bartlett ("the respondents") were the defendants.

115. The appellant walked into a full length glass door which separated the dining room from the games room in the house where he lived with his parents.  The parents leased the house from the respondents.  The appellant brought an action for damages for personal injury which was sustained allegedly by the negligence of the respondents.  His parents were not parties to the litigation.  The appellant obtained a verdict for $37,500, which represented an award of $75,000 reduced by 50 per cent for contributory negligence.

116. The Full Court set aside the orders of the Commissioner and dismissed the appellant's action.  The Full Court also dismissed a cross-appeal by the appellant in which he sought to set aside the finding in respect of contributory negligence.  Before this Court, the appellant seeks orders that would reinstate the Commissioner's judgment in favour of the appellant, modified in various ways set out below, including the removal of any finding of contributory negligence.

117. The issues which arise on this appeal fall for consideration in the light of what the appellant identifies as two salient features of the common law as it developed in England.  First, the general principles of negligence did not apply to landlords because it was the tenant not the landlord who had exclusive occupation of the demised premises and therefore was "the true occupier".  Secondly, contractual obligations under the lease apart, the landlord owed no common law duty either towards the tenant or any entrant of residential premises to take care that the premises were safe either at the commencement of the tenancy or during its continuance.  The appellant then submits that the decision in Northern Sandblasting Pty Ltd v Harris[65] left the landlord with common law duties to tenants, occupiers and other entrants which are of uncertain content.  This appeal, it is submitted, provides the occasion to end that uncertainty by supporting the liability to the appellant of the respondents.

     [65](1997) 188 CLR 313.

     The facts

118. The respondents jointly owned land in Gunbower Road, Mt Pleasant, Perth, on which was situated a house built in about the late 1950s or early 1960s.  On 6 November 1992, the appellant's parents entered into a written tenancy agreement with the respondents to lease the premises for a term of 12 months, commencing on 7 November 1992 and expiring on 6 November 1993. The document was in standard form ("the Lease").  While it was headed "AGREEMENT TO TAKE RESIDENTIAL PREMISES" , cl 1 stated that "THE OWNER LETS and the Tenant takes the premises … [f]or a term …".  The Lease thus operated as more than an agreement to lease.  The document stated that the premises were to be used as a private dwelling "to be occupied by not more than THREE persons".  The word "three" was typed into a blank space.  The appellant's parents were identified as "the Tenant".

119. The Lease contained a number of printed terms and several special conditions.  It stated that various sections of the Residential Tenancies Act 1987 (WA) ("the Residential Tenancies Act"), including s 42, "may [have] been excluded, modified or restricted in this document". Section 82(3) of that statute permitted a residential tenancy agreement such as that involved here to contain a provision by which s 42 was excluded, modified or restricted. Clause 2.11, which appeared in the section styled "2 THE TENANT" and was headed "Maintenance and movement [of] chattels", read:

     "The Tenant agrees to keep all floors, floor coverings, walls, ceilings, windows (including glass), window treatments, doors (including glass if any), light fittings, fixtures and fittings, furniture, and all household effects in the same condition as they were at the commencement of this Tenancy and in accordance with the Property Condition Report (fair wear and tear excepted), and if any of such shall be moved during the tenancy the Tenant agrees to replace all items in the positions set out on the Schedule/Inventory as at the commencement of the tenancy." (emphasis added)

     Clause 2.12, headed "Repairs", read:

     "The Tenant shall not undertake or authorise any repairs without prior written consent of the Owner or the Owner's Agent."

     Clause 2.13 required the tenant not to make any alterations or additions to the premises or to any fixtures or fittings.  Clause 2.9.2 stated:

     "The Schedule and/or Inventory and/or Property Condition Report when signed by the parties shall be deemed to be a true and correct description of the property and/or its contents."

120. The evidence included a document headed "PROPERTY CONDITION REPORT", dated 6 November 1992 – that is, the date of the tenancy agreement – and signed by the appellant's parents on 18 November 1992.  The report was prepared by the respondents' real estate agent after he conducted an inspection of the premises and was used in connection with the provision of a security bond.  Under the sub-heading of "ENCLOSED PATIO", the report included an item reading "DOORS – Intact".

121. The appellant arrived at the premises to stay with his parents some time in July 1993.  He was then aged 23 and had been living in Bunbury and working as a bricklayer.  The appellant's parents remained in occupation after 6 November 1993, and he remained living with them.  The effect of a holding-over provision of the Lease was that the tenants remained as periodic tenants but on the same terms and conditions as were specified in the Lease.

261. Had the house been constructed after 1973 the door would not have complied with the Australian Standard Code of Practice for Installation of Glass in Buildings (AS 1288 – 1973)[257].  Compliance with that Standard required annealed glass of a thickness of 8 millimetres.  The later Standard promulgated in 1989 contained a note to this effect[258]:

     "For locations where glass is likely to be subjected to human impact, it is recommended that safety glass … be used when broken glass is being replaced." (emphasis added)

     [257]The 1973 Standard was amended in 1979, 1989 and 1994.  No significance was attached to the 1994 amendment as it was made after the accident.  AS 1288 – 1989 required a minimum thickness of 10 millimetres.

     [258]Section 5 - Human Impact Safety Requirements: 5.1 General, n 7.

262. For reasons which will appear it is unnecessary for me to decide whether the glass in the door in question was in a location where it was "likely to be subjected to human impact".  It by no means strikes me as inevitable however that because a door, the purposes of which are both to deny and give access, is located between the interior and exterior of premises, it is in a location where it is likely to be subjected to human impact.  To describe such a door as a serious danger would, in any event, be a considerable overstatement of the position. 

263. The appellant sued the respondents for damages for personal injury in negligence, for breach of statutory duty and for "breach of conditions of the lease".   

264. After a trial limited to the issue of liability the District Court of Western Australia (Commissioner Reynolds) made this finding:

     "I find that if the premises were inspected on or before 6 November 1992 by a person with building qualifications to assess safety then it is likely that comment would have been made that the glass in the door fell a long way short of the then current standard with a recommendation that it be replaced.  The fact that the door was located in the main access way between the inside and outside of the premises increased the likelihood of such a recommendation."

265. The Commissioner then went on to hold that the respondents were negligent in failing to have the premises adequately inspected for safety before allowing the appellant's parents into possession:  that it was likely that such an inspection would have resulted in the state of the glass door being brought to their attention.  The Commissioner then said that the respondents should have known that the state of the door gave rise to a serious danger and that they should have replaced it with a door that complied with the safety standard at the time that the appellant suffered injury. 

266. The Commissioner next dealt with the respondents' contention that the appellant's injuries were caused or contributed to by his negligence.  At this point he said that his finding was based on a breach, by the respondents, of the duty of care required to be shown by them towards the appellant pursuant to the Occupiers' Liability Act 1985 (WA), s 10 of which provides:

     "Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947

     The Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 applies to claims under this Act."

267. Sections 4, 5 and 9 of the Occupiers' Liability Act are also relevant and provide as follows:

     "Application of sections 5 to 7

     4 (1)    Sections 5 to 7 shall have effect, in place of the rules of the common law, for the purpose of determining the care which an occupier of premises is required, by reason of the occupation or control of the premises, to show towards a person entering on the premises in respect of dangers –

     (a)      to that person; or

     (b)to any property brought on to the premises by, and remaining on the premises in the possession and control of, that person, whether it is owned by that person or by any other person,

     which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier of premises is by law responsible.

     (2)      Nothing in sections 5 to 7 shall be taken to alter the rules of the common law which determine the person on whom, in relation to any premises, a duty to show the care referred to in subsection (1) towards a person entering those premises is incumbent.

     Duty of care of occupier

     5 (1)    Subject to subsections (2) and (3) the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.

     (2)      The duty of care referred to in subsection (1) does not apply in respect of risks willingly assumed by the person entering on the premises but in that case the occupier of premises owes a duty to the person not to create a danger with the deliberate intent of doing harm or damage to the person or his property and not to act with reckless disregard of the presence of the person or his property.

     (3)      A person who is on premises with the intention of committing, or in the commission of, an offence punishable by imprisonment is owed only the duty of care referred to in subsection (2).

     (4)      Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to –

     (a)the gravity and likelihood of the probable injury;

     (b)the circumstances of the entry onto the premises;

     (c)      the nature of the premises;

     (d)the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises;

     (e)the age of the person entering the premises;

     (f)the ability of the person entering the premises to appreciate the danger; and

     (g)the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.

     …

     Duty of care of landlord

     9 (1)    Where premises are occupied or used by virtue of a tenancy under which the landlord is responsible for the maintenance or repair of the premises, it shall be the duty of the landlord to show towards any persons who may from time to time be on the premises the same care in respect of dangers arising from any failure on his part in carrying out his responsibilities of maintenance and repair of the premises as is required under this Act to be shown by an occupier of premises towards persons entering on those premises.

     (2)      Where premises are occupied or used by virtue of a sub‑tenancy, subsection (1) shall apply to any landlord who is responsible for the maintenance or repair of the premises comprised in the sub‑tenancy.

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

     (4)      This section applies to tenancies created before the commencement of this Act as well as to tenancies created after its commencement."

268. The Commissioner concluded that the appellant's knowledge of the presence of the door, and his failure to check his position in relation to the door together with other matters, required that he be held to be responsible for his own injuries to the extent of 50%.

269. The respondents appealed to the Full Court of the Supreme Court of Western Australia.  The appellant cross-appealed.  The Court (Murray, White and Scott JJ) upheld the respondents' appeal and dismissed the appellant's action[259].  

     [259]Bartlett v Jones unreported, Supreme Court of Western Australia, 22 February 1999. 

270. The leading judgment was written by Murray J, with whom the other members of the Court agreed. His Honour dealt first with the claim of the appellant for "breach of conditions of the lease". Such a claim was asserted by the appellant as arising by virtue of a combination of s 11 of the Property Law Act 1969 (WA)[260] and s 42(1)(b) and (c) of the Residential Tenancies Act[261].  The appellant's reliance upon these was intended not only to provide an independent cause of action, but also, if made out, to defeat the claim for contributory negligence.

     [260]"Persons taking who are not parties

     11 (1)   A person may take an immediate or other interest in land or other property, or the benefit of any condition, right of entry, covenant or agreement over or respecting land or other property, although he is not named as a party to the conveyance or other instrument that relates to the land or property.

     (2)Except in the case of a conveyance or other instrument to which subsection (1) applies, where a contract expressly in its terms purports to confer a benefit directly on a person who is not named as a party to the contract, the contract is, subject to subsection (3), enforceable by that person in his own name but –

     (a)all defences that would have been available to the defendant in an action or proceeding in a court of competent jurisdiction to enforce the contract had the plaintiff in the action or proceeding been named as a party to the contract, shall be so available;

     (b)each person named as a party to the contract shall be joined as a party to the action or proceeding; and

     (c)such defendant in the action or proceeding shall be entitled to enforce as against such plaintiff, all the obligations that in the terms of the contract are imposed on the plaintiff for the benefit of the defendant.

     (3)Unless the contract referred to in subsection (2) otherwise provides, the contract may be cancelled or modified by the mutual consent of the persons named as parties thereto at any time before the person referred to in that subsection has adopted it either expressly or by conduct."

     [261]"Owner's responsibility for cleanliness and repairs

     42 (1)     It is a term of every agreement that the owner –

     …

     (b)shall provide and maintain the premises in a reasonable state of repair having regard to their age, character and prospective life; and

     (c)shall comply with all requirements in respect of buildings, health and safety under any other written law in so far as they apply to the premises.

     (2)In this section 'premises' includes chattels provided with the premises (whether under the agreement or not) for use by the tenant."

271. His Honour rejected the assertion.  His Honour said that although it was not necessary for the appellant to be a party to the lease to enforce it, expressly in terms it needed to confer a benefit upon the appellant, if not by naming him as a third party beneficiary, at least by unmistakably identifying him as a person of that character, and the agreement in this case did not do so[262]. Whether the reach of s 11 of the Property Law Act may be somewhat less than that I need not decide because, on any view, the appellant does not fall within its intended operation in this case.  Accordingly I need say no more about that Act in these reasons. 

     [262]Bartlett v Jones unreported, Supreme Court of Western Australia, 22 February 1999 at 15.

272. Murray J turned then to the appellant's claim in negligence, and the alternative claim for breach of statutory duty under the Occupiers' Liability Act.

273. Section 9(1) equates the duties of landlords responsible for the maintenance and repair of premises with those of occupiers in certain circumstances. I have already set out its text.

274. His Honour, on the basis of this section said that the Commissioner was right to regard the respondents as occupiers "in respect of the condition of the door as, [he] would think, in a practical sense were the [appellant's] parents as tenants"[263]. If, his Honour said, it was right to regard the state of the door as constituting a dangerous part of the premises in a way causally related to the receipt of the appellant's injuries, then, by s 5(1) of the Occupiers' Liability Act, the respondents were under a duty to the appellant as an entrant upon the premises to take "such care as in all the circumstances of the case [was] reasonable to see that that person [did] not suffer injury or damage by reason of any such danger"[264].   His Honour posed the ultimate question in this way[265]:

     "When all the verbiage is cut away, it seems to me that the question truly at issue between the parties was whether the appellants were in breach of their statutory duty of care or the similarly expressed duty in negligence at common law by failing to inspect the glass door, necessarily with expert assistance, on the evidence, so as to discover that although it was adequate when installed, it did not meet current safety standards at the time of and during the continuation of the lease in a way which would make it more likely to cause injury to a person who came into contact with the door other than in the ordinary way of opening and closing it.  In that event the annealed glass might readily have been replaced at no great expense with safety glass."

     His Honour referred to the inspection that had been made and for which the Tenancy Agreement provided and repeated the evidence that the person making the inspection would have brought to the attention of the respondents any matter affecting the safety of the premises.  But, his Honour said, the door appeared to be in good repair and operating normally.  In those circumstances, he held, there was no breach of any duty of care by the respondents and the appeal should be allowed. 

     [263]Bartlett v Jones unreported, Supreme Court of Western Australia, 22 February 1999 at 20.

     [264]Bartlett v Jones unreported, Supreme Court of Western Australia, 22 February 1999 at 20.

     [265]Bartlett v Jones unreported, Supreme Court of Western Australia, 22 February 1999 at 24.

275. I agree that there was no breach of any statutory duty, but for somewhat different reasons. True it would be, that, if the respondents were responsible as landlords for the maintenance of the premises, they would then come to owe, pursuant to s 9(1) of the Occupiers' Liability Act, a duty of care towards entrants, of the same kind as might be owed by occupiers of premises to entrants.  But that duty is not a duty at large.  The duty imposed by the section was a duty "in respect of dangers arising from any failure on  [the respondents'] part in carrying out [their] responsibilities of maintenance and repair of the premises".

276. There could be no such failure here. The state of the door was not such as to call for any maintenance or repair on the part of the respondents. And, in my opinion, to describe the door as a "danger" whether in terms of s 5 of the Occupiers' Liability Act, if that were relevant, or in terms of its ordinary meaning would be to misdescribe an object in every day, apparently benign usage, in an incalculable number of buildings throughout the country, as it was in the household in this case for thirty or so years. 

277. But there is an even more fundamental reason why s 9 of the Occupiers' Liability Act can have no application here. By cl 2.11 of the Tenancy Agreement the appellant's parents as tenants (and not the respondents as landlords) agreed to "keep all … doors (including glass if any) … in the same condition as they were at the commencement of th[e] Tenancy … ". Accordingly that part of s 9 of the Occupiers' Liability Act which provides "[w]here premises are occupied … by virtue of a tenancy under which the landlord is responsible for the maintenance or repair of the premises … " could not relevantly be satisfied.   

278. The remaining question is whether the respondents owed the appellant any, and if any, what other duty of care.  I will proceed first upon the assumption that the Occupiers' Liability Act does leave room for the imposition of duties at common law, upon landlords, towards entrants other than tenants as occupiers.  The appellant submitted that the respondent landlords in this case did owe common law duties towards the appellant on the basis of the decision of this Court in Northern Sandblasting Pty Ltd v Harris[266].  In that case a child of the tenants suffered severe injuries by electrocution as a result of the failure by a qualified, and apparently competent electrician, to discover and repair a very hazardous defect in the electrical system of a residence which had been let by the appellant to the respondent's parents.  The Court (Brennan CJ, Toohey, Gaudron and McHugh JJ; Dawson, Gummow and Kirby JJ dissenting) held that the landlord was liable to the injured child in negligence.  However, no clear majority ratio beyond that emerges from the judgment although all members of the Court[267] were of the view that Cavalier v Pope[268] should not be regarded as stating the current common law in Australia.

     [266](1997) 188 CLR 313.

     [267](1997) 188 CLR 313 at 334-340 per Brennan CJ, 342 per Dawson J, 347 per Toohey J, 357 per Gaudron J, 365-366 per McHugh J, 370 per Gummow J (agreeing with Dawson J and Kirby J), 391-392 per Kirby J.

     [268][1906] AC 428.

279. Two members of the Court, Toohey J and McHugh J held that the landlords owed to the members of the tenants' household a personal,              non-delegable duty of care, the former on the ground that the combination of an element of control in the landlord, and a special dependence or vulnerability of the child, gave rise to an assumption of responsibility by the landlord[269]:  and the latter on the ground that in undertaking to have the stove repaired the landlord owed the members of the tenants' household a personal duty of which the contractor's negligence had caused it to be in breach[270].

     [269](1997) 188 CLR 313 at 353 per Toohey J.

     [270](1997) 188 CLR 313 at 368-369 per McHugh J.

280. Brennan CJ held the landlord liable on the ground that it owed a duty of care to the tenants and those who, to its knowledge, were intended to occupy the premises under and for the purposes of the tenancy, in respect of defects at the time the tenants were in possession.  His Honour explained that the standard required of the landlord was, as stated by McCardie J in Maclenan v Segar[271] (a case in contract) and that the "duty does not extend to defects in the premises that are discoverable only after the landlord parts with possession"[272].  The passage in which McCardie J in Maclenan defined the contractual duty is quoted by his Honour[273] and would oblige the landlord to make the premises as safe for the purpose "mutually contemplated" by the parties "as reasonable care and skill on the part of any one can make them". 

     [271][1917] 2 KB 325.

     [272](1997) 188 CLR 313 at 340.

     [273](1997) 188 CLR 313 at 336.

281. The difficulties in the application of such a rule were, as noted by  Brennan CJ[274], discussed by Fullagar J in Watson v George[275] where the latter said "that the rule does not impose liability in the absence of negligence on the part of anybody".

     [274](1997) 188 CLR 313 at 336-338.

     [275](1953) 89 CLR 409 at 424-425.

282. Gaudron J found against the landlord on the basis that there had been a breach of a duty of care owed to the members of the tenants' household at the commencement of the tenancy.  Her Honour's opinion was that the obligation arose in relation to a foreseeable risk of injury, even if the defects might only have been discovered on inspection by persons with special skills.  I do not take her Honour in terms to have held that the duty owed was non-delegable, but what her Honour in substance held may not be any different from holding that there existed a duty to eliminate even defects that might have been discerned on inspection by persons with special skills only.  However, it would seem that her Honour, unlike Brennan CJ, Toohey J and McHugh J, would not hold a landlord liable for defects emerging after the beginning of the tenancy unless the defects were ones of which the landlord was aware, or ought to have been aware.  

283. As owner, before the inception of a tenancy, but not later, a landlord does have control over premises.  However a tenancy only comes into existence as a result of an agreement, almost always made after an inspection by the prospective tenant.  Subject to any statutory provisions to the contrary, the parties are free to agree upon such terms as they wish.  It is no answer to say that the bargaining position is an unequal one.  That may or may not be so.  And if it is, it is not a matter for the courts.  In modern times people of limited means only may choose to invest in a house for rental purposes, particularly after their retirement, and comparatively wealthy people may regard the occupation of premises as a tenant, rather than as an owner, as a much more prudent financial arrangement to make.  In the case of commercial premises it is even more difficult to discern on which side, if any, the balance lies.  In recent times, so widespread has been the sale of business premises and the taking of a lease back by large corporations, that the practice is one of which the courts might take judicial notice.  In the circumstances in which the child in Northern Sandblasting was so tragically injured, she was in fact no more vulnerable than a not unreasonably unwary adult would have been.  Children will always be more vulnerable to lesser and greater degrees.  The child in Northern Sandblasting was not dependent in fact on the landlord and the latter did not assume any responsibility for her. 

284. Nor can I with respect regard the fact that the landlord in Northern Sandblasting arranged to have the stove which was the source of the defect repaired, as a ground for saddling it with a personal, non-delegable duty of care.  If this is to be the law then it would be very difficult for any landlord ever to be sure that it has satisfied its duty of care.  In my respectful opinion the courts should be very cautious about extending the range of non-delegable duties, the law in respect of which has already developed in a not entirely satisfactory and principled way[276].

     [276]See Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 394-402 per Kirby J. See also Scott v Davis [2000] HCA 52 at [352] - [353] per Callinan J.

285. The difficulties of application referred to by Brennan CJ[277] and discussed by Fullagar J in Watson v George[278], and the unnecessary importation of a principle not previously applied to cases of owners and occupiers of premises, who are free, subject to statute, to make their own contractual arrangements are reasons why I, with respect, would not, unless I were bound to do so, adopt the principle stated by Brennan CJ.

     [277](1997) 188 CLR 313 at 336-338.

     [278](1953) 89 CLR 409 at 424-425.

286. Not only does there not appear to be any clear, majority view as to the nature and extent of any duty owed by a landlord to a tenant in Northern Sandblasting, but it should also be noted that the landlord from the outset in that case made a concession that it owed a duty of care in negligence to the respondent:  to exercise care to keep the premises reasonably safe for the child's use and to avoid reasonably foreseeable risk to her[279].  As Kirby J says the precise foundation for the concession was never made clear.    

     [279](1997) 188 CLR 313 at 391.

287. It is one thing to say that Cavalier v Pope[280] no longer states the relevant law.  It is an altogether different matter to erect some legal edifice of a duty of care in its place.  It may also be questioned whether the courts should intrude into this area at all.  For centuries obligations and rights in respect of the use, occupation and entry upon premises were matters of contract and common law.  In more recent times, as this case and Northern Sandblasting show, there has been some statutory intervention.  The statute in this case was enacted before Northern Sandblasting was decided, and therefore Cavalier v Pope could then have reliably been taken to be stating the common law on the topic.  The Western Australian Occupiers' Liability Act might properly be regarded as the maximum intrusion upon the common law as it then was, that was intended by the Parliament.  There is certainly no universal view in common law jurisdictions that the rule in Cavalier v Pope should be abolished, or abolished other than by statute.   Prosser and Keeton[281] discuss the differing positions in the various States of the United States, some of which have legislated, and some not, to impose varying kinds of liability upon landlords.  Examples are provided by the authors[282].   Statute and some exceptional situations apart[283], generally the principle for which Cavalier v Pope stands remains an important part of the law in the United States. 

     [280][1906] AC 428.

     [281]Prosser and Keeton on the Law of Torts, 5th ed (1984) at 434-436.

     [282]See Shroades v Rental Homes, Inc 427 NE 2d 774 (1981) (Landlords and Tenants Act); Hall v Warren 632 P 2d 848 (1981) (Building Code); Simon v Solomon 431 NE 2d 556 (1982) (State Sanitary Code); Allen v Equity & Investors Management Corp 289 SE 2d 623 (1982); Second Restatement of Property, §17.6 & Reporter's Note 4; cf Turner v Thompson 430 NE 2d 157 (1981) (failure to light stairs public nuisance under Municipal Code); Slusher v State 437 NE 2d 97 (1982) (reckless homicide conviction of landlords, arising out of death of tenant's guest due to disrepair of landing, reversed on due process grounds).  See also Thornas v Barnes 634 SW 2d 554 (1982).

     The only States with neither a relevant statute nor a decision are Alabama, Arkansas, Colorado, Indiana, Mississippi, South Carolina and Utah.  See Browder, "The Taming of a Duty – The Tort Liability of Landlords" (1982) 81 Michigan Law Review 99 at 113 n 56.

     [283]For example, potentially harmful protuberances such as dangerous awnings; premises leased for admission to the public; common areas; and cases in which the landlord has a continuing duty to repair. 

288. There was discussion during argument of a number of policy considerations including the supposed imbalance of bargaining power to which I have already referred.  The undesirability of any attempt in a case of this kind to assess and weigh the consequences of these, and to prefer one or others of them are referred to by Kirby J in Northern Sandblasting.  His Honour said, and I agree, that the Court really has no way of estimating the economic consequences of the erection of a new duty of care in landlord and tenant situations[284].  Whether one might choose to rent or buy premises may depend on many factors, factors which may change from time to time, such as interest rates, building costs, fluctuating stocks of premises, the relative attractions of real estate as an investment, rates of taxation, and even perhaps rates of immigration.  In short any imbalance itself may fluctuate from time to time.  There is much to be said for the proposition that courts should, develop and apply, to use the language of Prosser and Keeton[285] "a healthy scepticism towards invitations to jettison years of developed jurisprudence in favour of a beguiling legal panacea".   

     [284](1997) 188 CLR 313 at 402.

     [285]Prosser and Keeton on the Law of Torts, 5th ed (1984) at 434.

289. I have concluded that not only did neither the Tenancy Agreement nor the Occupiers' Liability Act create or impose any liability upon the respondents, but also the former by reason of cl 2.11 by clear implication excluded it.  That should be sufficient to dispose of the case.  However, in the courts below and here, as in Northern Sandblasting, the respondents did accept that they owed a common law duty of care to the appellant, without really articulating its content in their submissions to this Court.  If any duty were owed, a matter of which I am far from convinced, I would define it as no more than a duty to provide, at the inception only of the tenancy, habitable premises.  And that the respondents in this case surely did.   

290. I have discussed the issue of the existence and nature of a duty of care in this case, upon the basis that there is nothing in the Occupiers' Liability Act express or implied to exclude it.  The Court did not hear argument[286] that by clear implication that Act does exclude a common law duty of the kind for which the appellant contends, or indeed even of a lesser kind.  It may be that the Occupiers' Liability Act should be read as comprehensively stating (subject to sub-s 9(3)) the obligations of landlords towards entrants:  that having decided to intrude upon the common law, the intrusion was intended in that regard to be complete to the extent stated in the Act, leaving no room for any other liability.   

     [286]There was limited discussion regarding the exclusion of the common law by the Occupiers' Liability Act:  sub-s 4(1).

291. Section 9 imposes a duty upon a landlord only in respect of premises that the landlord is obliged to maintain or repair[287]. When the landlord is responsible for the maintenance or repair of premises should that duty be taken to be comprehensive of the landlord's duties in those circumstances? The duty is owed in respect of matters arising from any failure to maintain and repair. It would seem to be an anomalous and unintended result if the landlord might be under a duty of care in respect of dangers in circumstances in which the landlord is not responsible for the maintenance or repair of the premises. Sub-section 9(3) states that nothing in the section is to relieve a landlord of any duty that he is under apart from the section. Sub-section 9(3) is unlikely to have been intended to have an operation in respect of any lesser duty than sub-s 9(1) imposes. Sub-section 9(3) should, I think, be read as intending to keep intact any contractual, special, or other statutory duties that a landlord might owe to occupants, entrants or others and any duties arising out of a nuisance emanating from the property not caused by the tenants.

     [287]sub-s 9(1), Occupiers' Liability Act.

292. The respondents in this case were not negligent.  They were in breach of no relevant statutory or other duty of care to the appellant.  I would dismiss the appeal with costs.