Anderson v Armitage [2014] NSWCATCD 157

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Anderson v Armitage [2014] NSWCATCD 157 Hearing dates: 8 August 2014 Decision date: 21 August 2014 Jurisdiction: Consumer and Commercial Division Before: B Howe, General Member Decision: 1 The application is dismissed. Catchwords: RESIDENTIAL TENANCY AGREEMENT - breach by landlord - compensation Legislation Cited: Residential Tenancies Act 2010 (the Act) Civil and Administrative Tribunal Act 2013 (NCAT Act) Civil Liability Act 2002 Cases Cited: Baltic Shipping Co v Dillon (1993) 67 ALJR 228 Jarvis v Swan Tours Limited [1973] 1 All ER 71 Flight Centre Limited t/as Infinity Holidays v Janice Louw & anor [2011] NSWSC 32 Texts Cited: None Category: Principal judgment Parties: Craig Anthony Anderson (applicant) Duncan Armitage (respondent) File Number(s): RT 14/19617 Publication restriction: None

reasons for decision 1The applicant leased premises from the respondent. The fixed term of the residential tenancy agreement was for 52 weeks commencing on 14 October 2013 and concluding on 13 October 2014. The rent is $2,900.00 per fortnight. 2By an application filed on 10 April 2014, the tenant seeks an order, pursuant to section 187(1)(c) and (d) of the Act, for the payment of $14,800.00. 3Section 187 of the Act sets out the powers of the Tribunal and catalogues the orders that the Tribunal may make. The section does not give rise to any cause of action. 4During the hearing, it became obvious that the tenant relies on section 63 of the Act which reads - 63 Landlord's general obligation (1) A landlord must provide and maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises. (2) A landlord's obligation to provide and maintain the residential premises in a reasonable state of repair applies even though the tenant had notice of the state of disrepair before entering into occupation of the residential premises. (3) A landlord is not in breach of the obligation to provide and maintain the residential premises in a reasonable state of repair if the state of disrepair is caused by the tenant's breach of this Part. (4) This section is a term of every residential tenancy agreement. 5The basis of the claim revolves around the state of the air conditioning system at the premises. The system appears to have worked intermittently. The property is a two level unit, with the external cladding constructed primarily of glass and metal with a flat roof. The tenant claims that such a method of construction will result in the internal space to be hotter than a typical property and, therefore, air conditioning is essential. He relies on his twenty years of experience working in the property development industry to make such a claim. 6The tenant claims that the air conditioning system did not work from the start of occupation until fully fixed on 1 April 2014. He admitted that this state of affairs existed, despite the best efforts of the landlord and the landlord's property manager, Penny Costello, to rectify the problem. Ms Costello attended the hearing but did not take part. The tenant appeared in person and the landlord by telephone as he is located overseas. 7The claim for $14,800.00 is based on a rent reduction of $450.00 per week for 24 weeks, plus an additional four week period to lease the deficient property being $1,000.00 per week for 4 weeks, totalling $14,800.00. 8The tenant's evidence included copies of several emails. The first is dated 12 December 2013 to Ms Costello informing her that there were problems with all three units in that they were "tripping" and so turning off the system. 9Due to the holiday season, three groups of tradespeople were engaged to rectify the problems. Parts were, apparently difficult to obtain and on occasions, the service people brought the wrong parts. 10To successfully pursue an application at the Tribunal, it is necessary for an applicant to have the evidence to prove the claim. It is not sufficient for an applicant to think they have a claim; they have to be able to prove it. This is done by the production of evidence. Evidence can take several forms, such as documents, photographs, sound or video recordings, and witness statements about what that witness saw or heard. Evidence can also be given by sworn testimony at a hearing. 11There are rules of evidence which have been established to ensure fairness in the proceedings. The major one in civil, as opposed to criminal, cases is that the standard of proof rests on the principle of the balance of probability. That is, it is more probable than not that what the person claims happened is true. Where there are competing versions, the Tribunal must be reasonably satisfied that one assertion has been demonstrated to be true in a greater degree than the opposing version. 12In determining claims at the Tribunal, the onus of proof requires the applicant to convince the Tribunal that the applicant is entitled to the relief sought. This means that the applicant must prove each element of the claim, or cause of action, in order to recover damages or loss. 13The problem faced by the Tribunal was to ascertain whether the landlord had committed a breach of the Act or the residential tenancy agreement. By the tenant's own admission, the property manager used her best efforts to have the fault diagnosed and rectified, but to no avail as the repair of the system was delayed by the air conditioning repairers. 14As well, the landlord offered to supply the tenant with mobile air conditioners to be used inside the dwelling. This offer of assistance was declined by the tenant on the basis that these appliances have electrical cords on the floor and would be noisy. 15Additionally, the tenant apparently failed to open windows to take advantage of the cross ventilation system which could operate with the apartment. He has exacerbated the situation of heat within the premises. 16The Tribunal is of the view that the tenant has failed to mitigate his loss, and so by refusing assistance, has attempted to add to the claim against the landlord. 17The claim for the additional sum of $4,000.00 was not explained to the Tribunal, nor was the period of 24 weeks clearly identified. 18The tenant seeks compensation for the disappointment, stress and inconvenience suffered by the tenant and his family. These are elements of the legal term "pain and suffering". 19Pain and suffering is a well-known common law head of damage recoverable in actions for damages for personal injury, whether awarded for tortious conduct or conduct which constitutes a breach of statutory duty. It is classified as being "non-economic loss". On the other hand, damages were not generally recoverable for injured feelings, disappointment or distress due to a breach of a contract. The principle being that such damages are too remote and that most breaches are usually likely to cause some disappointment to the innocent party. 20The High Court of Australia in Baltic Shipping Co. -v- Dillon (1993) 67 ALJR 228 held that the traditional rule should be modified so that damages for disappointment and distress are not recoverable unless they proceeded from mental distress caused by (1) a breach of a contract which was to provide pleasure or relaxation; (2) a breach of a contract to prevent molestation or vexation; or (3) distress consequent on physical injury or inconvenience caused by the breach. 21In that case, the contract was for a "pleasure cruise", the object being to provide for enjoyment and relaxation. The Court held that the passenger was entitled to an award of damages for disappointment, distress and physical inconvenience flowing from a breach of the contract. The liner sank while negotiating a passage between the two islands of New Zealand, thus dramatically ending both the cruise and the contract! 22Earlier in England in the case of Jarvis v Swan Tours Limited [1973] 1 All ER 71, Lord Denning MR held that Mr Jarvis could recover damages, not only for the cost of his holiday, but also damages for "disappointment, the distress, the upset and frustration caused by the breach". The holiday Mr Jarvis experienced differed greatly from the description of the holiday in the sales brochure. 23In 2002, things changed. The New South Wales Parliament enacted the Civil Liability Act (the "CLA") which defined non-economic loss to mean, amongst other things, pain and suffering. 24Section 28 of the CLA casts a wide net capturing any claim for damages for mental harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise. Section 31 states that there is no liability to pay damages unless the harm consists of a recognized psychiatric illness. 25The CLA also sets out that an injury includes impairment of a person's mental condition and that no damages can be awarded for non-economic loss unless the severity is at least 15% of a most extreme case. The maximum amount of damages in an extreme case is declared to be $500,500.00 since 1 October 2010. If it can be proved that the severity of the injury is 15% of the most extreme case, the award of damages is 1% of $500,500.00, that is, $5,500.00 in accordance with a table included in section 16 of the CLA. 26In several cases heard by the New South Wales Court of Appeal, anxiety and distress have been included in the definition of the impairment of a person's mental condition. As well, the same court has held that grief; inconvenience, disappointment and injury to feelings are all elements of pain and suffering which fall within the definition of non-economic loss set out in the CLA. 27The most recent case in the New South Wales Supreme Court concerned an appeal from a local court assessor. A husband and wife sued a travel company. They had relied on its advice as to the best time to take a holiday in Tahiti. They stayed at the travel company's hotel at Bora Bora. On arrival, it was found that the accommodation was located in the middle of a construction site. One third of the beach was inaccessible due to the building works and equipment associated with the renovations. The assessor awarded the consumers compensation for their inconvenience, distress and disappointment 28That litigation was Flight Centre Limited t/as Infinity Holidays v Janice Louw & anor. [2011] NSWSC 32. There, Acting Justice Barr reviewed several cases which had been determined by the Court of Appeal. He concluded that the tourists' hurt feelings were caught as "pain and suffering". Thus this was an impairment of their mental condition and amounted to personal injury. Therefore, the severity of loss had to be at least 15% of a most extreme case and since it was not, the judge set aside the award of compensation. 29Therefore, litigants in the Tribunal would have to demonstrate, presumably by way of medical or psychological report, that their pain and suffering was at least 15% that of a most extreme case, before they can seek any compensation for their hurt feelings. 30Without any evidence to substantiate the claim, it will be dismissed. B Howe General Member Civil and Administrative Tribunal of New South Wales 21 August 2014