Fabre v Lui  NSWCA 157
June 15, 2015
- House owner (respondent) engaged handyman to affix range-hood to kitchen wall
- Three years later range-hood fell onto tenant (appellant) of home
- Whether respondent breached duty owed to appellant in not making enquiries into handyman’s qualifications / experience
- Appeal dismissed
- Judgment handed down 10 June 2015
- Key judgment – Macfarlan JA.
The case was conducted on a confined basis by the appellant. It was alleged that the duty of care that the respondent owed to the appellant had been unreasonably delegated to an incompetent contractor. It was submitted that the respondent owed the appellant a duty of care because the respondent occupied the house at the time the range-hood was installed, and arranged the installation.
The appellant did not seek to rely on any duty the respondent may have owed to her as a landlord – see Northern Sandblasting v Harris, Jones v Bartlett and Sakoua v Williams.
In December 2007 the existing range-hood at the house ceased working after an electrical storm. The respondent engaged a contractor from the local paper to install a replacement. She paid him $250 for this work and was unable to identify him later.
The advertisement in the local paper referred to the contractor as a handyman / tradesman. The respondent made no enquiries about his experience or trade qualifications. The respondent gave evidence that it was Christmas and difficult to find someone to do the work. The respondent knew nothing about installing range-hoods and said she did not inspect the contractor’s work.
No evidence was produced as to the conversations that the contractor and the respondent must have had about the request to do the work, the contractor’s acceptance, the contractor agreeing to actually select, purchase and bring the range-hood to the house and the performance of the work.
There was expert evidence that the range-hood was not installed properly. It had been affixed with two screws whereas the installation instructions issued by the manufacturer suggested at least four screws be used.
The appellant submitted that the primary judge failed to properly apply the principles in s 5B Civil Liability Act 2002 (NSW), and that as a consequence the appeal court should reconsider the question of negligence. The respondent’s counsel conceded that the submission that the primary judge did not follow the abovementioned statutory principles had some merit.
The appeal court found that:
- The appellant argued that the respondent should have made oral enquiries about the contractor’s trade qualifications or experience, and sought objective evidence such as details of his carpenter’s license
- Such submission raises an issue about whether such enquiries would have avoided the incident – however causation was not considered any further because the appeal court found that the respondent did not act negligently in failing to make such enquiries
- The key question was whether a reasonable person, in the circumstances, would have taken the alleged precautions (see s 5B(1)(c) – Queensland equivalent s 9(1)(c) Civil Liability Act 2003 (QLD))
- To assess this question the appeal court had to have regard to those factors in ss 5B(2)(a) to (d)
- There was a high probability that the harm suffered by the appellant would occur if care was not taken to retain a competent installer, because the range-hood was heavy and the kitchen was frequently used – see s 5B(2)(a)
- On the same basis the risk of injury was not insignificant – see s 5B(2)(b)
- Questions could have been asked of the contractor and alternate quotes sought, although whether this was practical at Christmas time was questionable – see s 5B(2)(c)
- There was significant social utility in the risk that created the harm because the use of a range-hood allowed the clean and orderly performance of the essential activity of cooking – see s5B(2)(d)
- Although some factors did suggest further enquiries ought to have been made, a reasonable person in the respondent’s position would not necessarily have made the enquiries alleged. A reasonable person might have done so, but the question posed by s 5B(1)(c) is whether a reasonable person would have
- The appeal court’s reasoning was based upon the following:
- The work was minor, and certainly the type a handyman could do
- The contractor held himself out as a tradesman or handyman in the local newspaper, a source from which one could expect to find such a suitable contractor
- It can be inferred that the contractor indicated to the respondent a willingness and readiness to do the work, which included obtaining an appropriate range-hood. This conduct would have included an implicit representation that the contractor had the ability to complete the work to an acceptable standard
- The implicit representation was supported when the handyman arrived at the home with what appeared to be a suitable range-hood
- The contractor removed the existing range-hood and installed it without difficulty.
The decision provides a helpful analysis of how important provisions of the Civil Liability legislation ought be interpreted, and confirms that simply because a reasonable person might have taken a precaution does not mean that a breach of duty has occurred.
Further, the decision provides some comfort to home owners and their insurers, in that home owners ought not have to run reference / qualification checks on contractors who appear capable of completing standard maintenance work.
Authored by Scott Cowell, Partner, Brisbane.
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