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Occupiers' Liability: A Review of the Common Law and Statutory Reforms in Australia, Study notes of Law

Property LawContract LawTort LawCivil Law

The occupiers' liability rules in Australia, discussing the present law, special rules, rationales, problems, and proposed reforms. Topics include negligence principles, ownership, liability for omissions, and the Victorian model. The document also covers the issue of criminal trespassers and their liability.

What you will learn

  • What are the special rules governing occupiers' liability?
  • What are the problems with the current occupiers' liability rules?
  • What are the rationales behind the occupiers' liability rules?
  • What reform options have been proposed for occupiers' liability in Australia?
  • What are the present laws regarding occupiers' liability in Australia?

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Download Occupiers' Liability: A Review of the Common Law and Statutory Reforms in Australia and more Study notes Law in PDF only on Docsity! The Law Reform Commission Report No 42 OCCUPIERS’ LIABILITY Australian Government Publishing Service Canberra 1988 Unless otherwise indicated this report reflects the law as at 31 November 1987 @Commonwealth of Australia 1988 ISBN 0 644 06896 5. Commission Reference: ALRC 42 The Law Reform Commission is established by section 5 of the Law Reform Commis- sion Act 1973 to review, modernise and simplify of the law. The first members were appointed in 1975. The offices of the Commission are at 99 Elizabeth Street, Sydney, NSW Australia (Tel (02) 231 1733; VOCADEX (02) 223 1203). Printed in Australia by Finepress Offset Printing, REVESBY NSW. Contents/v Reduced liability? Reduced liability to criminal trespassers Problems with legislation Application of the common law Criminal trespassers - conclusion Summary 5. Landlord and tenant Introduction The present law The rule in Cavalier v Pope Landlord’s immunity The tenancy agreement Examples of the rule Circumstances where the rule does not apply Nuisance cases Licensees Other cases Where some other relationship exists Explanation and justification Explanation Consistent with old occupiers’ liability rules Criticism of the rule Unfair allocation of responsibility Uncertainty Options for reform A proper allocation of safety responsibilities Minimum housing standards not present concern Insurance Conclusion Implementation Varying legislative models Victoria Western Australia South Australia Recommendation Preferred approach Land tenure in the ACT Squatters 6. Independent contractors The present law Vicarious liability Non-delegable duties 57 57 58 59 60 61 62 63 63 63 64 65 66 66 67 68 69 70 70 71 72 72 73 74 74 74 75 76 77 77 77 78 79 80 80 81 82 83 83 84 vi/ Con tents Uncertainty in the law 85 The effect of the Australian Safeway decision 86 Reform? 87 7. Exclusion of liability Fkeedom to exclude liability for negligence The present law Exclusion by notice or agreement Exclusion when entrant voluntarily accepts risk Legislative preservation of these rules Exclusion of liability to third parties Recommendation Appendix A: Draft legislation List of submissions Table of cases Table of legislation Bibliography 88 88 88 89 90 91 92 Terms of reference AUSTRALIAN CAPITAL TERRITORY - OCCUPIERS LIABILITY I, GARETH JOHN EVANS, Attorney-General of Australia, HAVING RE GARD TO - (a) the Community Law Reform Program for the Australian Capital Territory; and (b) criticisms that have been made of the operations of the law in force in the Australian Capital Territory concerning the liabilities of oc- cupiers and lessors of property to entrants, in pursuance of section 6 of the Law Reform Commission Act 1973, HEREBY REFER to the Law Reform Commission, at its suggestion, the following matters as part of the Community Law Reform Program - (a) whether the law in force in the Australian Capital Territory con- cerning the liabilities of occupiers and lessors of property to entrants (including trespassers) is adequate and appropriate to current con- ditions; and (b) any related matter. DATED 18 July 1984 Gareth Evans Attorney-General Summary The report This report deals with that part of the law in the Australian Capital Ter- ritory that determines whether, and to what extent, occupiers of property are to be liable for damage or injury caused to visitors to their property. The ref- erence to the Commission was given as a result of suggestions made under the Community Law Reform Program for the Australian Capital Territory. The old law When the Reference was given, the Australian Capital Territory law on this subject consisted of a set of rules that divided visitors, and the hazards on property that they might fall foul of, into different classes. The basis of these distinctions was archaic and the results of injury claims were, to a considerable extent, arbitrary. The distinctions themselves were difficult to apply and could lead to absurd results. These rules, and their effects, are set out in paragraphs 8 to 15 of this report. A more flexible approach In many comparable jurisdictions, these old rules had been reformed by statute to apply a more flexible, general rule based on the familiar negligence principle: a rule that an occupier should take reasonable steps to safeguard vistors (see paragraph 6 of this report for an explanation of this rule). The application of the negligence principle allows courts to take into account the very many varying circumstances that arise in occupiers’ liability cases. In early 1987 the High Court held that this approach should be applied as the common law of Australia instead of the old rules. In the Australian Capital Territory occupiers’ obligations to their visitors are governed by the general negligence principle as a result of this case. The Commission’s view The general rule. The Commission has concluded that this flexible stan- dard, which covers all occupiers - from the rural landholder to the suburban householder - is the appropriate standard to apply. It has also concluded that, as the common law now applies that standard, there is no need to legislate to change the law. Indeed, it would be counterproductive to enact legislation to do what the High Court has already done for the Australian Capital Territory. Summary/ xi Trespassers. The Commission has given particular attention to the appli- cation of this rule to trespassers. The word ‘trespasser’ covers a wide class of people. It covers the child who climbs over the fence to retrieve a ball, the person who loses his or her way and accidently goes onto another’s land and the burglar who comes by night. The best way to determine whether or not the occupier should be liable for injuries caused to any one of these people is to apply the general negligence standard set out above. It will cover, in an appropriate way, all classes of ‘trespasser’. Accordingly, no special rule needs to be made to cover ‘trespassers’. Landlord and tenant. The Commission has also been asked to examine the law in the Australian Capital Territory that determines whether, and to what extent, landlords are to be liable for damage or injury caused to visitors to the leased property. A rule of the common law (called the rule in Cavalier v Pope) provides that landlords, by virtue of their status as landlords, cannot be made liable in these cases. There is some doubt whether that rule applies in the Australian Capital Territory or in Australia at all: in early 1987 the South Australian Supreme Court refused to recognise it as part of the law. The Commission has concluded that such an exception for landlords, based simply on the fact that they are landlords, cannot be justified. Accordingly, the Commission recommends that any such immunity be abolished. Miscellaneous matters Two other related matters are considered in this report. The first concerns the question whether an occupier who hires an independent contractor to re- move dangers on the property should nevertheless remain liable if the contractor negligently carries out the work. The Commission concludes that this question is best left to the general negligence principle outlined above: no change is needed to the law. The second question is whether occupiers should be able to exclude liabilty by notice or agreement. This question has wide implications beyond occupiers’ liability cases. It is not a significant question in occupiers’ liability cases. The Commission makes no recommendation on this subject. -- 2. Occupiers’ liability: the present law Introduction 5. The Commission has been asked in this reference to consider whether the law in force in the Australian Capital Territory concerning the liabilities of occupiers and lessors of property to entrants (including trespassers) is adequate and appropriate to current conditions; and any related matter. The relevant law in force in the Australian Capital Territory is the common law. In 1987 the High Court in the Australian Safeway’ case changed the common law in a way which accords with the Commission’s thinking. Accordingly, much of what would have been proposed by the Commission is no longer necessary. In order to explain how this High Court decision has changed the law, it is first necessary to look at the law as it was before 1987. Negligence - the common law 6. When a person is injured, or his or her property is damaged, because of the unintentional fault of another, the law allows the former (the plaintiff) to claim money compensation (damages) from the latter (the defendant). The plaintiff has to establish that the conduct of the defendant which caused damage to the plaintiff was negligent - which means that the defendant failed to take reasonable care in the circumstances. This is the common law of negligence, which is characterised by broad and flexible concepts rather than strict and prescriptive rules. In, for example, a motor accident case where the common law still operates, the courts are concerned with three basic inquiries: l did the defendant owe the plaintiff a duty of care? l was the defendant in breach of the duty of care? l were the plaintiff’s injuries a consequence of the defendant’s failure to observe due care? The first question is invariably easy to answer. The defendant owes a duty of care to anyone who will foreseeably be injured by his or her activities. The expression used by lawyers to describe the legal relationship in which a duty of care is owed by one to another is that the parties are ‘neighbours’.2 This word is used in its broad sense and is not restricted to people who live next door to each 1 Awtrulian Sufcway Stores Pty Ltd u Zuluzna (1987) 69 ALR 615; 61 ALJR 180. ’ Donoghuc u Stevenson [1932] AC 562, 580 (Lord Atkin). 41 Occupiers’ liability other. Thus, a motorist owes a duty of care to all other road users, pedestrians and people living along the road. These people are his or her ‘neighbours’. The second question is usually the one which determines whether or not the plaintiff can obtain compensation. It is this question which determines fault. It is the issue which in very many cases is hardest fought if the case goes to court. The plaintiff argues that the defendant should have been more careful and that the accident could have been avoided; the defendant argues that he or she acted with proper regard for safety. Finally, the third question usually causes little difficulty in the great majority of cases because it is usually obvious that the plaintiff’s injuries were a consequence of the accident caused by the defendant’s carelessness. Occupiers’ liability - the common law Introduction 7. The law of occupiers’ liability is concerned with the duty of care owed by occupiers of premises or land toward visitors, whether invited or uninvited, who suffer either personal injury or property damage during the course of their visits. Just as in all negligence cases, the broad issue for the court to determine is: what steps is the occupier reasonably expected to take to safeguard visitors from injury or damage ? Occupiers’ liability is that part of the law which sets the safety standards which householders, farmers, tenants, companies and any- one else in control of land or buildings should observe to safeguard those who come onto the premises. Special and complex rules were developed to set the appropriate safety standards for occupiers. These are to be contrasted with the ordinary negligence rules which govern other cases. A survey of the law 8. Special rules. The broad concepts of negligence described above have gen- erally not been used in occupiers’ liability cases. The reasons for this will be examined briefly below .3 Instead, over the years the courts in the United King- dom, and then in Australia and other countries which inherited the common law tradition, developed very specific rules which applied only in occupiers’ liability cases. These rules were very complicated. They employed a large number of categories and verbal formulae which made arguing cases before courts a very elaborate process. There is no need to describe the full complexities of these rules here. These can be found in specialist works.’ Instead, the rules will be broadly described so as to illustrate their complexity. 9. Survey of the rules. At the outset, it was sometimes necessary to determine whether the defendant was an ‘occupier’ in the legal sense. If not, the ordinary rules of negligence would apply and not the special rules of occupiers’ liability. 3 See below para 10-2. ’ See Trindade & Cane 1985, ch 14; Fleming 1987, ch 22; Heuston & Chambers 1981, ch 11. Occupiers’ liability: the present law/ 5 An ‘occupier’ is the person who has control over the premises. It is possible for two or more people to be occupiers of the same area.5 It is not necessary for an occupier to be actually in occupation. 6 In relation to rented premises, the tenant, not the landlord is the occupier. 7 Next, it was necessary to determine whether the visitor was 0 a trespasser - one who was there without the occupier’s permission l a licensee - a person permitted or invited to be there 0 an invitee - the same as a licensee except that there must in addition have been something in the nature of a business relationship between occupier and invitee. 8 The invitee must have been there on a matter of material interest to the occupier l an entrant as of right - this covered a heterogeneous group of people who had a right to go onto the occupier’s land, including visitors to public facilities such as parks and playgrounds, the person who came to read the meter and the fireman who came to extinguish a fire l a contractual entrant - these were people who had paid to use the occu- pier’s premises, such as cinema goers. (It made no difference if somebody else actually paid for the ticket). A different and very specific standard of care was owed by the occupier to each person falling into each group. The standard of care ascended in stringency as one progressed down the list, so that the highest standard was owed to contractual entrants. The standard owed in each category was very precisely described (except the standard owed to entrants as of right, which was unclear). A fixed verbal formula was used for each category. For example, in relation to licensees, the occupier’s duty was to safeguard the licensee against ‘concealed traps’ of which the occupier was aware,g whereas towards invitees the occupier had to use reasonable care to prevent damage from unusual dangers of which the occupier knew or ought to have known.” Trespassers and contractual entrants also had their own special formulae. Trespassers were owed a duty of ‘common humanity’.” Contractual entrants, at the other end of the scale, were entitled to a standard of safety which was almost absolute. The occupier had to ensure that the premises were safe.12 Superimposed on these categories was the possibility that, in any particular case, the court would not employ the ’ Canbcrro Formwork Ptv Ltd v Civil ond Civic Ltd (1982) 41 ACTR 1: Thompson v Com- monwculth (1969) 70 SR (NSW) 398; Wheat v Lacon 8 Co Ltd (19661 AC 552. ’ Harris v Birkenhead Corporotion (19761 1 All ER 341. ’ For difficulties this creates see ch 5. ’ Lipmun v Clendinnen (1932) 4Q CLR 550, 559 (Dixon J). ’ id, 556. lo Indermaur v Dames (1866) LR 1 CP 274, 288 (Willes J). l1 Southern Portland Cement Ltd v Cooper [1974] AC 623; British Railwaya Bourd v Herringfon [1972] AC 877. l2 Francis v Cockretl (1870) LR 5 QB 501; Voli v Inglewood Shire Council (1962-63) 110 CLR 74; cf E’ufson v George (1953) 89 CLR 409 which may have set a less stringent standard. 8 / Occupiers ’ liability cumbersome and expensive to administer because they required elaborate ar- guments in courts. 14. Practical dificulties. Often a negligence case involves multiple defen- dants, particularly industrial and building site cases. Employing the traditional approach required a careful analysis of the relationship between the injured party and each defendant. It was not uncommon for there to be two or three different relationships, each with their own standard of care. Settlement of such cases became complicated and was less likely to occur because of these complications. 15. Arbitrary operation. The rules could operate arbitrarily. For example, whether a plaintiff won or not could turn on whether that person was an invitee or a licensee because the hazard which caused the accident was an ‘unusual danger’ but not a ‘concealed trap’. The categorisation of a person as a licensee rather than an invitee could be quite arbitrary. A person who came to your door to sell brushes might have been an invitee but, if no sale was made, was probably a licensee when he or she went.22 A person living with a tenant in a block of flats was probably a licensee vis-a-vis the landlord when using the common stairways but was an invitee if he or she happened to be going to pay the rent. 23 A person who wa s invited to dinner was a licensee in the usual case. However, if the host and the guest discussed a business matter over the meal, the guest was an invitee. (Whether a guest, who was initially invited for social reasons and who happened to become involved in discussions for a business proposition in the course of a meal, changed his or her status was not clear.) The host, according to the old law, did not have to remove a visible hazard if the guest was merely coming for good company, but was obliged to take that safety precaution if the guest was coming to talk business. Again, a person who visited a shop, even with no intention of buying, was an invitee so long as the visit was to look at the wares, But if a person went into a shop to ask the way, he or she was probably a licensee. If then the visitor was tempted by some display in the shop and contemplated for an instant a purchase, the visitor was an invitee. These arbitrary distinctions could not only cause injustice to litigants but they could also bring the law into disrepute. The non-lawyer in an occupiers’ liability case could have been excused for thinking that the law was an ass after his or her lawyer had patiently explained why the case was lost. ‘You cannot be compensated for your broken leg because, although your host should have removed the child’s toy from the step, the law says that that elementary precaution need not have been taken in this particular case because you were there on a social visit and not a business one.’ Judicial reform in Australia 16. Before Australian Safeway Stores Pty Ltd v Zaluzna, the High Court had, in a number of cases, shown a marked leaning towards replacing the old 22 Dunster u Abbott [1953] 2 All ER 1572. 23 Vial v Housing Commission of New South Wales [1976] 1 NSWLR 388. Occupiers’ liability: the present law/ 9 occupiers’ liability rules with the ordinary negligence rules.24 The New South Wales Court of Appeal and the Supreme Court of Queensland had shown a similar tendency. 25 However, there were uncertainties emerging from those cases - l only Justice Deane of the High Court was prepared effectively to abolish the old occupiers’ liability rules and use the neighbour principle instead l in some cases it was said that there were concurrent duties - the old rules and the neighbour principle existing side by side l some judges still said that, in some circumstances, only the old rules applied l it was sometimes not clear what circumstances justified the use of the neighbour principle in preference to the old rules. These uncertainties have now been removed by the High Court. The Aus- tralian Safeway case raised the very question generated by the uncertainties listed above. In what circumstances should the ordinary negligence rules be used in occupiers’ liability cases ? A majority of the High Court (Justices Ma- son, Wilson, Deane and Dawson, Justice Brennan dissenting) answered: the negligence rules should from now on always be used. The ‘concurrent duties’ theory and the old rules were abandoned. Does a theory of concurrent general and special duties, giving rise as it does to com- plications that raise ‘some intricate and possibly confusing arguments’ . , , serve any uaeful purpose as the law of negligence is now understood? Is there anything to be gained by striving to perpetuate a distinction between the static condition of the land and dynamic situations affecting the land as a basis for deciding whether the special duty is more appropriate to the circumstances than the general duty? . . . There remains neither warrant nor reason for continuing to search for fine distinctions be- tween the so-called special duty . . . and the general duty established by Donoghue v Stevenson. The same is true of the so-called special duties resting on an occupier of land with respect to persons entering as licensees or trespassers . . . We are unable to see sufficient justification for their continued recognition.2c This decision was foreshadowed and justified by the New South Wales Court of Appeal. It should not be forgotten that the law on a subject such as this is ultimately designed to be understood and obeyed by citizens. It has relevance to the determination of liability for compensation to the taking of precautions by occupiers and to the fixing of insurance premiums in large numbers of cases. These are powerful arguments for 24 This process started in the 1950’s in the cases of Thompson v The Municipality of Bankstown (1953) 87 CLR 619 and Rich w Commissioner for Railways (NS W) (1959) 101 CLR 135. The same approach was used in Commissioner for Railways (NS W) u Cardy (1959-60) 104 CLR 274. More recently, see, in particular, Hackshaw u Shaw (1984) 155 CLR 614; Papatonakia v Australian Telecommunications Commission (1984-85) 156 CLR 7. ” Gorman v WiIfiams [1985] 2 NSWLR 662; Eyres u Butt [1986] 2 Qd R 243. 26 (1987) 69 ALR 615, 619-20; 61 ALJR 180, 182-3. 1 O/ Occupiers ’ liability simplicity and clarity in the law and for adoption of a principle which will appear immediately justifiable and understandable to those principally affected.” In the Australian Capital Territory it is the common law of negligence that is now, 85 a result of the Australiun Safeway case, the relevant law covering the responsibilities of occupiers. The question is whether the law as represented by this decision is adequate and appropriate and whether further reforms are necessary. ” Gorman u William [1985] 2 NSWLR 662, 665 (Kirby P). Policy options for reform/ 13 been seen above ,5 these old rules worked poorly. They involved a number of artificial distinctions which unnecessarily absorbed the courts’ time. A return to the old rules would be an inadequate way of meeting the need for flexibility. 22. Occupancy should not be treated diflerently. Despite these difficulties, is there something special about occupancy duties? One point, made earlier6 when explaining why the law regarded occupancy of land as involving, gen- erally speaking, less onerous duties, was that the law has traditionally drawn a distinction between omissions and positive acts. Occupying land is not the same as driving a vehicle or running a factory. Failing to rectify dangers on land is not as culpable as failing to take measures to eliminate risks created by positive conduct. This dichotomy has traditionally been reflected in the rule that ‘active operations’ on land attracted the ordinary negligence principle whereas hazards created by the ‘static condition’ of the land attracted the less onerous occupiers’ liability rules. Cases can well be imagined, particularly in rural Australia, where to require the occupier to render his or her premises safe would be impossible or unduly burdensome. ’ Even in suburban Australia it may be too burdensome to expect the occupier to be vigilant to eliminate all hazards. But, even if it is accepted that occupancy is to be treated differently for the reasons outlined above, the common law of negligence is adequate to the task. In any given case, the court’s job would be to judge whether the occupier owed a duty of care to the entrant (a question which would be simply and positively answered, at least for lawful entrants) and, if owed, whether the occupier had fulfilled what reasonable care in the circumstance demanded. 23. Negligence principles appropriate. The negligence rules provide the nec- essary flexibility. They make no attempt to provide for particular circumstances but, instead, leave it to the court to determine in each case what should reason- ably have been done by the occupier. This was recognised by the High Court in the Australian Sajeway case and in earlier cases where the Court used the ordinary negligence principle in preference to the old rules. The ordinary negli- gence principle is ideally suited to taking into account the many different types of occupancy and hazards that can arise. Its flexibility allows for both outback conditions and suburban living. The negligence principle only demands of the occupier what would be reasonable in the circumstances. It is the living and evolving negligence principle, not rigid and inflexible formulae, which will most appropriately determine occupiers’ liability. ’ Para 13-5. ’ Above para 11. ’ See ACT Rural Lessees Association (BP Buckmaster) Submission (15 September 1987). 141 Occupiers’ liability Support for negligence principles 24. Legislative reforms. This conclusion is supported by the thrust of reform in England,8 Scotland,Q New Zealand” and Canada,11 where the old rules have been, to a greater or lesser extent, replaced by a simpler formula for deciding occupiers’ liability cases. Victoria, l2 Western Australia13 and South Australia’* have ,followed suit with Tasmania” preparing to do the same. The aim of all these reforms has been to substitute the ‘neighbour’ test for the complex categories and formulae described above. In other words, the aim of reform was to simplify the law by bringing these sorts of accidents within the ordinary rules of negligence. 25. Support for reforms. There were some initial reservations to the leg- islative endorsement of the negligence approach. One commentator” feared that replacing the elaborate categorisation approach with the more free-ranging ‘neighbour’ principle, with its concomitant adjustable standard of care accord- ing to the circumstances of the case, would place too much faith in fallible judicial discretion, thereby creating uncertainty in the law. Another commen- tator argued that the old rules had had the tendency to limit both the number and level of successful occupiers’ liability compensation claims.” He feared that the reform would expose householders to indeterminate liability, particu- larly where juries sit in compensation cases. These fears were apparently not well-founded. Lord Denning MR commented on the Occupiers’ Liability Act 1957 (UK) [T]his ie the first time that we have had to conaider that Act. It haa been very beneficial. It has rid us of those two unpleasant characters, the invitee and licensee, who haunted the courte for years, and it has replaced them by the attractive figure of a visitor, who haa 80 far given no trouble at all. The Act has now been in force six years, and hardly any case has come before the courts in which its interpretation has had to be considered. la Other commentators have expressed similar sentiments.lQ a Occupiers’ Liability Act 1957 (UK); Occupiers’ Liability Act 1984 (UK), ’ Occupiers’ Liability (Scotland) Act 1960. lo Occupiers’ Liability Act 1962 (NZ). l1 Uniform Occupiers’ Liability Act 1973 (Can); Occupiers’ Liability Act 1973 (Alb); Occu- piers’ Liability Act 1974 (BC); Occupiers’ Liability Act 1980 (Ont); Occupiers’ Liability Act 1983 (Man). ” Wrongs Act 1958 (Vic) Pt IIA. ls Occupiers’ Liability Act 1985 (WA). l4 Wrongs Act Amendment Act 1987 (SA). ls Atkinson 1984. I6 Payne 1958, 359. ” Shatwell 1957, 328. ia Roles u N&an [1963] 2 All ER 908, 912. IQ Goodhart 1959, 137. Policy options for reform/ 15 26. Simplification and costs swings. Finally, adoption of the negligence rules have resulted in cost savings and simplifications. The number of occupiers’ liability cases which had to be decided by courts dropped quite dramatically in those jurisdictions where the legislation was implemented. This fact alone is a powerful argument which justifies the reforming measures taken. Simpler law helped out of court settlement which, in turn, saved resources.2o Implementing the flexible approach Legislation or common law 27. The issue. The common law approach as expounded in the Australian Safeway case is now the law of the Australian Capital Territory. It accords with the recommendations just made. Is there any point in introducing this approach by legislative provision, as has been done in every other jurisdiction where the law of occupiers’ liability has been reformed? In all these jurisdictions the thrust of the legislation has been to replace the old rules with the ordinary negligence rules. Yet in none of the legislation has it been said simply that the courts shall henceforth use the ordinary negligence formula in place of the old occupiers’ liability rules. Instead, the legislation, in differing degrees of detail, has sought to spell out the content of the duty owed by an occupier to entrants. 28. The English model. For example, the first legislative attempt, the Occu- piers’ Liability Act 1957 (UK), though it spoke of the ‘common duty of care’, spelled out what that phrase meant. The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.” The Act spells out circumstances, by way of example, for the guidance of the court in determining whether or not the occupier has taken reasonable care.22 It specifically excludes from its effect the question whether a duty of care is owed;2S it only concerns itself with the standard of care. In other words, whether some- one is an ‘occupier’ is determined by the common law and therefore reference back to occupiers’ liability cases is necessary to determine this issue. 29. The Victorian model. The legislation in other jurisdictions has adopted the same approach, some of it more elaborate in spelling out what considerations the court should have regard to, some of it less so. For example, in Victoria seven criteria are spelled out: ‘* Dr JL Robson, the New Zealand Secretary for Justice, told the NSW Law Reform Com- mission that the paucity of reported cases after the passing of the Occupiers’ Liability Act 1962 (NZ) presumably indicated that few difficulties had been encountered with the new legislation: NSWLRC WP, 37. ‘I Occupiers’ Liability Act 1957 (UK) s 2(2). ” id s 2(3)-(4). ” id s l(2). 18 / Occupiers’ liability which has been advanced in favour of a more detailed statutory code is that it imposes some control on juries who may, at times, be over-sympathetic to an accident victim. ” This is not a problem in the Australian Capital Territory as there are no jury trials in negligence cases. Recommendation 33. Legislative reforms of the kind found in other jurisdictions do not improve the common law. No useful end would be served by enacting legislation simply to mimic what the High Court has achieved through judge-made law. Any attempt to do so would be counter-productive. The common law should remain. 33 See eg NSWLRC WP. 4. Trespassers Introduction Definition 34. Under the old occupiers’ liability rules, there were special rules defining an occupier’s duty to trespassers. Trespassers cover a wide range of people. A trespasser is anyone who is not permitted to be on premises or land. It is not necessary for there to be an express prohibition (such as ‘no hawkers or canvassers’) for a person to be a trespasser. On the other hand, in certain circumstances, it is usually safe to assume that there is an implied permission for someone to enter the land or premises. In the absence of a notice of prohibition, there is, for example, an implied licence for people to come to the front door of a house for varied purposes. A person who visits a home to ask the way or to conduct a survey is not a trespasser because there is an implied licence. By contrast, a person who gets over a fence to retrieve a ball, or who takes a short cut across another’s land, or who loses his or her way and accidently goes onto another’s land are all trespassers. All that is required is lack of permission to be on the premises. It follows that trespassers come in many forms, ranging from the ‘innocent, such as a person on an errand of mercy, to the guilty, such as a burglar who comes by night. It also follows that a confidence man or a thief who enters as an invitee and is subsequently injured is not a trespasser. Determining liability 35. The question whether an occupier of premises or land should be liable to trespassers who are injured is one which arouses strong feelings. It needs special attention. This chapter contains recommendations on how best to determine the appropriate level of responsibility to the diverse range of individuals who have been classified as trespassers. If it assumed that an occupier should, at least in some circumstances, take some steps for the safety of visitors, even trespassers, then the question arises: what steps? Should the occupier take the same steps for all trespassers. ? Should a distinction be made between innocent trespassers, children and criminal trespassers? What is the proper allocation of responsibility? Options 36. St&t Iiability. It would be possible to impose strict liability on occupiers towards trespassers. However, for reasons given in the preceding chapter, the ’ See above para 18. 20/ Occupiers ’ liability Commission rejects the imposition of strict liability for harm suffered to any entrants, whether welcome or unwelcome. 37. A no liability rule. Another possibility is that occupiers should be entirely exempt from any possible liability to all trespassers. This would be a harsher rule than has existed for at least the last century and a half.2 Such a rule would be out of step with all that has been said in trespasser cases in which, at the very least, the occupier must not act with reckless disregard of the trespasser’s presence. In addition, the justification for imposing some kind of a duty is that ownership of land carries certain responsibilities. 38. An unexacting standard: the Addie Rule. In the nineteenth and early twentieth centuries the courts imposed an unexacting standard whereby an oc- cupier was obliged simply to refrain from deliberately or recklessly injuring a trespasser (known as the Addie rule3). This rule ignored the fact that tres- passers were not necessarily thieves or poachers. The courts developed devices for avoiding the rule, particularly in cases involving child trespassers. One de- vice, which was rejected in Australia,4 was for the courts to treat certain tres- passers as licensees, on the theory that, if the occupier knew of the repeated presence of trespassers and did not object, there must have been an implied permission for them to be there. 5 This device was combined with a ‘doctrine of allurement’ to provide a more humanitarian approach to the problem of child trespassers. In the Ontario and Manitoba Acts, and in the Saskatchewan draft legislation, special provisions have been made to deal with the problem of tres- passing hunters, recreational vehicle users and the like. The Addie rule applies to such people. 6 The Addie rule applies to all adult trespassers in the Alberta Act.’ This type of provision gives the courts no flexibility in deciding what degree of care should be expected of an occupier in a particular case. For ex- ample, under the Alberta Act an adult who has lost his or her way is in exactly the same position as a burglar. For reasons explained below8 the Addie rule is not recommended because it is not in accordance with humanitarian principles. Its application would mean that very negligent conduct to innocent trespassers would attract no responsibility so long as that conduct was not deliberate or reckless. A more flexible rule is required. 39. A middle ground: the ‘common humanity’ approach. In more recent times the courts have sought to mitigate the apparently harsh effects of the 2 In Bird w Holbrook (1828) 4 Bing 628; 130 ER 911 it was established that an occupier could not set out deliberately to harm a trespasser. 3 Robert Addie 8 Sons (Colliers) Ltd v Dumbreck [1929] AC 358. ’ Commissioner for Railways (NSW) u Cardy (1959-60) 104 CLR 274, 281 (Dixon CJ). ’ Implied licence cases are discussed in Cardy u Commissioner for Railways (1959) 59 SR (NSW) 230, 233-4 (Roper CJ, Herron J). ’ Occupiers’ Liability Act 1980 (Ont) s 4(3)-(4); 0 ecu iers’ Liability Act 1983 (Man) s 3(4); p Draft Occupiers’ Liability Bill 1980 (Sask) cl 3(8). 7 Occupiera’ Liability Act 1973 (Alb) s 12. a See para 40-l below. lIespassers/ 2 3 What is the appropriate response? Ordinary negligence principles 42. Leaving open for the present the possibility of special rules for criminal trespassers, it is clear that something more than an obligation to refrain from deliberately or recklessly injuring a trespasser is required. At the very least trespassers are owed a duty of ‘common humanity’. An analogy may be made with other areas of negligence law which impose responsibilities on owners of land. For example, a landholder is obliged to stop the spread of fire from his or her property even though the fire started from natural causes.20 Thus a landowner, initially innocent of fault, can become guilty of negligence if ad- equate steps have not been taken to contain the fire. Is a duty of ‘common humanity’ sufficient or should the ordinary rules of negligence apply? Presum- ably, no sense of moral outrage would be felt if courts were to impose duties of care on occupiers towards innocent trespassers, particularly children. The standard of such care will clearly vary according to the circumstances. This will be taken up below. The important point to keep in mind when addressing the problem of trespassers is that they come in many forms. It is because of this fact that the law has run into difficulties in trying to lay down a single standard described by a fixed verbal formula. The ‘common humanity’ rule probably can never impose a standard higher than that traditionally owed to a licensee and thus it, too, is inflexible and, by itself, cannot meet every case. It should be regarded as a minimum standard. The neighbour principle, on the other hand, meets the case of the young child who finds the occupier’s land an attractive place to play, as well as the case of the thief who comes by night. Public views 43. Discussion Paper. In its Discussion Paper the Commission endorsed the High Court’s decision in the Australian Safeway case that the neighbour princi- ple is appropriate for trespassers as well as permitted visitors. The Commission argued that the ordinary neighbour principle was sufficiently flexible to accom- modate the range of entrants classified as trespassers. However the Commission also pointed out that the ‘community may not accept legal rules which appear to treat at least some trespassers on the same footing as other visitors’,21 The Commission pointed out that moral outrage cannot be ignored and suggested that special provision may have to be made for trespassers. 44. Submissions. The majority of the submissions received by the Commis- sion raised concerns about applying negligence principles to occupiers in rela- tion to trespassers, particularly criminal trespassers. For example, the National Capital Development Commission said 2o Hargtau,e: u Goldnan (1903) 110 CLR 40 (HC); G o Id man u Hargrczue [1967] 1 AC G45 (PC). 21 ALRC DP 28 psra 18. 241 Occupiers’ liability I am unconvinced the duty of care owed to trespassers should be the same as the duty owed to other types of visitors. As the authority responsible for the planning, development and construction of Canberra the issue of trespassers is an increasingly pertinent one given the number and nature of construction sites throughout the ACT and the fact that unauthorised entry onto these sites in many circumstances may be inherently dangerous. While the distinction you have drawn between all types of tres- passers is noted, I am concerned that the proposed change appears to offer additional protection to persons entering such sites for improper and perhaps criminal purposes, eg vandalism.22 The ACT Rural Lessees Association said that the general laws of negligence were ‘not entirely appropriate in rural situations’.23 They argued that there are inherent dangers in large scale rural operations, that it is reasonable for rural landowners to assume that there are no unauthorised persons on the land and it is impractical to use warning signs or physical inspection of land as a means of controlling trespassers. Saying that the proposals in the Discussion Paper would impose a substantial additional burden on rural landowners, the Association argued that special rules should exempt rural landowners as occupiers for injury or loss suffered by trespassers on the landholders’ property. Justice Lee argued that if the Commission were to recommend an extention of the liability of occupiers to trespassers, it should explain its recommendations in reasonably precise terms, - not make generalities such as ‘reasonable care’ - which will enable householders and others affected to understand the nature and circumstances which expose them to liability.24 It should be emphasised that the Commission’s proposals merely endorse the Australian Safeway decision. They do not extend the common law. Each of the concerns expressed by the ACT Rural Lessees Association would be taken into account by the court in determining whether a duty of care was owed and whether in fact that duty had been met. However, the submissions do raise two substantial issues. The first is whether to apply the ordinary rules of negligence to trespassers. The second is whether there should be special provision for a trespasser intent on a criminal purpose. These issues will be dealt with in turn. Arguments for restricting liability to trespassers 45. Ownership of land. It has already been noted25 that the traditional oc- cupiers’ liability rules could be explained by a reluctance to impose burdensome duties on owners and occupiers of land, and that a failure to make land and buildings safe was not to be treated with the same disapprobation as, for ex- ample, running an unsafe factory or driving dangerously. 22 National Capital Development Commission (A Phillips) Submission (14 September 1987). 23 ACT Rural Lessees Association (PB Buckmaster) Submission (15 September 1987). 24 Justice Lee Submission (29 May 1987). 25 See para 10-l. tCbespassers/ 2 5 46. Involuntary relationship. This attitude may have particular force in re- lation to trespassers. A trespasser, after all, imposes upon the occupier. To impose a duty is to accept the proposition that a trespasser who insists on forcing himself onto the occupier’s premises and lets him know that he intends to enter in this way can impose upon the latter, against his will, a duty to take precautions and have care which may seriously impede the conduct of his lawful activities.2G 47. Trespasser enters at own risk. The reluctance to impose burdens on occupiers is complemented by the view that trespassers go onto land or enter premises at their own risk, a sentiment that is reflected in the legal maxim volenti non fit iniuria - a person who knowingly and willingly encounters a danger voluntarily assumes the risk and cannot claim compensation. Statutory solutions 48. Statutory negligence without guidelines. In some jurisdictions the solution which has been adopted for trespassers is to legislate for the ordinary negligence principle without further elaboration. This statutory approach has been used in Scotland ,27 South Australia28 and in the model Canadian Occupiers’ Liability Act. Such legislation makes no specific provision for trespassers,2g leaving it to the courts to determine what amounts to such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger [ie dangers either due to the state of the land or premises or due to anything done or omitted to be done thereon].30 This approach is very close to the common law approach but, as argued earlier, could in some cases give rise to arguments about whether a particular situation is governed by the legislation or by the common law and whether there is any difference between the two. 49. With guidelines - the Victorian approach. In Victoria the statutory neg- ligence solution has been adopted but, in addition, the legislation spells out guidelines for the court to consider. These have been set out earlier.31 It seems clear that the guidelines were drafted with trespasser cases in mind, though the Act makes no specific mention of trespassers. 2c Commissioner for Railways TV Quinlon (19(34] AC 1054, 1086 (Viscount Radcliffe). 27 Occupiers’ Liability (Scotland) Act 19GO. 2* Wrongs Act 1930 (SA) s 17c(G). ” In South Australia trespassers are specifically dealt with but the effect of the provision is to leave it to the court to decide whether a duty is owed to a trespasser and, if so, the content of that duty: see para 52 below. 3o Taken from the Uniform Canadian Occupiers’ Liability Act, s 2(l). 31 Para 29 above. 28 / Occupiers’ liability Criminal trespassers The issue 55. Criminal trespassers. The question remains whether there should be a special provision for criminal trespassers or whether the ordinary laws of negli- gence should apply. There is no overriding rule which exempts occupiers from a general duty of care in favour of a trespasser, even a criminal trespasser. That being the case, the question whether the occupier owed a duty of care to the criminal trespasser is determined by reference to whether the required relation- ship of proximity exists between the occupier and trespasser and whether there was a reasonably foreseeable risk of injury to the trespasser.40 56. Moral outrage. However, moral outrage has been expressed when the courts impose such a liability on occupiers. Such sentiments are obviously strongest in cases such az~ Hackshaw v Shaw” in which a farmer was found liable to compensate the girlfriend of a thief who was injured when the farmer shot at the thief’s car. The Commission received the following letter after that The judgement has to be considered against the background that theft, burglary and related offences have now reached pandemic proportions in Australian society, that the police clear up rate for this type of crime is low and falling, and in effect, according to some reports, the police have more or less given up serious efforts to investigate the majority of the crimes of this type reported to them. Reasonable people have no wish to import into this country the ‘right to bear arms’ mentality of the US National Rifle Association, but surely the decision in this case points to the urgent need to amend, and amend radically, the law of negligence in relation to trespassers, especially trespassers with criminal intent. A cross section of friends and acquaintances I have shown the report to have been incredulous that such a decision could have been handed down, and have shared my sense of outrage that the highest court in the land has decided the matter in the way it did. Somewhat similar views were expressed in the Supreme Court of Victoria in the same case by Justice McInerney. I can, furthermore, see no reason why an occupier of farm lands is bound to regulate his behaviour towards a known trespasser engaged in criminal activities on the footing that there is, or may be, a possibility that the known trespasser is, or may be, accompanied by another or other trespassers. It may be legitimate to doubt whether the law should be solicitious to give a remedy in damages to persons who have acted in knowing disregard of the property rights of other persons, or who have set out to impose their own will - sometimes violently, sometimes not - on those other persons, eg by entering farm lands uninvited to do ‘spotlight shooting’.42 ” Hackahaw v Shaw (1984) 155 CLR 614. ‘i ibid. 42 Shaw u Hackahaw [1983] 2 VR 65, 90. Zlespssers/ 29 Reduced liability 2 57. Reduced liability to criminal trespassers. In Ontario,43 Saskatchewan44 and in Western Australia 45 the legislation or draft legislation has reduced the standard of care owed to entrants engaged in criminal activity so that the occu- pier must simply refrain from engaging in deliberate or reckless conduct which endangers them. In short, the Addie rule applies in these cases. The Occupiers’ Liability Act 1985 (WA) d re uces the occupier’s duty of care in relation to a person who is on the premises with the intention of committing (or who is com- mitting) an offence punishable by imprisonment. In this instance the occupier’s duty is not to create a danger with the deliberate intent of doing harm or damage to the person or his property and not to act with reckless disregard of the presence of the person or his property.” 58. Problems with legislation. The problem with this type of provision is that it is too wide in its effect. None of the provisions applies exclusively to criminal trespassers, so that a visitor who is invited or permitted to be on the premises would be covered too. Thus a guest who is injured whilst (but not because of) smoking marijuana will be deprived of his or her common law rights. Even if these provisions were applicable only to trespasser cases, they would be too wide. They would catch trespassers who were engaged in a criminal conspiracy as they walked across the occupier’s land; or the escaping convict; or the trespassing person who allowed his or her greyhound off the lead. The fact that these people come as trespassers is very relevant to the occupier’s duty; the fa& they they are engaged in criminal conduct is not, so long as that conduct does not adversely affect the occupier. If criminal conduct is to be included in legislation, then it should apply only to trespassers whose criminal activities are directed against the occupier or against the occupier’s neighbour. ” It would be necessary to single out what criminal activities were relevant to occupancy duties so that only in appropriate cases would either no duty be owed or would the standard be lowered.48 It was these difficulties which, presumably, persuaded the South Australian and Victorian governments not to make specific provision for criminal trespassers but, instead, to leave it to the courts to decide each case according to its particular facts. Nonetheless, drafting difficulties aside, the question remains, should a lesser standard of care apply in relation to criminal trespassers? 43 Occupiers’ Liability Bill 1980 (Ont). ” Draft Occupiers’ Liability Bill 1980 (Sask). ” Occupiers’ Liability Act 1985 (WA) s S(3). ” id s S(2). ” eg where a burglar is using the occupier’s premises to gain access to the neighbouring premises. 48 The English Law Commission considered that trying to specify the type of criminal conduct which would preclude a trespasser from claiming was too difficult: Law Corn No 75, para 31- 4. 30/ Occupiers’ liability Application of the common law 59. After the Occupiers’ Liability Act 1983 (Vic) was passed, the Legal Aid Commission of Victoria published an advertisement in a ‘Know Your Rights’ series. The advertisement was headed ‘Home Sweet Home?’ and showed a burglar about to suffer injury while falling through a loose floor board. The law says that if you occupy a property, you could be responsible for any injury caused to any person who enters, invited or uninvited . . . It is possible that even a trespasser or a thief could successfully claim compensation. The Victorian Act, which mimics the common law, does cover trespassers. But it would be inconceivable that a court would award damages in the circum- stances depicted in the advertisement. This is because a court would employ one or more of several possible arguments to deny liability. First, it may be that the plaintiff would simply be denied a remedy on public policy grounds, that is, a court will not grant compensation to someone injured in the course of criminal activities 4g It must, however, be recognised that the law on illegality is some- . what uncertain. 5o Secondly, a court may decide either that no duty of care is owed in the circumstances, or else the standard of care expected of an occupier towards a burglar is very, low and has not been breached. Thirdly, a court may decide that the effective cause of the injury was the illegal conduct and not the supposed negligence of the occupier. ” Fourthly, a court may decide that the burglar is precluded from claiming because he or she voluntarily assumed the risk of injury. 52 Fifthly if any of the above arguments should fail, a court could regard the burglar’s conduct as being contributorily negligent because entering by stealth, often in darkness, is clearly risky.53 This final argument allows a court to reduce damages,54 even to zero in appropriate circumstances. Only in the most unusual and rare circumstances would a court hold an occupier liable to a thief, and then only if the occupier has done something very dangerous, as in Hackshaw v Shaw. Criminal trespassers - conclusion 60. Despite the misgivings that have been expressed to the Commission, criminal trespassers do not need special treatment. The common law reflects ” Godbolt u Fittock (1983) 83 SR (NS W) 617. 5o See Smith v Jenkins (1969-70) 119 CLR 397; Jackson u Harrison (1978) 138 CLR 438; Ford 1977. A powerful argument against the defence of illegality is made in Jackson u Harrison (1978) 138 CLR 438, 464-466 (Murphy J). Most of the cases involve joint participation between plaintiff and defendant in illegal activities, and so may not provide guidance to the present problem. The cases are rare. Usually criminals do not have the gall to seek compensation in the civil courts for injuries suffered in the course of their criminal activities. 51 Discussed by Ford 1977, 41-9. 52 id, 179-81. 53 id, 178-9. Hackahaw v Shaw illustrates the use of contributory negligence. The plaintiff’s damages were reduced by 40%. 54 See Law Reform (Miscellaneous Provisions) Ordinance 1955 (ACT) Pt V. Landlord and tenant/ 33 65. Examples of the rule. Whatever the contractual arrangement between landlord and tenant, the law of negligence apparently provides an exemption for landlords: l a landlord who, after frequent complaints from the tenant, promised to do repairs to the kitchen floor but failed to do so, was not liable to the tenant’s wife after she was seriously injured when the legs of a chair she was standing on went through the floor3 l there was no liability in negligence in respect of a couple who were gassed on their wedding night as a result of the negligent removal of a gas fire by the landlord’s son4 l a negligence action was unsuccessful when a lodger was gassed after a vent pipe of a geyser was negligently installede5 Circumstances where the rule does not apply 66. Nuisance cases. If the rule in Cavalier v Pope is part of the law, it nevertheless does not apply in certain circumstances. There are thus some situations in which safety responsibilities are imposed on landlords. One is the case of liability in nuisance. An owner of premises may be liable for the unsafe state of the premises when the danger amounts to an actionable nuisance, rather than negligence. Thus, if a tile should fall off the building either into the street? or into the neighbouring property, ’ the owner, not the tenant, may have to pay any damages arising from the accident. The law of nuisance in connection with the liability of landlords is somewhat complicated* but need not be pursued further here because occupiers’ liability is concerned with damage suffered by entrants on the premises, not on other premises. It would be anomalous if a landlord were obliged to keep the building in repair for the purposes of the law of nuisance but not for the purposes of the law of negligence. 67. Licensees. If the person in occupation of a building is a licensee and not a tenant, the owner remains liable. For example, in Voli u Inglewood Shire Council9 a defective stage in a shire hall collapsed, injuring members of a group who were hiring the hall for a meeting. The defendant council argued unsuccessfully that the occupier was the group who had hired the hall rather than the council who owned it. The hire of the hall did not create a tenancy and so the owner remained liable. Similarly, an owner may be liable to a paying guest or a lodger so long as that person is not legally a tenant.” 3 Couafier u Pope (1906] AC 428. ’ Douiu u Foots (KM] 1 KI3 116. ’ Z’bauer.9 u GIouceder Carp [1947] KB 71. ’ See, eg Mint u Good [1951] 1 KB 517. ’ See, eg Wringe u Cohen [1940] 1 KB 229. s See Law Corn No 40, para 60-5 where the law is discussed. ’ (1962-63) 110 CLR 74, 91. lo Watson u Geo g ( r e 1953) 89 CLR 409. The actual result of this case was that there was no liability because the owner had not, according to the High Court, failed in her duty. 341 Occupiers’ liability 68. Other cases. Three other cases should be mentioned where the landlord’s exemption may not, or does not, apply: l Public facilities. Even if in Voli’s case a tenancy had been created, Justice Windeyer was inclined to the view that the rule in Cavalier v Pope only covered rented accommodation (and probably commercial premises) and not public facilities such as a shire hall.” l Common areas in blocks of flats. The landlord of, for example, a block of flats remains liable for taking care that the common areas, such as stairways, corridors and lifts, are reasonably safeal l Possible lack of immunity for furnished dwellings. It has been said13 that the immunity provided by the rule in Cavalier v Pope does not apply when the premises which are let are furnished.14 It would seem that this exception would only make the landlord liable to the tenant and not to third parties, because the principle depends upon an implied condition that the premises are habitable. The status of this exception is uncertain in Australia, particularly as the rule in Cavalier v Pope is itself in doubt. 69. Where some other relationship exists. The courts in England have in- creasingly been inclined to find that the rule in Cavalier v Pope does not apply. In particular, if some other relationship exists which gives rise to liability on some other basis than that of as landlord and tenant, the higher duty prevails. Thus, the immunity of a landlord from liability in negligence towards a tenant has been held to be overshadowed by the fact that the landlord was also the builder and architect of a flat which had a dangerous glass panel. In these latter capacities, a duty of care was owed to tenants, their families and visitors.15 Explanation and justification 70. Explanation. The rule in Cavalier v Pope was developed in the United Kingdom before the general negligence principle was finally settled in 1932. One explanation for the rule was that, at that time, it was thought that, if a contractual relationship exists between parties (the tenancy agreement), all rights and liabilities should be determined by the contract.16 This meant that only the tenant could sue, and then only if the contract had been breached. This, in turn, depended on the terms of the contract, which were usually dic- tated by the landlord. One of the most important consequences of the decision l1 Voli u Inglewood Shire Council (1962-63) 110 CLR 74, 91-2 (Windeyer J). l2 Vial v Housing Commission of New South Wales [1976] 1 NSWLR 388. l3 Rimmer u Liuerpool City Council 119851 QB 1, 9 (Stephenson LJ). l4 Citing Smith u Marrable (1843) 11 M 8: W 5; 152 ER 693; Wilson v Finch Hutton (1877) 2 Ex D 336. l5 Rimmer u Liverpool City Council (19851 QB 1. lG ‘No duty is cast upon a landlord to effect internal repairs unless he contracts so to do’: Cavalier u Pope [190G] AC 428, 431 (Lord James of Hereford). Landlord and tenant/ 35 in Donoghue u Stevenson was to eliminate the ‘contract only’ basis for liability so that a duty of care could be established whenever a sufficient relationship of proximity or ‘neighbourhood’ existed. The neighbour principle depended upon foreseeability of harm. If applied to landlords, whenever a landlord could fore- see that matters within his or her control relating to the premises could give rise to the risk of injury, a duty of care should be owed to all those who came within the zone of risk. The ‘neighbour’ principle, however, did not apply to landlords: this was made clear in Donoghue u Stevenson itself.” 71. Consistent with old occupiers’ liability rules. The exemption of landlords from a general duty of care was justified by reference to the established occu- piers’ liability rules. The tenant was the occupier (so much so that a landlord making an unauthorised entry would be a trespasser). It was the occupier who was regarded as responsible for making the premises reasonably safe. The ten- ant had the opportunity of inspecting the premises before entering into the lease and, it was argued, had substantial control over the state of the premises after moving in. Further, the tenant got what he or she paid for. If the rent was very low, then the tenant could not expect the landlord to provide premises free of defects. These justifications are valid to some extent. For example, the tenant should clearly be responsible for a roller skate left on the front step on a dark night. On the other hand, there are other hazards which are beyond the tenant’s control, as illustrated by the cases summarised above. It is for this reason that the rule has been criticised.” Criticism of the rule 72. Unfair allocation of responsibility. Under the Cavalier v Pope rule, it would be quite possible for a tenant to be liable to a visiting landlord for a defect which ought to have been the responsibility of the landlord. The landlord’s immunity, and the consequent imposition upon the tenant of responsibility for unsafe premises, does not strike a sensible balance between the two in respect of hazards over which the tenant has no control. This has been recognised recently in South Australia where it was decided that the rule does not apply.lg The same view has been taken in all jurisdictions where occupiers’ liability legislation has been enacted or drafted. The thrust of reforming legislation is to impose on the landlord responsibility for the safety of premises to the extent that matters affecting safety are within the landlord’s control. This may depend upon the contract terms in the lease and so the landlord’s area of responsibility may vary from case to case. This issue will be taken up below. 73. Uncertainty. It is unclear whether Cavalier w Pope is part of the law of Australia. The supposed rule has never apparently been applied directly in a higher court in Australia, so far as the reported cases show. It has been held ” [1932] AC 562, 597, (Lord Atkin), GO9 (Lord Macmillan). ‘a See Voli u Inglewood Shire Council (19G2-63) 110 CLR 74, 90-l (Windeyer J) where some of the academic criticisms are collected. lo Parker u South Australian Housing Trust (1986) 41 SASR 493. 381 Occupiers’ liability Implementation Varying legislative models 77. Victoria. In Victoria, the rule in Cavalier v Pope has been abolished to the extent that the landlord (i) is under an obligation to the tenant to maintain or repair the premises; or (ii) is, or could have put himself in, a position to exercise a right to enter on the premises to carry out maintenance or repairs. 27 Under the Residential Tenancies Act 1980 (Vic) s 97, the landlord is obliged to maintain the property in good repair. This provision does not cover all tenancies. Under the Victorian scheme, the landlord’s responsibilities to visitors to the leased premises are not necessarily limited to his or her responsibilities under the lease agreement. This is because the landlord is made responsible for matters which the landlord could have put himself or herself in a position to deal with. 78. Western Australia. By contrast, the Western Australian provision limits the landlord’s safety responsibilities to those which he or she is obliged to carry out under the tenancy agreement. 28 As there are no minimum standards imposed on landlords in Western Australia, such as by the Residential Tenancies Act 1980 (Vic), the landlord may, by contract, eliminate any possibility of liability for safety towards both the tenant and the tenant’s visitors. 79. South Australia. The South Australian provision is in similar terms to the Western Australian provision, that is, the landlord’s responsibilities are governed by what are his or her obligations to the tenant regarding repairs and maintenance. 2g However, under the Residential Tenancies Act 1978 (SA), a compulsory term is included in the lease agreement that the landlord shall provide and maintain the premises in a reasonable state of repair having regard to their age, character and prospective life. It also imposes safety standards by reference to relevant building, health and safety legislation. Recommendations 80. Preferred approach. None of these models is satisfactory for the Aus- tralian Capital Territory. The Victorian model may be unfair to landlords in that it may impose liability on a landlord who, though in a position to exercise a right to carry out repairs, did not do so because he or she was not aware of any problem. The Western Australian model is defective because it allows landlords to reduce or eliminate their potential liability to the tenant’s visi- tors and to the tenant simply by putting an appropriate clause in the tenancy 27 Wrongs Act 1958 (Vic) s 14A(a). 28 Occupiers’ Liability Act 1985 (WA) s 9(l). 29 Wrongs Act 193G (SA) s 17d. Landlord and tenant/ 39 agreement. This would certainly be possible in the Australian Capital Terri- tory because the Landlord and Tenant Ordinance 1949 (ACT) does not impose any obligation on the landlord to maintain and repair the property once the tenancy has started to run. Section 39 does provide that the premises must be let in ‘fair and tenantable repair’. Thereafter, the contract may or may not pro- vide that the landlord is obliged to repair and maintain the premises. In fact, the standard agreement commonly used in the Australian Capital Territory3’ does so provide. The South Australian Act depends upon cross-reference to other legislation, particularly the Residential Tenancies Act 1978 (SA), which imposes minimum standards on landlords. It is not appropriate that this report recommend particular minimum standards be imposed on landlords by chang- ing the landlord and tenant legislation. On the other hand, the landlord should not enjoy the immunity which the rule in Cavalier v Pope provides (if it is still the law). The appropriate course of action is to eliminate that immunity by legislation and to leave the courts to decide, applying the general negligence principles based on foreseeability and proximity, what is the fair balance in safety responsibilities as between a particular landlord and tenant. The advan- tage of this approach is that it does not tie the landlord’s responsibilities to his or her contractual obligations. The court will be left free to decide whether those contractual duties are or are not relevant to a claim by someone who is not a party to that contract. Accordingly, legislation should provide that a lessor of premises is not exempt from owing a duty of care to persons on the premises merely because of his or her status as lessor. 81. Land tenure in the ACT. In the Australian Capital Territory, the system of land tenure, whereby homeowners are lessees from the Commonwealth, could give rise to the argument that the Commonwealth is the ‘landlord’ referred to in the proposed legislation. 31 The possibility of the Commonwealth being found liable under the proposed provision is very remote, because the Commonwealth would not reasonably be expected to take any steps to safeguard visitors to homeowners, Nevertheless, the Commonwealth does remain responsible for some potential hazards on land in the Australian Capital Territory, such as power poles and lines. Accordingly, the proposed legislation should not exclude the Commonwealth. There is no reason to single out the Commonwealth as a landlord for the purposes of conferring an immunity in these cases, especially if other landlords are not exempt. Squatters 82. A problem drawn to the Commission’s attention is that of squatters and whether both private and public (government) landlords should be responsible for hazards posed by derelict buildings awaiting demolition or refurbishment. If it is assumed that the ordinary neighbour principle applies, the liability aris- ing from hazards in derelict buildings, at least to adult trespassers, would not 3o REI (ACT) lease cl 14(b). 31 National Capital Development Commission Submission September 1987. 4O/ Occupiers ’ liability be very high because adult trespassers in such buildings are expected to look after their own interests. A court would not impose a high standard of care in such cases. Even if the landlord were to be found liable, perhaps to a child trespasser,32 the cost of paying for a claim through insurance may be an un- avoidable burden. No-one expects landlords to render derelict buildings safe for trespassers and the ordinary rules of negligence reflect this. No special legislative provision is needed to deal with squatters and the like. 32 As in Harris TV Birkenhead Carp [197G] 1 All ER 341. Independent contractors/ 43 rules, if a duty of care is owed, the question whether it had been properly dis- charged should be determined by what is reasonable in the circumstances. If a person has hired an apparently competent independent contractor to do a job then it is a fair defence to say: ‘I am not at fault. I did all that I could to get the job done.’ The courts may develop new categories of non-delegable duties in the future. The Commission believes that this is a proper area for judicial development rather than statutory prescription. Reform? 87. In those jurisdictions which have passed or drafted occupiers’ liability legislation, either no provision has been made for dealing with the issue of independent contractors14 or a provision is included that states that an occu- pier is not liable for the negligence of independent contractors so long as the occupier has acted reasonably in entrusting the work to and selecting the in- dependent contractor. l5 S P elling out these criteria in legislative form does no more than what a court would in any case do in deciding whether an occupier has discharged his or her responsibilities by employing an independent con- tractor, Accordingly there is no need for a provision dealing with independent contractors. ‘* eg in Victoria. I5 eg Occupiers’ Liability Act 1985 (U’A) s 6. 7. Exclusion of liability Freedom to exclude liability for negligence’ The present law 88. Exclusion by notice or agreement. It is possible for a person to exclude legal liability for negligence by putting up an adequate notice which makes it clear that liability is being excluded or by securing an agreement from the person who may be injured. The agreement may be secured by contract or oth- erwise. Thus an occupier may be able to rid himself or herself of responsibility for the safety of visitors by simply putting up a notice, so long as the notice can be seen and read by an entrant.2 89. Exclusion when entrant voluntarily accepts risk. A related rule is that an entrant may not be able to claim for his or her injuries if the risk of those injuries was known about and the entrant freely assumed the risk. Voluntary assumption of the risk is a defence potentially available in all negligence ac- tions, though its scope is narrowly confined. Its effect is to defeat the plaintiff’s claim altogether. The courts nowadays prefer to reduce damages under the con- tributory negligence legislation3 rather than deny compensation to an injured plaintiff who has been at fault.4 Legislative preservation of these rules 90. These rules have been preserved or modified in most of those jurisdic- tions which have passed or drafted occupiers’ liability legislation. This has been achieved either by making no mention of those rules (so that the common law continues to operate) or by spelling the rules out in statutory form. In Saskatchewan, for example, the draft legislation provides that exclusion of Iia- bility is prohibited in respect of death or personal in’ury5 and is not permitted unless it is reasonable in relation to other damage. d Criteria for determining reasonableness are spelled out. In Alberta the legislation does not permit exclu- sion of liability to entrants as of right.7 In England, under separate legislation,’ ’ See 198 1. generally, Seddon 2 Ashdown Samuel Williams v 8 Sons Ltd [1957] 1 QB 409. 3 Law Reform (Miscellaneous Provisions) Ordinance 1955 (ACT) Pt V. 4 eg v Hackshaw Shaw (1984) 155 014. CLR 5 Occupiers’ Liability Bill 1980 (Sask) cl 4(2)(b). ’ id, cl 4(l)(c). 7 Occupiers’ Liability Act 1973 (Alb) s 8(2). a Unfair Contract Terms Act 1977 (UK). Exclusion of liability/ 45 exclusion of liability by a business for death or personal injury is prohibited and exclusion of liability for other types of harm or damage is subject to a test of reasonableness. Exclusion of liability to third parties 91. There is a curious rule which principally applies to the relationship of landlord and tenant but which may apply in other circumstances. If an occu- pier of premises is bound by contract to permit third parties (that is, people who are not parties to the contract) to enter the premises, then it is possible for the contract to limit the liability of the occupier to those third parties9 Thus a visitor to a tenant in a block of flats may be adversely affected by the terms of the contract between landlord and tenant, which the visitor has never seen. The arguments used to justify this curious rule are that the visitor cannot be in a better position than the tenant and that the tenant, not the landlord, should let the visitor know the terms of entry onto the premises.” As far as can be discovered, this rule has never been applied in Australia and is regarded as of doubtful validity by Fleming.” Yet in many examples of occupiers’ lia- bility legislation it has been thought necessary to abrogate this rule by specific provision, as, for example, in Western Australia.12 The Commission has con- cluded that, until this supposed rule proves to be a problem, there is no need to legislate to abrogate it. Recommendation 92. As noted above, in some jurisdictions limits have been placed on an oc- cupier’s or other person’s ability to exclude liability by notice or agreement. Should there be a prohibition or limitation on the ability to exclude, for ex- ample, liability for personal injuries or death? It has been argued13 that there ought to be limits on a person’s ability unilaterally to divest himself or her- self of tort liability. In the Commission’s view, this report is not the place to make recommendations on this issue. In the context of occupiers’ liability, ex- emption clauses are not a serious problem. There are very few reported cases where occupiers have tried to rely on an exemption clause.14 This issue raises some important policy questions. It is better to deal with the general ques- tion of exclusion of liability where that issue is of central concern rather than marginal significance. Accordingly, the Commission’s view is that no provision is necessary to deal with exclusion of liability by notice or agreement. 0 10 11 12 13 14 See Fosbroke-Hobbes u Airwork Ltd [1937] 1 All ER 108. This case concerned a contract the hire of an aeroplane. The hirer’s guest would be bound by any excluding terms of contract of hire. id, 112. for the Fleming 1987, 421 fn 33. Occupiers’ Liability Act 1985 (WA) s 7. Seddon 1981. ibid. List of written submissions ACT Rural Lessees Association (P Buckmaster) Bulding Owners and Managers Association of Australia Ltd (P Street) TJ Chamberlain, Barrister and Solicitor Fyshwick Chamber of Commerce (D Thomas) Justice JF Gallop (Supreme Court of the Australian Capital Territory) Insurance Council of Australia Ltd (AJ De Domenico) Law Society of Western Australia (P Fitzpatrick) Justice J Lee (Supreme Court of New South Wales) National Capital Development Commission Real Estate Institute of the Australian Capital Territory Ltd Table of cases Addie (Robert) & S ons (Collieries) Ltd u Dumbreck 119291 AC 358 Albrighton u Royal Prince Alfred Hospital [1980] 10, 38 2 NSWLR 542 Appleton u Cunard Steam-Ship Co Ltd [1969] 1 Lloyd’s 84 Rep 150 Ashdown u Samuel Williams & Sons Ltd [1957] 1 QB 409 Australian Safeway Stores Pty Ltd u Zaluzna (1987) 69 ALR 615; 61 ALJR 180 Bird u Holbrook (1828) 4 Bing 628; 130 ER 911 Bloomstein u Railway Executive [1952] 2 All ER 418 British Railways Board u Herrington 119721 AC 877 Canberra Formwork Pty Ltd u Civil and Civic Ltd (1982) 31 88 4-5, 16-7, 23 27, 39, 43-4, 61 10, 37 85 9, 51 41 ACTR 1 Cardy u Commissioner for Railways (1959) 59 SR (NSW) 230 Cassidy u Ministry of Health 119511 2 KB 343 Cavalier u Pope [ 19061 AC 428, 431 9 38 84 ch 5 passim, 65-70 72-3, 76-7, 80 Clements u Bagot’s Executor and ‘IIustee Co Ltd (1981) 26 SASR 399 Commissioner for Railways u McDermott [1967] 1 AC 169 Commissioner for Railways (NSW) u Cardy (1959-60) 13 12 104 CLR 274 Commissioner for Railways u Quinlan 119641 AC 1054 Commonwealth u Introvigne (1981-82) 150 CLR 258 Davis u Foots 119401 1 KB Donoghue u Stevenson [ 19321 AC 562 Dunster u Abbott [1953] 2 All ER 1572 Eyres u Butt [1986] 2 Qd R 243 Fosbroke-Hobb es u Airwork Ltd 119371 1 All ER 108 Francis u Cockrell (1870) LR 5 QB 501 Godbolt u Fittock (1963) 63 SR (NSW) 617 Goldman u Hargrave [1967] 1 AC 645, 663 Gorman u Williams [1985] 2 NSWLR 662 Green u Fibreglass Ltd 119581 2 QB 245 Hackshaw u Shaw (1984) 155 CLR 614 16, 38-9 39, 46 84 116 6, 12, 31, 70 15 16 91 9, 85 59 43, 51 16 85 9, 16, 39, 41 53, 56, 59, 89 Hargrave u Goldman (1963) 110 CLR 40 42 Harris u Birkenhead Corp 119761 1 All ER 341 9, 82 Haseldine u CA Daw & Son Ltd [1941] 2 KB 343 85 Herrington u British Railways Board (1971) 2 QB 107 39, 41 Rejerences are to paragraphs in this report 50/ Occupiers’ liability Indermaur u Dames (1866) LR 1 CP 274 Jackson u Harrison (1978) 138 CLR 438 Kondis 21 State Transport Authority (1984) 154 CLR 672 Lipman 21 Clendinnen (1932) 46 CLR 550 M’Glone v British Railways Board [1965] SC(HL) 107 Mint u Good [ 19511 1 KB 517 Morgan v Incorporated Central Council of the Girls’ Friendly Society (19361 1 All ER 404 New Zealand Insurance Co Ltd w Prudential Assurance Co Ltd 119761 1 NZLR 84 Papatonakis u Australian Telecommunications Commission (1984-85) 156 CLR 7 Parker 2) South Australian Housing Dust (1986) 41 SASR+493 Rich v Commissioner for Railways (NSW) (1959) 101 CLR 135 Rimmer tr Liverpool City Council [1985] QB 1 Robbins II Jones (1863) 15 CB (NS) 221 Robert Addie & Sons (Colliers) Ltd 2, Dumbreck (19291 AC 358 Roles 21 Nathan [ 19631 2 All ER 908 Shaw 2) Hackshaw 119831 2 VR 65 Silk 2, Reid (1847) 18 NSWLR 29; 13 WN 156 Slade v Battersea Hospital [1955] 1 All ER 429 Smith 2) Jenkins (1969-70) 119 CLR 397 Smith 21 Marrable (1843) 11 M & W 5; 152 ER 693 Southern Portland Cement Ltd ZJ Cooper (19741 AC 623 Southern Portland Cement Ltd 2) Cooper (1973) 129 CLR 295 Spackman 21 Wellington Shire Council and Water Conservation and Irrigation Commission (1957) 57 SR (NSW) 343 Thompson w Commonwealth (1969) 70 SR (NSW) 398 Thompson v The Municipality of Bankstown (1953) 87 CLR 619 Thomson v Cremin (19531 2 All ER 1185 Titchener 2) British Railways Board [1983] 3 All ER 770 Travers 21 Gloucester Corp [1947] KB 71 Vial w Housing Commission of New South Wales [1976] 1 NSWLR 388 Voli v Inglewood Shire Council (1962-63) 110 CLR 74 Watson 21 George (1953) 89 CLR 409 Wheat 2, Lacon & Co Ltd 11966) AC 552 Wilson v Finch Hatton (1877) 2 Ex D 336 Wilsons & Clyde Coal Co Ltd v English (19381 AC 57 Woodward v Mayor of Hastings [l945] KB 174 Wright ZJ A-G (T asmania) (1954) 94 CLR 409 Wringe ZI Cohen [ 19401 1 KB 229 9 59 84 9 41 66 85 31 16 4, 71, 73, 76 16, 39 68-9 63 10, 38 25 56 73 12 59 68 39 9 73 9 16, 39 85 41 55 15, 68, 85 67-8, 71, 73, 85 9, 67 9 68 84 85 83 66 References are to paragraphs in this report Bibliography ALRC, see Australia, Law Reform Commission. ATKINSON M, Research Paper, Occupiers’ Liability, Law Reform Commission of Tasmania, Hobart, 1984. AUSTRALIA, LAW REFORM COMMISSION, Discussion Paper No 28, Occupiers’ Liubility, Australian Law Reform Commission, Sydney, 1987 (ALRC DP 28). AUSTRALIA, NEW SOUTH WALES, NEW SOUTH WALES LAW REFORM COMMISSION, Working Paper, Occupiers’ Liability, New South Wales Law Reform Commission, Sydney, 1969 (NS WLRC WP). BOWETT DW, ‘Law Reform and Occupier’s Liability’ (1956) 19 Modern Law Re- view 172. FLEMING JG, The L aw of Torts, 7th edn, Law Book Company Ltd, Sydney, 1987. FORD WJ, ‘Tort and Illegality; the Ex Turpi Causa Defence in Negligence Law and the Relationship between the Illegal Conduct and the Negligence Law’ (1977) 11 Melbourne University Law Review 32, 164. GOODHART AL, ‘Law Reform in England’ (1959) 33 Australian Law Journal 126. HEUSTON RFV & CHAMBERS RS, Law of Torts, 18th edn, Sweet & Maxwell, London, 198 1. HUGHES G, ‘Duties to Trespassers: A Comparative Survey and Revaluation’ (1959) 68 Yule Law Journal 633. Law Corn, see United Kingdom, Law Commission. LUNTZ H, HAMBLY AD, & HAYES RA, Torts: Cases and Commentary, 2nd ed, Butterworths, Sydney 1985. MARSH NS, ‘The History and Comparative Law of Invitees, Licensees and Tres- passers’ (1953) 69 Law Quarterly Review 182. NEWARK FH, ‘The Occupiers’ Liability Act (Northern Ireland) 1957’ (1956) 12 Northern Ireland Legal Quarterly 203. NORTH PM, Occupiers’ Liability, London, Butterworths, 1971. NSWLRC see Australia, New South Wales. ODGERS FJ ‘Tort - Invitees, Licensees and Trespassers’ [1955] Cambridge Law Journal 1. PAYNE D, ‘The Occupiers’ Liability Act’ (1958) 21 Modern Law Review 359. SEDDON N, ‘Fault without Liability - Exemption Clauses in Tort’ (1981) 55 Aus- tralian Law Journal 22. ‘Comment’ (1985) 59 Australian Law Journal 395. SHATWELL’K, ‘Some Reflections on the Problems of Law Reform’ (1957) 31 Aus- tralian Law Journal 325. TRINDADE FA & CANE P, The Law of Torts in Australia, Oxford University Press, Melbourne, 1985. 541 Occupiers’ liability UK Law Reform Committee, see United Kingdom, Law Reform Committee. UNITED KINGDOM, LAW COMMISSION, Report No 40, Cz’vil Liability of Ven- dors and Lessors for Defective Premises, Her Majesty’s Stationery Office, Lon- don, 1970 (Law Corn No 40) Report No 75, Liability for Damage or Injury to Trespassers and Re- lated Quekons of Occupiers’ Liability, Her Majesty’s Stationery Office, London, 1976 (Law Corn No 75). UNITED KINGDOM, LAW REFORM COMMITTEE, Report No 3, Occupiers’ Liability to Invitees, Licensees and Trespassers, Her Majesty’s Stationery Office, London, 1954 (UK L aw Reform Committee No 3).
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