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Occupiers’ Liability as Illustrated in Baker v Gilbert [2003] NSWCA 113

Discuss about the Occupiers Liability as Illustrated in Baker v Gilbert.

In Baker v Gilbert & 2 Ors NSWCA [2003], Ms Gilbert, the first respondent, was greatly hurt after jumping and falling awkwardly off a plastic ladder at the appellant’s premises. She had jumped to avoid falling off as one of the footplates was unstable. She then sued the appellant for damages citing that the appellant’s failure to inspect and maintain the ladder had caused her injury. The court of first instance found the appellant negligent and awarded damages accordingly. Mr Baker, the defendant in the original case, appealed against this finding. The issues arising from the case that will be discussed in this paper are whether the footplate was significantly unstable and that such instability was as a result of loose bolts and whether the appellant failed to discharge his duty of care in maintaining the ladder. The legal issues arising from these grounds are based on the law of negligence with specific reference to occupiers’ liability and the duty of care of an occupier to visitors on his land. These issues will be discussed in favour of the plaintiff/respondent in this case.

The underlying principle of ‘The Law of Negligence’ over the past century has been indemnifying those who are harmed from the fault of another (Bugg 2006).  The prevailing concept of Tort Law, with respect to negligence, was birthed from the benchmark House of Lords decision in Donoghue v Stevenson [1932] UKHL 100. Lord Atkin, in this case, stated that it was necessary to uphold reasonable care to refrain from acting or failing to act in a way foreseeable to cause harm to a neighbour. A neighbour was defined as one closely or directly affected by the act or omission (Bermingham 2011).

According to McMahon & William (2000), the law with regard to occupiers’ liability in Australia had not been tainted by the modern concept embodied by Lord Atkin in the Stevenson case up until the 1980s. Australia had previously applied the orthodox common law standing where an occupier owed different standards of care to different categories of persons on his premises (Handford & McGivern 2015). All this changed in Australian Safeway Stores Pty Ltd v Zaluna [1987] 162 CLR 479 where the court did away with the classification of injured persons as either licensees or invitees. Since then it is the common law of negligence that has influenced the determination of issues of occupier’s liability (Handford & McGivern 2015). However, over the years Australian parliaments have developed various pieces of legislation that have affected the application of the law of negligence, and more specifically occupiers’ liability (Law Reform Commission 1988).In jurisdictions without occupiers’ liability legislation, the High Court has maintained the common law approach in developing jurisprudence (Handford & McGivern 2015).

History

The tort of negligence is characterised by the conduct of the defendant in a given situation (Steele 2014). Alderson B classically defined negligence as the act or omission of that which a reasonable man, under normal circumstances, would do or not do (Blyth v Birmingham Waterworks Co [1856] 11 Ex 181 at 784). As a tort, negligence is characterised by the elements of; a legal duty of care, breach of said duty, and damage suffered as a consequence of the breach (Bermingham 2011). The distinguishing test for negligence is the standard set by a reasonable man when placed in the same circumstances as the defendant in question (Steele 2014). In Nettleship v Weston [1971] 2 QB 691, it was established that this test was an objective one that could not be tweaked to accommodate certain qualities of a particular defendant.

In the Baker v Gilbert case, Ms Gilbert claimed that the appellant was negligent in his failure to inspect and maintain the ladder adequately. The issue in question was an omission to act in a reasonable manner which consequently led to the harm of another. The issue of negligence arises from the instability of the footplate which was caused by loose bolts. The respondent and her solicitor provided photographic evidence which showed a gap between the footplate and the coaming. They further sort the evidence of an expert who told the court that the gap as seen was likely to cause a worrying degree of instability and fear to anyone who attempted to stand on the footplate. This evidence goes to show that in the eyes of a reasonable man, the gap was quite noticeable and this should have elicited action from the appellant to tighten the bolts so as to close the gap. The appellate court upheld the District Court’s decision that there was a grave degree instability caused by loose bolts.

A duty of care is an imperative condition to establish liability for negligence in any given case (Bermingham 2011). The claimant must prove that a duty of care was owed to them by the defendant so that the breach of the duty can amount to liability on the dependant’s part (Steele 2014). This proof of duty is established under the ‘but-for’ test which was well elucidated in Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428. If the injury to the claimant would not have happened ‘but-for’ the defendant’s breach of duty then the defendant’s negligence caused the harm.

The Law of Negligence

Buller’s Nisi Prius (1768) is credited for being the first to unify the concept of duty as the mandate of every person to ensure they pursue reasonable care so as not to cause harm to their neighbour (Lunney & Oliphant 2013). In an event that injury is sustained, however, it is expected that the injured prove that the harm was as a result of the act done (Buller 1768). To ascertain breach, it is important to consider the predictability of the risk as well as the rationality of the defendant’s actions (Law Vision Pty Ltd 2008). The ingredients for a duty of care were established in Caparo v Dickman [1990] 2 AC 605 as requiring that; the injury caused was foreseeable, the relationship between parties was one of proximity or neighbourhood and the situation called for the imposition of a duty of care. The Australian High Court has, however, since Sullivan v Moody (2001) 75 JLR 1570, abandoned proximity and adopted a ‘multi-factoral’ test to establish duty (Steele 2014).

In Baxter v Steele, the facts show that Ms Gilbert at the time of the injury had been using Mr Baxter’s pool with his permission. It is therefore expected that knowing the claimant would be within the premises, the defendant had a duty to ensure it was safe for her use. The court, in this case, applied the conditions outlined in Hackshaw v Shaw (1984) 155 CLR 614 and later upheld in Australian Safeway Stores v Zaluna where the ordinary principles of negligence with regard to proximity, foreseeability and reasonableness were applied to determine the existence of duty and breach of said duty. The court held that the claimant was indeed owed a duty of care.

The definition of an occupier is deduced from case law as one who has effective control of the premises, and not necessarily one who has ownership (Steele 2014). The ‘occupier’ title is also not restricted to one person as various people may have the power to exercise control over a piece of property at a time as illustrated in Wheat v Lacon [1966] AC 552 (Steele 2014). Occupiers’ liability, on the other hand, deals with the duty of care an occupier owes visitors, whether lawful or otherwise, in his premises (Law Reform Commission 1988). Lawful visitors are those who enter the premises on the express or implied permission of the occupier (Harlow 2005). The issue to consider under occupiers’ liability is what reasonable measures is an occupier expected to take to ensure the safety of all who venture into his premises (Law Reform Commission 1988).

The Common Duty of Care

Historically, the question of occupiers’ liability had been answered by subjecting different categories of entrants to land to different standards of care (Simpsons 2000). Dixon J, in Lipman v Clendinnen [1932] 46 CLR 550, found this test to be complicated and wanting. In Australian Safeway Stores, however, the classification of claimants was halted and instead the common law rules of negligence with regard to foreseeability, proximity and reasonableness were adopted. The Council of the Shire of Wyong v Shirt [1979] 146 CLR 40 established that reasonableness depended on the particulars of the case which were tested against a variety of factors (QORF 2002). This is the multi-factor approach applied by the High Court of Australia in Sullivan v Moody and other cases to date.

In various Australian jurisdictions, parliaments have implemented legislature that contributes to the determination of an occupier’s liability to his visitors (Handford & McGivern 2015). Section 2 of the Occupiers’ Liability Act 1957 bestows the common duty of care on an occupier to all visitors in his premises. It is expected that the occupier will take measures to ensure that every visitor is safe while using the premises for what he was invited or allowed to do (OLA 1957, s2 (2)). This ‘common duty of care’ expressed in statute is similar to that expected under the ordinary rules of negligence as illustrated by Lord Denning in Wheat v Lacon (Bermingham 2011). The Civil Liability Act 2002 also outlines various factors to consider with regard to the liability of an occupier (Slabacu 2012). However, the debate, legislations and jurisprudence over the years have gone to show that where it can be proved that the defendant owed a duty, and the duty was breached by the defendants act or omission, and this breach led to an injury on the claimant then the claimant is entitled to damage (Bugg 2006).

In the case study provided, the invitation and subsequent permission to use Mr Baker’s premises and swimming pull made Ms Gilbert a lawful visitor upon the land. As a lawful visitor, she was entitled owed a duty of care which under previous common law notions would have been of the highest standard. However, guided by the principles in Hackshaw v Shaw, as applied by the District Court, provided a test of predictability, proximity and reasonableness with regard to the occupier’s duty towards Ms Gilbert. On the principle of predictability, the Ms Gilbert and her solicitor provided evidence that proved that the bolts were loose. This was evident by the size of the gap visible between the coaming and the footplate. As the expert explained, it was clear that anyone could see that such a gap was likely to cause great instability. On the principle of proximity, as the claimant was an invited and expected guest to the premises, the appellant was tasked to ensure her safety as she used the premises on the terms agreed. Thirdly reasonableness is the crowning factor in determining liability and in this case, the claimant’s evidence made it clear that any reasonable person could see that the ladder was likely to be unstable.

Conclusion

In conclusion, where a person suffers harm on private land, the occupier, that is the one with effective control, is usually held responsible (Legal Services Commission 2016). However, the responsibility is only upheld where the injured party can prove that the damage suffered was as a result of the occupier’s action or inaction and that a duty of care was owed to them (Steele 2014). The common law test for the existence of a duty and its subsequent breach is one of reasonableness, foreseeability and proximity outlined in Caparo v Dickman. However, various legislation such as the Civil Liability Act have created factors to show that this test is only one of the conditions to be satisfied in determining liability (Slabacu 2012). In areas without legislation, however, the High Court has continued to apply the basic principles outlined in common law as illustrated in Hackshaw v Shaw. In the case study provided it is evident that the Ms Gilbert had proven all the qualities required to show that the appellant had failed to discharge his duty of care. 

References

Bermingham, V 2011, Nutcases: Tort, 6th edn, Sweet & Maxwell, London. 

Bueller, F 2010, An institute of the law relative to trials at Nisi Prius, Originally Published in 1760, Gale ECCO. 

Bugg, T 2006, ‘Negligence and Damages: Personal Injury, Property Damage and Pure Economic Loss’, speech, Law Council of Australia, 26 May, viewed  12 September 2016, from https://www.lawcouncil.asn.au/lawcouncil/images/LCA-PDF/speeches/20060526Negligenceanddamages.pdf. 

Handford, P & McGivern, B 2015, ‘Two problems of occupiers’ liability – Part one’, Melbourne University Law Review, vol. 39, pp 128-174, viewed 12 September 2016, from https://law.unimelb.edu.au/__data/assets/pdf_file/0004/1774552/04-McGivern-and-Handford.pdf. 

Harlow, C 2005, Understanding tort law, Sweet & Maxwell 

Law Vision Pty Ltd 2008, ‘Tort Law’, viewed 12 September 2016, from https://www.lawvision.com.au/uploads/PDFs/Tort%20Law%20.pdf 

Legal Services Commission 2016, ‘Accidents on Private and Public Property’, viewed 12 September 2016, from https://www.lawhandbook.sa.gov.au/ch01s01.php. 

Lunney, M & Oliphant K 2013, Tort law: test and materials, OUP, Oxford. 

McMahon, MEB & Binchy, W 2000, Law of Torts, 3rd edn, Butterworths. 

Simpsons & Simpsons 2000, ‘The Duty of Care’, Sydney, viewed 12 September 2016, from https://www.simpsons.com.au/documents/visarts/visarts89/18Dutyof.pdf. 

Slabacu, B 2012, ‘Occupiers’ Liability and Foreseeable Risk of Harm’, in Modaq, viewed 12 September 2016, from https://www.mondaq.com/australia/x/179504/Personal+Injury/Occupiers+liability+and+foreseeable+risk+of+harm. 

Steele, J 2014, Tort law: text, cases and materials, OUP, Oxford. 

The Law Reform Commission 1988, Occupiers’ Liability, Report No 42, Australian Government. 

Queensland Outdoor Recreation Federation (QORF) 2002, Occupiers’ liability to recreational users, Queensland Government.

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