Statute law and common law

I see a lot of confusion arising on this forum because of people appearing not to understand the issue of statute law and common law. If you know the distinction and I'm telling you to suck eggs, apologies, and farewell, but my reading of the forum suggests many forumites could use this lesson. :)

I am not (yet) a lawyer - a second-year law student - but I hope that's an advantage because I think I can still explain things in 12yo language. :) If I've made mistakes, I trust one of the several lawyers on the forum will correct any errors.

Statute law is what most people think of as "the law"; it consists of Acts and Regulations, and is the law made by Parliament. You can look up the relevant Act and it explicitly says what you can and can't do, and the consequences of violating those laws.

But there is also an enormous body of "common law", which - whilst it may not be written explicitly as "Thou shalt..." - is still binding law, just as much as statute law. Common law is huge, and governs much of contracts, torts (negligence, defamation, etc.), and many other areas of law. It consists of all the legal principles established by decisions of Courts over time, binding precedents, interpretations, and so on.

Most of what we do as property owners - selling and leasing - is based in contract law and negligence, which is governed by both statute and a huge body of common law, so it's important to understand that statute is far from the end of the story with regard to our legal obligations as property owners.

Frequently I see people on the forum saying things like: "Tell me where it says I have to 'have a professional test my smoke alarms' / 'fix something within 24 hours' / 'replace old glass with safety glass'".

For all of these, there usually isn't a statute law that says you have to do these things; they're matters of common law, consisting of the previous decisions and interpretations of judges, and how those decisions bind future courts and are likely to be applied to new scenarios.

Previous decisions are usually quite good guidance as to how a new case would go, but one usually can't give a black-and-white answer on common law matters, because it depends on how the judge interprets the facts of the particular case, and what elements of previous decisions they consider binding upon them, etc.

So considering the smoke alarms issue - which comes up again and again :) - it's true that there isn't (as far as I'm aware) a statute saying that you have to get experts to do it. Not disputed. Your insurer probably doesn't require it. Neither of those points are why some people - including me - might advocate that you would be wise to get a professional to do it.

The reason is because if somebody is killed in a fire in your IP, and you have inspected/tested the alarms yourself, you could be sued in negligence, which is largely governed by common law. The fact that the statute doesn't require it to be inspected/tested by experts doesn't mean that it won't be required in a negligence action under common law; it just means you won't be fined under that statute.

What a court would likely do in such a situation is ask whether a landlord's decision to inspect their smoke alarms themselves, rather than getting an expert to do it, was a reasonable decision. Factors that I think they'd take into account in deciding whether that was a reasonable decision would include:

  • the availability of experts to do smoke alarm inspections - clearly available
  • the cost of having them do it - < $100 per house/unit per year
  • the practicality of having them do it - clearly practical, as it happens all the time
  • whether an amateur could miss things that an expert would find - I think it's clear that many smoke alarms are of the wrong type and/or incorrectly positioned, so an expert arguably does add value
  • the potential consequences of screwing it up - i.e. multiple deaths

Countering that, there is guidance from fire services etc. on the web advising people how to test smoke alarms themselves, and that the statute doesn't require it to be done by experts.

Based on all those considerations, my personal view is that - based on the potential severity of the consequences, and the relatively low cost of getting an expert to do it - a Court is likely to find that it is not reasonable to DIY in order to save <$100. I think that a Court would be likely to find that such a landlord is negligent.

But I can't be sure; no such case has yet been tested, and whilst statute says what the consequences will be before something happens, common law is generally made on an "as required" basis when cases come up that have to be decided.

The question is one of risk management, whether you think $100 a year is worth the potential risk of being the losing test case. :eek:

If you had hired an expert, even if they'd stuffed it up, you're likely protected in an action in negligence by having hired them. The question the court would ask is whether the landlord took reasonable steps to mitigate the risk of harm to the tenants, and it's exceedingly unlikely that a landlord who hired experts to test and inspect alarms would be found to have acted unreasonably.

The situation could be clarified by either:
  • Parliament making an Act or Regulation explicitly stating that it is acceptable for non-experts to perform the testing, and that them doing the testing - provided it's recorded etc. - can not be the basis for an action in negligence, or
  • a test case coming before a court and the court finding that it's reasonable for a landlord to do such tests themselves. (Which is certainly possible.)

Whilst I've talked about smoke alarm testing, I really only did it to try to illustrate the difference between statute law - which says "do this or else X will be the consequence" - and common law - which is what a court is likely to decide based on a set of known considerations and precedents, and isn't laid out beforehand. The same principles apply to any other issue that has aspects of both statute and common law.

A case decided at Supreme Court (or equivalent) or lower level in a state will only have influence in that state. So a case that decides that DIY testing and inspection is OK in the Supreme Court of Queensland, doesn't necessarily mean that an interstate court would view it the same way; it would then be the common law in Queensland only.

A case decided at Court of Appeals (or equivalent) or High Court level has national implications and is likely to result in the common law being established nationwide, consistent with that decision.

Even a case being decided doesn't mean that the common law is set in stone; it could still be over-ridden by a higher court decision going the other way, or by statute. (Parliament could pass an explicit statute after a decision, which would affect all cases going forward, but wouldn't change the outcome of decided cases.)

TL;DR: Just because there's no statute saying "you have to do X", doesn't mean there aren't legal consequences if you don't do it. Common law is an enormous and important consideration, and makes it near impossible to say with any confidence - as happens so often here :) - "legally I don't have to do X" in the absence of a statute explicitly stating that X is not a requirement, or strong and applicable precedents.
 
That's why lawyers are so highly regarded. Sometimes something seems so apparent but the person will fail to consider other areas of law.

That said there are several industries run by enterprising people chasing a buck.
- Smoke detector, fire extinguisher and safety exist sign inspectors
- Safe testing on electrical tools and leads (often in a non-hostile environment)..The test and tag industry is full of rogues telling fibs.

I would think a single detector validated as working doesn't mean jack when the landlord converts to apartment into a maze of corridors and 2x3m bedrooms for students. A fire hazard that fails the design approval and means the detector wont work as intended. This precise issue killed a student and raises govt attention that fire compliance was being bypassed by slum landlords acting (illegally. ?)
 
To test most household smoke detectors, one simply needs to follow some very easy instructions, push a button and listen to the appropriate noise. A smoke detector is designed to err on the side of caution and be extremely simple to operate and replace.

Shouldn't the law take into account that it doesn't require an 'expert' to perform this task.

It seems to me that the real issue at law is more likely to be the paper trail created by an invoice from said 'expert', that the smoke detector was actually tested. Without that invoice, there's often little to prove that it actually was tested.
 
Would the law take into account what makes a smoke alarm tester an 'expert'?
Not in a case in negligence of a tenant against a landlord; the only issue is whether the landlord was reasonable in hiring somebody to test them. If the landlord hired a friend with no qualifications to do it, then possibly it wasn't reasonable for the landlord to hire them. But if the landlord hired anybody who held themselves out as an expert, it's unlikely the court would require the landlord to investigate their qualifications in order for hiring them to be "reasonable".
To test most household smoke detectors, one simply needs to follow some very easy instructions, push a button and listen to the appropriate noise.
If that were the only issue, yes. But a good inspector should also give advice about adequacy of the number, type, and placement of smoke alarms. Very few people know enough to get that aspect correct.

If the only issue contributing to the fire's damage were that the batteries were flat and thus no alarm sounded, and the landlord can demonstrate that they'd put in fresh batteries as required, I agree it's unlikely to be an issue that an expert wasn't used.
 
The whole question of periodic expert reviews for smoke alarms annoys me. I agree they need to be properly and appropriately installed (presumably by an expert), but like gas in the oven or water in the tap, the battery is a consumable item.

It's not rocket science nor unreasonable to expect a tenant to test a few times a year and replace a battery. Seems a lot like passing on responsibility for their own safety to me.

I also utilise the periodic reviews provided by my managing agents. Regardless of how much it annoys me, I don't want to be liable because a tenant disconnected it because they're a bad cook.

It's just freaking annoying.
 
Thank you Perp, for all your time and effort spent on writing such a detailed post.

You did a great job. Not only it explains all the buzz around fire alarm systems checks; but it also gives a broader view on how the Australian legal systems work.

Thank you again.
 
The whole question of periodic expert reviews for smoke alarms annoys me. I agree they need to be properly and appropriately installed (presumably by an expert), but like gas in the oven or water in the tap, the battery is a consumable item.

It's not rocket science nor unreasonable to expect a tenant to test a few times a year and replace a battery. Seems a lot like passing on responsibility for their own safety to me.

I also utilise the periodic reviews provided by my managing agents. Regardless of how much it annoys me, I don't want to be liable because a tenant disconnected it because they're a bad cook.

It's just freaking annoying.

Its a scam just like test and tagging in non-hostile environments (ie offices) . Soon there will be an inspection for stair treads, a bathroom floor slipperiness index, slip hazards near a urinal and other such "risks". All meant to portray a liability if you don't do it.

Question : How many landlords have a double sided deadlock on a exit door ? And if they don't the tenant asks for it. However, Its a higher risk than anything. That and barred / locked windows = death in a small fire as access /entry are both stopped. Smoke kills first. The number of fools who lock themselves in are astounding. You cant test for that can you ? The DSDL was invented to prevent thieves taking possessions out after gaining entry. It wasn't designed to retain people living in the home. That and a tenant who puts a clothes dryer in a bathroom. A fire and electrical hazard !

My PM includes a lengthy lists of Do and Donts such as the above in the lease. Each needs an intial beside it. Political correctness gone mad.
 
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