Jones v Bartlett

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gaudron J,McHugh J,Gummow,Hayne JJ,Kirby J,Callinan J
• Judgment Date: 16 November 2000
• Neutral Citation: [2000] HCA 56,2000-1116 HCA A
• Docket Number: P59/1999
• Date: 16 November 2000
• Court: High Court

Marc Jarrad Jones

Appellant

and

Graham Bartlett & Anor

Respondents

[2000] HCA 56

Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ

P59/1999

HIGH COURT OF AUSTRALIA

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’.

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)

ORDER

Appeal dismissed with costs.

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.

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...