Duty of Care s1

2.1.3.1 Landlord’s liability

Judicial Notes

1. This sample charge is designed for use in cases where a landlord is an occupier for the purpose of the s14A(a) of the Wrongs Act. Before using this charge, judges should first read 2.1.3 Occupiers' liability and the judicial notes in that charge.

Landlord’s negligence

Duty of Care

1.  The starting point for consideration of question (1) is this: As landlord of the premises the defendant owed the plaintiff what the law calls a duty of care. A breach of that duty is negligence.

2.  The duty, prescribed by an Act of Parliament, was to take such care as, in all the circumstances of the case, was reasonable to see that the plaintiff was not injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.

3.  The plaintiff contends, and the defendant denies, that the defendant breached that duty.

4.  The plaintiff contends, and the defendant denies, that breach of duty was a cause of the accident and the plaintiff’s injury.

Breach

5.  In deciding what reasonable care required of the defendant, and whether the defendant failed to take such care, the test is an objective one. You assess the practical content of the defendant’s duty by reference to the standard of care which you would expect of an ordinary, reasonable landlord of premises of the type here in question, having regard to all the circumstances. You judge whether or not the defendant breached its duty by asking: what would we expect of a reasonably careful landlord in these circumstances? You decide the content of the duty, and whether the plaintiff has established the breach alleged – whether it be by doing something or by failing to do something – by standing in the shoes of a reasonable landlord before the plaintiff suffered injury, not with the benefit of hindsight.

6.  The Act of Parliament which I mentioned a few moments ago sets out some principles which you must apply in deciding whether the defendant breached the duty which she owed the plaintiff.

7.  A defendant is not liable to a plaintiff for not taking precautions against a risk of injury (‘harm’) unless the risk was foreseeable. What does ‘foreseeable’ mean? It means a risk of injury of which the defendant actually knew, or one of which she ought to have known. You will understand, then, that a defendant cannot avoid liability simply by saying that she did not know of the risk which materialised, if she ought to have known of that risk. Thus, the plaintiff may satisfy you either that the defendant knew of the risk, or that a reasonable person in the defendant’s circumstances would have known of the risk

8.  Next, a defendant is not liable to a plaintiff for not taking precautions where the risk that injury will eventuate is insignificant. A risk of injury which is far-fetched or fanciful is an example of a risk which is insignificant. In this case, has the plaintiff satisfied you that there was a not insignificant risk of injury?

9.  Next, a defendant is not liable to a plaintiff for not taking precautions unless a reasonable person in the defendant’s position would have taken those precautions. Here again, the focus shifts away from the defendant to a reasonable person in the defendant’s position. Has the plaintiff satisfied you that such a person would have taken the precautions which he alleges the defendant did not take in this case?

10.  In deciding whether a reasonable person in the defendant’s position would have taken the precautions, or steps, relied upon by the plaintiff, you should consider all the circumstances which in your judgment are relevant. Parliament has said that you must consider particular matters. But Parliament has also said that you are not confined to consideration of only those matters.

11.  I have referred a number of times to ‘taking precautions’. To be absolutely clear, taking precautions can include both doing things which were not done and not doing things which were done.

12.  Deciding what, if anything, a reasonable landlord would do by response to a foreseeable risk of injury – and thus whether the defendant breached her duty of care to the plaintiff – depends particularly upon balancing out the probability that the harm would occur if care was not taken, the likely seriousness of the harm, and the burden of taking precautions to avoid the risk of harm. Parliament has identified these matters as circumstances which you must consider.

13.  To give you an example, in a particular case the balancing out might involve a foreseeable substantial risk of injury, but the likelihood that any injury sustained would not be severe. At the other end of the spectrum, the situation might be one where there was a foreseeable small risk of injury of potentially severe injury. In each situation, the jury must decide whether a reasonable landlord would have taken some, and what, remedial action. In deciding those questions, the jury must bring to account all other relevant matters, including the burden on the landlord of taking suitable remedial action.

14.  I have referred a number of times to you considering all the circumstances of the matter, and have said that Parliament has set out a non-exhaustive list of matters which, so far as they apply in the particular case, you must take into account. The balancing considerations about which I have been speaking are important. Other matters which the Parliament has said you must consider is the nature of the premises, the knowledge which the defendant had or ought to have had of the likelihood of persons being on the premises, the age of the person on the premises, and the ability of the person on the premises to appreciate the danger.

15.  You will realise, I am sure, that the matters which Parliament has said you must consider are matters which you would in any event sensibly consider in coming to a conclusion whether the defendant breached its duty of care to the plaintiff.

16.  You will realise also that the list of matters does not say what, if anything, the defendant should reasonably have done in response to the risk of injury. It does not tell you what the remedial action should be. What the defendant’s reasonable response was is a matter for your consideration, having regard to all the circumstances of the case.

17.  The plaintiff must prove, as I have said, not only that the defendant breached her duty of care to him, but that such breach was a cause of injury to him, if you are to answer ‘yes’ to question (1). The plaintiff does not have to prove each particular of the breach of duty upon which he relies. But he must satisfy you of at least one breach, and that such breach was a cause of his injury – not the only cause, or predominant cause; or the best cause - just a cause.

Causation

18.  As I say, when it comes to determining whether there was negligence on the part of the defendant which was a cause of accident and injury to the plaintiff, the defendant’s negligence does not have to be the sole cause of the plaintiff’s injury, loss or damage. It need only be a cause.

19.  There may be many causes of a plaintiff’s injury, loss and damage. But all that the plaintiff in this case, like any plaintiff, must satisfy you of, on the balance of probabilities, is that the defendant’s negligence was a cause of the injury, loss and damage of which he complains.

20.  As a matter of law, however, before you can be satisfied that the act or omission by the defendant was a cause of the harm suffered by the plaintiff, you need to be satisfied that, without the negligent act or omission, the harm would probably not have occurred.

21.  We call this the 'but for' test: unless you can say, 'but for' the negligence the harm would probably not have occurred, you cannot say the negligence was a cause of the harm.

22.  To take an example away from this case, ordinarily you might conclude that but for a driver’s negligence in texting whilst driving he probably would not have driven into a pedestrian; thus his negligence caused the pedestrian’s injuries. But if the facts were that the pedestrian ran onto the road from behind a parked bus at that very moment the defendant’s car drew level, so that whether or not the driver was texting the accident would probably have occurred, a jury might conclude that it could not be said that ‘but for’ the driver texting the accident would probably not have occurred. In those circumstances the driver’s carelessness in texting at the time would not be a cause of the plaintiff’s injury.

23.  Causation is not some scientific or philosophical process, but a question of whether you, as the triers of the facts, conclude that the defendant’s negligence was a cause of the injury.

Landlord’s breach of contractual term

24.  In addition to a claim in negligence, the plaintiff has a claim against the defendant for breach of contract. The claim is that the defendant breached clause 5(a) of the Residential Tenancy Agreement (Exhibit P2).

25.  In order to establish this claim, the plaintiff must prove (again on the balance of probabilities) that the defendant did not ensure that the premises were maintained in good repair; and that this breach (if you find it proved) was a cause of injury to the plaintiff. [I will not go through causation again – it is the same for this cause of action as it was for negligence].

26.  So there are two issues:

a)  has the plaintiff established that the defendant did not ensure that the premises were maintained in good repair; and

b)  was any such breach a cause of injury to the plaintiff?

27.  The question of reasonable care does not arise with respect to this claim made by the plaintiff. The contractual term (clause 5(a)) required the defendant to ensure that the premises were maintained in good repair. The words “good repair” are ordinary English words. What the clause means is that there was an obligation on the defendant to ensure that the premises were kept in such repair as having regard to the age, character, and locality of the house, would make it reasonably fit for occupation by a tenant like the plaintiff.

28.  If you find that the defendant did not ensure that the premises were kept in such a state of repair, then you will find a breach of clause 5(a) of the contract between the parties – and the question will then become whether you find that that breach was a cause of injury to the plaintiff. If you find the plaintiff has established both of these matters (breach and causation), then you will answer question 2 “Yes”.

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