STATE OF NEW SOUTH WALES v WATTON [1998] NSWCA 291

STATE OF NEW SOUTH WALES v WATTON SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

POWELL JA, BEAZLEY JA and FITZGERALD AJA 17 November, 7 December 1998

[1998] NSWCA 291

TORT — NEGLIGENCE — DUTY OF CARE — content of duty of care — whether an existing independent duty upon landlords to inspect premises — standard of care — Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 — Residential Tenancies (Savings and Transitional) Regulations, regs 21, 22 — Residential Tenancies (Residential Premises) Regulations, regs 6, 8.

The respondent suffered electric shock due to faulty electrical wiring whilst a tenant of the appellant. The trial judge found the appellant had breached its duty of care to the respondent as tenant, holding that Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 established that a landlord owed a duty to a tenant inspect premises, which duty was breached, causing damage.

On appeal, the appellant challenged the trial judge's reasoning process and her interpretation of Northern Sandblasting Pty Ltd v Harris.

HELD, dismissing the appeal:

1. (a) There is no independent duty upon a landlord to inspect premises.

(b) Where a duty of care is owed, the content and standard of care are to be determined in the particular circumstances of the case.

(c) A landlord owes a duty of care to a tenant to make leased premises as safe for the purpose as reasonable care and skill on the part of the landlord can make them.

2. In the circumstances of this case, the duty of care required the appellant to inspect the leased premises and carry out such inspection with due care. As a matter of fact, the trial judge found that it was the failure of the appellant to carry out the inspection with due care which caused the respondent's injury, notwithstanding the trial judge's error in respect of Northern Sandblasting Pty Ltd v Harris. This finding was open to her on the evidence.