TWO PROBLEMS OF OCCUPIERS' LIABILITY PART ONE, Schemes and Mind Maps of Law

Download TWO PROBLEMS OF OCCUPIERS' LIABILITY PART ONE and more Schemes and Mind Maps Law in PDF only on Docsity! 128 T WO PROBLEMS OF O CCUPIERS’ LIABILIT Y PART ONE — THE O CCUPIERS’ LIABILIT Y ACTS AND THE COMMON L AW P E T E R HA N D F O R D * A N D BR E N DA MC G I V E R N † The enactment of occupiers’ liability legislation in four Australian jurisdictions between 1983 and 2002 has given rise to important problems about the relationship between the legislation and the common law of negligence. From 2002 onwards, the civil liability legislation has added another dimension of difficulty: the courts have to contend not only with the relationship between each enactment and the common law, but also with that between the two sets of statutory provisions. As the Chief Justice of Western Australia said in Town of Port Hedland v Hodder, in many cases courts are failing to grapple with these issues. In this two-part article the authors explore the relationship between the occupiers’ liability Acts and the common law, and between those Acts and the civil liability legislation. With the aid of comparative insights, and applying principles of statutory interpretation, they offer conclusions as to the way in which occupiers’ liability actions should be pleaded and determined in the four occupiers’ liability Act jurisdictions. Key provisions are gathered together in a table which appears at the end of Part Two of this article. CO N T E N T S I Introduction .............................................................................................................. 129 II Statutory Interpretation: A Brief Refresher .......................................................... 135 III The Occupiers’ Liability Acts and the Common law .......................................... 138 A The Overseas Experience ........................................................................... 138 1 England ............................................................................................ 138 2 Scotland ........................................................................................... 142 * LLB (Birm), LLM, PhD (Cantab); Winthrop Professor, Faculty of Law, The University of Western Australia. † BCom, LLB (Hons) (Murdoch), PhD (Tas); Associate Professor, Faculty of Law, The University of Western Australia. 2015] Two Problems of Occupiers’ Liability — Part One 129 3 Canada ............................................................................................. 144 B Australia ........................................................................................................ 146 1 Introduction .................................................................................... 146 2 Victoria ............................................................................................ 148 (a) Relationship with the Common Law .................................... 149 (b) The Standard–Duty Issue ....................................................... 150 (c) The Activity–Static Conditions Issue .................................... 151 3 Australian Capital Territory .......................................................... 152 4 South Australia ............................................................................... 155 5 Western Australia ........................................................................... 158 (a) Occupancy and Activity Duties ............................................. 160 (b) Relationship between the Act and the Common Law ........ 161 (c) The First Approach: Concurrent Claims at Common Law and under the Act ...................................... 165 (d) The Second Approach: The Occupiers’ Liability Act is Limited to Standard of Care ............................................... 168 (e) The Third Approach: The Act Covers the Field ................... 171 I I N T R O D U C T IO N It seems that much tort litigation in this State is being conducted as if the legis- lation had never been passed, on the basis, as here, that the application of the legislation would make no material difference to the outcome. This has meant that important issues with respect to the interrelationship between the common law and the legislative provisions and as between the particular legislative pro- visions remain unresolved.1 Australian Safeway Stores Pty Ltd v Zaluzna (‘Zaluzna’)2 changed the direc- tion of Australian occupiers’ liability law. Prior to the 1980s, the law in Australia followed the traditional approach of the common law to questions of occupiers’ liability: in the words of the leading Irish text, ‘[t]he law relating to occupiers’ liability for injuries to entrants on their premises represented one piece of dry land which was not swamped when Lord Atkin, in Donoghue v 1 Town of Port Hedland v Hodder [No 2] (2012) 43 WAR 383, 396 [47] (Martin CJ). 2 (1987) 162 CLR 479. 132 Melbourne University Law Review [Vol 39:128 The Australian experience has been different. It was not until the 1980s that occupiers’ liability legislation began to appear, and then only in a minori- ty of jurisdictions — Victoria in 1983,19 Western Australia in 198520 and South Australia in 1987.21 In each case, the legislation applies to all entrants, including trespassers,22 though in Western Australia a lower duty is owed to persons who enter the premises with the intention of committing, or in the commission of, an offence punishable by imprisonment.23 Prior to this, the High Court had made a determined attempt to overcome the restrictions of the common law in a series of decisions which held that the limitations on the liability of the occupier qua occupier did not preclude the recognition that the occupier might owe a duty of care in another capacity.24 Though this line of authority was rejected by the Privy Council in 1964,25 the High Court continued to develop this jurisprudence,26 especially after the abolition of appeals to the Privy Council in 1975.27 Ultimately Deane J, in two important judgments,28 suggested that it was no longer necessary to distinguish between 19 Wrongs Act 1958 (Vic) pt IIA, as inserted by Occupiers’ Liability Act 1983 (Vic). The Act was preceded by the Victorian Chief Justice’s Law Reform Committee, Report on Occupiers’ Liability (1982). 20 Occupiers’ Liability Act 1985 (WA); Peter Handford, ‘Occupiers’ Liability Reform in Western Australia — and Elsewhere’ (1987) 17 University of Western Australia Law Review 182, 182. 21 Wrongs Act 1936 (SA) as amended by the Wrongs Act Amendment Act 1987 (SA) inserting Civil Liability Act 1936 (SA) pt 4. The occupiers’ liability provisions, originally ss 17B–17E, were renumbered as ss 19–22 when the Wrongs Act 1936 (SA) was renamed the Civil Liability Act 1936 (SA) in 2003. 22 See, eg, Occupiers’ Liability Act 1983 (Vic) s 14B(3). 23 Occupiers’ Liability Act 1985 (WA) ss 5(2)–(3). The Northern Territory has a similar legislative determination of the duty owed to trespassers: Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 9. 24 Thompson v Bankstown Corporation (1953) 87 CLR 619; Rich v Commissioner for Railways (NSW) (1959) 101 CLR 135; Commissioner for Railways (NSW) v Cardy (1960) 104 CLR 274. See Peter Handford, ‘The Snail’s Antipodean Adventures’ [2013] Juridical Review 315, 327–36. 25 Commissioner for Railways v Quinlan [1964] AC 1054. This has been called a ‘scholastic and retrograde’ decision: M A Millner, Negligence in Modern Law (Butterworths, 1967) 178. 26 See, eg, Munnings v Hydro-Electric Commission (1971) 125 CLR 1; Cooper v Southern Portland Cement Ltd (1972) 128 CLR 427; Public Transport Commission (NSW) v Perry (1977) 137 CLR 107. 27 Privy Council (Appeals from the High Court) Act 1975 (Cth). 28 Hackshaw v Shaw (1984) 155 CLR 614, 662–3; Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7, 32. 2015] Two Problems of Occupiers’ Liability — Part One 133 the occupier’s special duty and the ordinary duty of care: the two streams of authority had become one, and all that was necessary was to ask whether the occupier owed a duty of care under the ordinary principles of negligence. This was the view ultimately adopted by the majority of the High Court in Zaluzna.29 This decision, it might have been thought, rendered the Australian legisla- tion unnecessary: proposals for legislation in New South Wales and Tasma- nia30 were abandoned, although occupiers’ liability legislation was unexpect- edly inserted in the Civil Law (Wrongs) Act 2002 (ACT),31 a package of consolidating legislation and reform measures enacted in response to the Review of the Law of Negligence: Final Report (‘Ipp Report’).32 Since 1987, it is the common law of negligence that has made the running in questions of occupiers’ liability. The principles initiated by Zaluzna have been developed by a series of High Court decisions,33 and it is the common law which is now the chief focus of the leading texts.34 However, in the jurisdictions with an 29 (1987) 162 CLR 479, 488 (Mason, Wilson, Deane and Dawson JJ). Note similar common law developments in Newfoundland: in Stacey v Anglican Churches of Canada (Diocesan Synod of Eastern Newfoundland & Labrador) (1999) 182 Nfld & PEIR 1, the Newfoundland Court of Appeal held that the traditional categories had been superseded by general negligence law. The Singapore Court of Appeal recently took a similar step: See Toh Siew Kee v Ho Ah Lam Ferrocement Pte Ltd [2013] SGCA 29 (24 April 2013). In New Brunswick it was the legislature which acted: Law Reform Act, RSNB 2011, c 184, s 2(1). This Act provided that the law of occupiers’ liability was abolished, with the effect that the ordinary law of negligence now applies: see Jones v Richard (2000) 226 NBR (2d) 207; Reid v Hatty (2005) 279 NBR (2d) 202. 30 See New South Wales Law Reform Commission, Working Paper on Occupiers’ Liability, Working Paper No 3 (1969); Law Reform Commission of Tasmania, Occupiers’ Liability, Report No 53 (1988). 31 Civil Law (Wrongs) Act 2002 (ACT) s 168. The provision applies to all entrants, including trespassers. The Australian Law Reform Commission had previously recommended that legislation was unnecessary: Australian Law Reform Commission, Occupiers’ Liability, Re- port No 42 (1988) 2. The Australian Capital Territory Community Law Reform Committee agreed: Australian Capital Territory Community Law Reform Committee, Occupiers Liability, Report No 2 (1991). 32 Panel of Eminent Persons, Review of the Law of Negligence: Final Report (2002). 33 See, eg, Nagle v Rottnest Island Authority (1993) 177 CLR 423; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469; Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234. 34 See, eg, R P Balkin and J L R Davis, Law of Torts (LexisNexis Butterworths, 5th ed, 2013) 237–42 [7.39]–[7.40]; Kit Barker et al, The Law of Torts in Australia (Oxford University Press, 5th ed, 2012) 569–82 [11.1.1]–[11.1.9]; Harold Luntz et al, Torts: Cases and Commentary (LexisNexis Butterworths, 7th ed, 2013) 409–22 [7.5.1]–[7.5.20]; Carolyn Sappideen, Prue 134 Melbourne University Law Review [Vol 39:128 occupiers’ liability Act (‘OLA’), these developments are only of indirect relevance. The OLAs generally say that the provisions of the Act apply in place of the rules of the common law.35 The courts have had to develop the law by the processes of statutory interpretation, and the common law jurisprudence is at best only indirectly relevant. The OLAs, however, only apply to the extent that they say they apply. The boundaries of the legislation have to be carefully observed, and in areas outside those boundaries the general law of negligence takes over. It has sometimes been said that it is not important whether the Act or the common law applies, because the common duty of care under the Acts is so similar to the duty of care which applies under the general law of negligence.36 Not everyone agrees, however. Buss JA of the Western Australian Court of Appeal has been a leading figure in highlighting the problem of these boundary disputes. In Department of Housing and Works v Smith [No 2], his Honour drew attention to the unsatisfactory nature of the relationship between the Occupiers’ Liability Act 1985 (WA) (‘WA OLA’) and the common law of negligence, in particular the juridical basis of the occupier’s duty of care, and said: It is unnecessary to resolve the issue in the present case. However, the true posi- tion should be determined by this court in an appropriate case. The unsatisfac- tory state of the law … must not remain unresolved indefinitely.37 The authors agree with the view of Buss JA that it is important to deter- mine the juridical boundaries of the OLAs, and this is the problem that is discussed in Part One of this article. However, this is not the end of the story. The civil liability Acts (‘CLAs’) enacted in Australian jurisdictions in 2002 and 2003 have added another dimension of complexity to Australian occupiers’ Vines and Penelope Watson, Torts: Commentary and Materials (Lawbook, 11th ed, 2012) 352–5 [9.110]–[9.115]. 35 Civil Law (Wrongs) Act 2002 (ACT) s 168(4); Wrongs Act 1958 (Vic) s 14B(1); Occupiers’ Liability Act 1985 (WA) s 4(1). The South Australian legislation is differently drafted: the Civil Liability Act 1936 (SA) s 20(1) provides that ‘the liability of the occupier of premises … shall be determined in accordance with the principles of the law of negligence’. 36 See, eg, Department of Housing and Works v Smith [No 2] (2010) 41 WAR 217, 220 [3], 223 [20] (Pullin JA), 244 [126] (Newnes JA). 37 (2010) 41 WAR 217, 230 [63]. ‘This unfortunate situation can only benefit lawyers’ pockets’: Barker et al, above n 34, 571. The distinction was important in New Zealand Insurance Co Ltd v Prudential Assurance Co Ltd [1976] 1 NZLR 84, where an insurance policy imposed different indemnity limits for occupiers’ liability and general public liability. 2015] Two Problems of Occupiers’ Liability — Part One 137 law and statutory rules48 and between intersecting bodies of statute.49 The High Court has recently described this as a central policy consideration,50 applying it in a case involving the joint illegality defence as follows: [Coherence] is a consideration that is important at two levels. First, the princi- ples applied in relation to the tort of negligence must be congruent with those applied in other areas of the civil law (most notably contract and trusts). Sec- ondly, and more fundamentally, the issue that is presented by observing that a plaintiff was acting illegally when injured as a result of the defendant’s negli- gence is whether there is some relevant intersection between the law that made the plaintiff ’s conduct unlawful and the legal principles that determine whether the plaintiff should have a cause of action for negligence against the defendant. Ultimately, the question is: would it be incongruous for the law to proscribe the plaintiff ’s conduct and yet allow recovery in negligence for damage suffered in the course, or as a result, of that unlawful conduct?51 Accordingly, when the language and application of statutory provisions are in question, courts will generally favour a construction that facilitates the greatest congruity between those provisions and the other bodies of law with which they intersect. A second notable development is the increasing recognition of the degree to which the common law and statute influence each other. The High Court has commented that ‘[t]he common law evolves in the orbit of statute’52 while 48 Sullivan v Moody (2001) 207 CLR 562, 581 [55] (Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ); Stuart v Kirkland-Veenstra (2009) 237 CLR 215, 257 [123] (Crennan and Kie- fel JJ); New South Wales v Fahy (2007) 232 CLR 486, 558 [250] (Crennan J); Miller v Miller (2011) 242 CLR 446, 454 [15], 467 [56], 473 [74], 482 [102] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). See also Pam Stewart and Anita Stuhmcke, ‘The Rise of the Common Law in Statutory Interpretation of Tort Law Reform Legislation: Oil and Water or a Milky Pond?’ (2013) 21 Torts Law Journal 126, 141. 49 Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, 432 [11] (French CJ, Gummow, Hayne, Heydon and Crennan JJ); D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, 23 [53]–[54] (Gleeson CJ, Gummow, Hayne and Heydon JJ). 50 Miller v Miller (2011) 242 CLR 446, 454 [15] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 51 Ibid 454–5 [15]–[16]. 52 Roads and Traffic Authority v Royal (2008) 245 ALR 653, 677 [93] (Kirby J), citing Brodie v Singleton Shire Council (2001) 206 CLR 512, 602 [231]. 138 Melbourne University Law Review [Vol 39:128 also informing the meaning and operation of legislation,53 particularly in Acts (like the OLAs and CLAs) laden with language that already has a developed legal meaning.54 This interchange, variously described as a ‘legal partnership’55 or ‘symbiotic relationship’,56 has been shown to be particularly evident and influential in the development of the law of negligence following the introduc- tion of the civil liability reforms.57 III T H E OC C U P I E R S’ LIA B I L I T Y A C T S A N D T H E CO M M O N L AW A The Overseas Experience 1 England The 1957 OLA provides that it has effect in place of the rules of the common law to regulate the duty which an occupier of premises owes to his or her visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them.58 The rules so enacted regulate the nature of the duty imposed by law in consequence of a person’s occupation or control of premises, but do not alter the rules of the common law as to the persons on whom the duty is imposed or to whom it is owed, and so the persons who are to be treated as an occupier and his or her visitors are the same as those who at common law would be treated as an occupier and his or her invitees or licensees.59 The occupier owes the same duty, the common duty of care, to all his or her visitors, except in so far as he or she is free to and does extend, restrict, modify or exclude it, by agreement or otherwise.60 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 53 Mark Leeming, ‘Theories and Principles Underlying the Development of the Common Law — The Statutory Elephant in the Room’ (2013) 36 University of New South Wales Law Journal 1002, 1014. 54 Ibid 1015–17. 55 P S Atiyah, ‘Common Law and Statute Law’ (1985) 48 Modern Law Review 1, 6. 56 Brodie v Singleton Shire Council (2001) 206 CLR 512, 532 [31] (Gleeson CJ). 57 Stewart and Stuhmcke, above n 48. 58 1957 OLA s 1(1). 59 Ibid s 1(2). 60 Ibid s 2(1). 2015] Two Problems of Occupiers’ Liability — Part One 139 for the purposes for which he or she is invited or permitted to be there.61 The Act gives examples of particular circumstances which may be relevant.62 The Act clearly covers both the duty and breach elements of negligence — ss 1(1), 1(2) and 2(1) all deal with the occupier’s duty of care, and s 2(2) functions as a combined statement of duty and standard of care. The examples in later subsections relate to the question whether the standard has been met. However, the Act is not totally self-sufficient, since it refers particular ques- tions back to the common law: the common law determines on whom the duty is placed, and to whom it is owed.63 There are no provisions about causation and remoteness of damage, and references to defences such as assumption of risk64 and exclusion of liability65 also rely on the common law. Because the Act provides that it has effect in place of the rules of the com- mon law, it supplants the common law of negligence in the area which it covers. However, its coverage is not complete. As already mentioned, the original 1957 OLA, by being restricted to lawful visitors, left one important class of entrant, namely trespassers, to be regulated by the common law, and it was only in 1984 that trespassers were brought within the statutory regime.66 The Act also contained some restrictions as to damage covered. In addition to personal injury, the Act extended to the obligations of the occupier in respect of damage to property, including the property of persons who were not visitors.67 At common law, where a visitor brought someone else’s property onto the premises, it was not clear whether the invitee and licensee categories extended to the non-entering owner, or whether general negligence applied;68 61 Ibid s 2(2). 62 Ibid ss 2(3)–(4). 63 Ibid s 1(2). 64 Ibid s 2(5). 65 Ibid ss 2(1), 3. 66 See also British Railways Board v Herrington [1972] AC 877. 67 1957 OLA s 1(3)(b). At common law, it was suggested that there was no liability for damage to property in the absence of personal injury: Tinsley v Dudley [1951] 2 KB 18, 25 (Lord Evershed MR), but, at 31, Jenkins LJ appeared to take a different view. Jenkins LJ’s view was affirmed by the Full Court of the Supreme Court of New South Wales in Drive-Yourself Les- sey’s Pty Ltd v Burnside [1959] SR (NSW) 390, 399 (Street CJ), 404–5 (Owen J). Economic loss consequent on damage to property is recoverable: AMF International Ltd v Magnet Bowling Ltd [1968] 1 WLR 1028. 68 In Drive-Yourself Lessey’s Pty Ltd v Burnside [1959] SR (NSW) 390, where a car owned by the plaintiff and rented out to H was damaged by falling rocks after H had parked it in a car park 142 Melbourne University Law Review [Vol 39:128 The English experience thus provides us with a number of conclusions which will be of value when we come to an analysis of the Australian OLAs. The English Act is not a complete code, but depends in all sorts of ways on the common law. However, in the area which it covers, it applies in place of the common law, leaving no room for recourse to general negligence principles as a supposedly preferable alternative. Finally, there is no suggestion whatsoever that the 1957 OLA is confined to standard of care and does not deal with duty. 2 Scotland The Occupiers’ Liability (Scotland) Act 1960, 8 & 9 Eliz 2 (‘OLSA’) differs from the English Act in a number of respects, most obviously in extending its provisions to all entrants including trespassers. However, the drafting was also different, and perhaps simpler. Most sections have their equivalents in the English Act, but the wording is not always the same. Thus the Act provided that it would: have effect, in place of the rules of the common law, for the purpose of deter- mining the care which a person occupying or having control of land or other premises is required, by reason of such occupation or control, to show towards persons entering on the premises in respect of dangers due to the state of the premises or to anything done or omitted to be done on them and for which he is in law responsible.81 There is no express reference here to duty, although the sidenote reads ‘[v]ariation of rules of common law as to duty of care owed by occupiers’. The common law determines who is an occupier for this purpose.82 The care which the occupier is required, by reason of his or her occupation or control of the premises, to show towards a person entering thereon in respect of the specified dangers,83 except in so far as he or she is entitled to and does extend, restrict, modify or exclude his or her obligations by agreement,84 is such care presumably applies to injuries caused by static conditions, such as a passenger injured due to falling through the defective floor of the vehicle: see generally Houweling v Wesseler (1963) 40 DLR (2d) 956. 81 OLSA s 1(1) (emphasis added). 82 Ibid s 1(2). 83 Here the section repeats the words in s 1(1) set out above. 84 Cf 1957 OLA s 2(1), which allows for exclusion ‘by agreement or otherwise’ (emphasis added). 2015] Two Problems of Occupiers’ Liability — Part One 143 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.85 Any higher standard of care owed by the occupier by virtue of any other enactment or rule of law is preserved.86 The inclusion of trespassers has not occasioned any problems,87 and the simplicity of the Scottish legislation compares favourably with the awkward- ness of the solution adopted in England, which was to enact another Act dealing with liability to ‘persons other than visitors’.88 Other points made above about the English Act generally hold good for Scotland also. The OLSA covers both the duty and the breach elements of negligence, subject to the limitation stated in s 1(1): the fact that ss 1(1) and 2(1) choose to refer to ‘the care’ which the occupier is required to show does not mask the fact that s 1(1) states who owes the duty, and to whom, and s 2(1) is a combined statement of duty and standard of care. The Act applies not only to personal injury but also to damage to property on the premises, including the property of persons who have not themselves entered on the premises.89 In one important respect, the interpretation of the Act by the Scottish judiciary has given the OLSA a much wider reach than its English counter- part. Though both Acts are said to apply in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on them,90 there is no suggestion that the OLSA is limited to occupancy rather than activity duties. This may have something to do with the different history of Scottish occupiers’ liability law, which was much more flexible than in England, until the House of Lords planted the English common law categories in alien soil north of the border.91 On the few occasions on which the Scottish courts have referred to the question of activities, they have generally included 85 OLSA s 2(1). 86 Ibid s 2(2). 87 See, eg, M’Glone v British Railways Board [1966] SC HL 1; Titchener v British Railways Board [1983] 1 WLR 1427. 88 See Occupiers’ Liability Act 1984 (UK) c 3, s 1. 89 OLSA s 1(3). 90 Ibid ss 1(1), 2(1); 1957 OLA s 1(1). The English Act refers to ‘things’ rather than ‘anything’. 91 Robert Addie & Sons (Collieries) Ltd v Dumbreck [1929] AC 358. See David M Walker, The Law of Delict in Scotland (W Green & Son Ltd, 2nd ed, 1981) vol 2, 579. 144 Melbourne University Law Review [Vol 39:128 them within the scope of the Act,92 but most cases involving activities simply assume that the Act applies without commenting on the matter.93 Likewise, the texts generally make no mention of this issue, which suggests that it is a non-existent problem. Scottish courts are characteristically cautious about reliance on English authorities on questions of occupiers’ liability.94 3 Canada As noted above, six of the nine Canadian common law provinces now have occupiers’ liability legislation. Alberta, British Columbia, Ontario, Manitoba and Prince Edward Island all legislated between 1973 and 1984, and Nova Scotia followed in 1996.95 Most Canadian OLAs expressly state that the rules in the Act apply in place of the rules of the common law.96 All cover trespass- ers, to a greater or lesser extent. The Alberta Act limits liability to trespassers to wilful or reckless misconduct,97 whereas Manitoba follows the Scottish pattern of including all entrants.98 British Columbia, Ontario, Prince Edward Island and Nova Scotia adopt a middle course by including trespassers but 92 See, eg, Titchener v British Railways Board [1983] 1 WLR 1427, 1432 (Lord Fraser); Wallace v Glasgow District Council 1985 SLT 23; Cronk v Morrison Construction Ltd [2003] CSOH 121 (25 April 2003) [18] (Temporary Judge Coutts); Honeybourne v Burgess 2006 SLT 585, 588 [14] (Lady Smith). Cf M’Glone v British Railways Board [1966] SC HL 1, 15 (Lord Guest), saying that the Act defined the occupier’s duty ‘in respect of dangers due to the state of the premises’, a remark probably explained by the context of the case, where a child trespasser was burned as a result of coming into contact with live wires on a transformer. 93 See, eg, Hill v Lovett 1992 SLT 994 (window-cleaner bitten by pugnacious West Highland terriers); Dunn v Carlin 2003 SLT 342 (petrol ignited when being decanted from vehicle); Nicol v Advocate General Scotland [2003] CSOH 65 (11 March 2003) (car collided with cable of ‘fun slide’ at racecourse); Donaldson v Hays Distribution Services Ltd [2004] CSOH 44 (25 February 2004), affd 2005 SLT 733 (pursuer injured when hit by lorry); Stewart v Matalan Retail Ltd [2006] CSOH 167 (20 October 2006) (pursuer injured by child running into her); Phee v Gordon [2011] CSOH 181 (4 November 2011), affd 2013 SLT 439 (pursuer hit by golf ball while playing golf ). 94 See, eg, Titchener v British Railways Board 1983 SLT 269, 272 (Lord Hunter): ‘as the law of England has taken a somewhat different course from that followed in the Scottish statute I do not consider it advisable or safe to attempt to apply principles derived from English cases in the field of occupiers’ liability’. 95 See above n 17. There is a useful analysis of each Act in Allen M Linden and Bruce Feldthusen, Canadian Tort Law (LexisNexis, 9th ed, 2011) 719–42. 96 Man OLA s 2; NS OLA s 3; Ont OLA s 2; PEI OLA s 2. Alta OLA and BC OLA do not contain an express statement to this effect. 97 Alta OLA s 12. 98 Man OLA s 3(1). 2015] Two Problems of Occupiers’ Liability — Part One 147 statutory provisions. Where parliament has spoken, it is a mistake to start with common law authority.110 Secondly, in Victoria the OLA in its terms confines its effect to amending the standard of care of occupiers, rather than extending to both duty and standard. This limitation is evident both in the operative provisions111 and the long title. The long title of the Western Australian Act follows the Victorian example, though the operative provisions are differently drafted. As a result, there has been some suggestion in the case law in Western Australia that the Act only deals with standard of care,112 a controversy not found in the overseas OLAs discussed above. The other Australian OLAs are not drafted in this form. This is a complication that was probably not envisaged when this legislation was drafted. Thirdly, the Victorian Act was again innovative in incorporating a statuto- ry list of factors to which consideration has to be given in determining whether the duty of care has been discharged.113 Though this list by and large sets out considerations that would have been taken into account anyway, had this process been left to the common law, it appears that it was thought advisable to have a statutory list because of the likelihood that the issue of whether the defendant was in breach of duty would be determined by a jury,114 since jury trials are still not uncommon in Victoria in personal injury cases. Even though there are no jury trials in the other three Australian OLA jurisdictions, the legislation in those jurisdictions has followed Victoria and incorporates the statutory factors. Finally, in 2002 and 2003 most Australian states and territories, including the four OLA jurisdictions, adopted statutory statements determining when a defendant is guilty of negligence. As a result, in cases of occupiers’ liability there are two overlapping sets of criteria, without any legislative statement of the relationship between them. 110 Neindorf (2005) 222 ALR 631, 641 [42] (citations omitted). 111 Wrongs Act 1958 (Vic) s 14B(1). 112 See below Part III(B)(5)(b). 113 Wrongs Act 1958 (Vic) s 14B(4). 114 See Victoria, Parliamentary Debates, Legislative Council, 8 November 1983, 830 (J H Kennan, Attorney-General). It appears that the model was a Saskatchewan Bill which was never enact- ed: at 832–3 (J H Kennan, Haddon Storey). Saskatchewan has retained the common law: see above n 17. 148 Melbourne University Law Review [Vol 39:128 These factors have influenced the way in which the OLAs have been inter- preted by courts in Victoria, Western Australia, South Australia and the Australian Capital Territory. Drafting differences make it preferable to examine each Act separately. While there are some common problems, case law in each jurisdiction has generally developed in isolation from the others. We look first at Victoria, the first jurisdiction to legislate, then at the Australi- an Capital Territory because the legislation is very similar to Victoria. We then look at South Australia, and finally at Western Australia where, perhaps surprisingly, there has been more case law, and more controversy, than anywhere else. 2 Victoria After protracted consideration by the Victorian Chief Justice’s Law Reform Committee,115 Victoria in 1983 became the first Australian jurisdiction to enact occupiers’ liability legislation. The Occupiers’ Liability Act 1983 (Vic) added a new pt IIA to the Wrongs Act 1958 (Vic). The main section so added was s 14B, which provides (in part): 14B Liability of occupiers (1) The provisions of this Part apply in place of the rules of the common law which before the commencement of the Occupiers’ Liability Act 1983 de- termined the standard of care that an occupier was required to show towards persons entering on his premises in respect of dangers to them. (2) Except as provided by subsection (1) the rules of common law are not affected by this Part with respect to the liability of occupiers to persons entering on their premises. (3) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises. Subsection (4) sets out the circumstances which have to be considered ‘in determining whether the duty of care under subsection (3) has been dis- 115 See Victorian Chief Justice’s Law Reform Committee, above n 19. The matter was under consideration from 1956 to 1982: Victoria, Parliamentary Debates, Legislative Council, 12 October 1983, 437 (J H Kennan, Attorney-General). 2015] Two Problems of Occupiers’ Liability — Part One 149 charged’.116 The long title of the 1983 Act, which does not appear in the Wrongs Act 1958 (Vic), was: ‘An Act relating to the Standard of Care owed by Occupiers and Landlords of Premises to Persons on the Premises, to amend the Wrongs Act 1958 and for other purposes’. Having achieved its objective, the 1983 Act was eventually repealed.117 The cases on s 14B explore a number of themes. (a) Relationship with the Common Law In general, the Victorian courts have resisted the temptation to look primarily to common law developments in the field of occupiers’ liability rather than starting with the Act. There is an important statement by Neave JA of the Victorian Court of Appeal in Central Goldfields Shire v Haley,118 an action against a local authority in respect of an accident on a footpath. Referring to the judgment of Kirby J in Neindorf, her Honour said: Since the appellant was not an occupier of the temporary footpath, it is unnec- essary for the purpose of this appeal to define the nature of the duty of care which the appellant would have owed Mrs Haley in that capacity. Had this court been required to determine the duty of care which an occupier owed an entrant onto the occupier’s property, I consider that it would have been incor- rect for the court to begin its analysis by applying the common law duty of care. The duty of an occupier is governed by the words of s 14B(3) …119 It is true that there are a few first instance cases where judges seem to have been heavily influenced by common law authorities, and make only passing reference to the statutory provisions.120 There are also cases where judges have suggested that nothing turns on the difference between the common law and the Act: Phillips JA expressed this view in Kocis v S E Dickens Pty Ltd,121 where the plaintiff slipped on a pool of disinfectant on the floor of a super- market, and claimed in the alternative at common law and under the Act. It 116 Further matters were added by the Wrongs and Other Acts (Public Liability Insurance Reform) Act 2002 (Vic) s 3. 117 Statute Law Revision Act 1995 (Vic) sch 1 s 3(1). 118 (2009) 24 VR 378. 119 Ibid 380 [4]. 120 See, eg, Brown v Owners Corporation SP021532U [2013] VSC 126 (21 March 2013) [2]–[4] (Dixon J). 121 [1998] 3 VR 408, 411. 152 Melbourne University Law Review [Vol 39:128 lighting grid and bringing it down on the plaintiff ’s head.130 This was dealt with as a case of general negligence, and the judge accepted a submission that there could be no case under s 14B(3). This was clearly correct, since the activity was not in relation to the state of the premises.131 3 Australian Capital Territory The Australian Capital Territory occupiers’ liability legislation closely resem- bles the Victorian Act, though it was enacted much later. Section 168(1) of the Civil Law (Wrongs) Act 2002 (ACT)132 provides that: (1) An occupier of premises owes a duty to take all care that is reasonable in the circumstances to ensure that anyone on the premises does not suffer injury or damage because of— (a) the state of the premises; or (b) things done or omitted to be done about the state of the premises. Section 168(2) reproduces the Victorian provision setting out the matters to which consideration must be given in deciding whether the duty of care has been discharged.133 Section 168(4) says that the section replaces the common law rules about the standard of care an occupier of premises must show to people entering on the premises in relation to any dangers to them. Prior to 1987, occupiers’ liability legislation was under discussion in the Australian Capital Territory, but these plans were shelved following the decision of the High Court in Zaluzna.134 From 1987 onwards the Australian Capital Territory courts applied mainstream common law principles in 130 (1998) Aust Torts Reports ¶81-481, 65 180 (Charles JA). 131 See also Victorian Workcover Authority v Victorian Institute of Forensic Mental Health [2009] VCC 0827 (3 July 2009) [56] (Judge O’Neill). It seems that O’Hare v Garvey [2009] VCC 1473 (14 September 2009), where injury caused by tripping over a dog was dealt with under s 14B, must be explained on the basis that the dog lying on a dark rug in a darkened hallway was part of the state of the premises. 132 Originally numbered s 101, renumbered by the Civil Law (Wrongs) Amendment Act 2003 (No 2) (ACT) s 55. 133 The extra items added to the Victorian provision in 2002 (see above n 116) are not repro- duced in the Australian Capital Territory provision. 134 Zaluzna was an appeal from the Victorian Full Court: the accident occurred in 1979 and so the Victorian OLA was not applicable. 2015] Two Problems of Occupiers’ Liability — Part One 153 occupiers’ liability cases.135 However, s 168 was unexpectedly inserted into the Civil Law (Wrongs) Act 2002 (ACT), which aimed to combine implementing the recommendations of the Ipp Report with codifying the Australian Capital Territory statutory provisions on tort. The Explanatory Memorandum said that the purpose of the provision was to remove the emphasis on categories and replace it with general principles, and so it abolished the ‘old law relating to categories and substituted the general law of negligence’.136 The Explanato- ry Memorandum noted that the High Court had reached the same position in Zaluzna (without appreciating that the High Court decision had already made the necessary change in the law of the Australian Capital Territory without any need for legislation). The Explanatory Memorandum was referred to by Besanko J in Doolan v Belgravia Health and Leisure Group Pty Ltd,137 who noted that s 168 was generally similar to the South Australian legislation considered by the High Court in Neindorf. The reform has resulted in more than a little confusion. In at least one case where the injury occurred after the legislation came into force, no mention was made of s 168.138 Other cases apply s 168, but a major issue has been the relationship between this section and the statutory test of breach of duty and the other general principles of negligence set out in ch 4 of the Civil Law (Wrongs) Act 2002 (ACT). In Morales v Commissioner for Social Housing (‘Morales’), Master Harper said it was unclear whether the legislature intended ch 4 to apply to claims against an occupier, and a factor against its application was that s 168(3) specified particular provisions of the Act which did apply (not including ch 4).139 However, in his view it was not necessary to determine this question in order to decide the case. This issue is pursued in Part Two of this article.140 135 See, eg, O’Meara v Dominican Fathers (2003) 153 ACTR 1; see also Hauser v Commissioner for Social Housing [2013] ACTSC 104 (13 June 2013) [37] (Master Harper). 136 Explanatory Memorandum, Civil Law (Wrongs) Bill 2002 (ACT) pt 8.1. 137 [2011] ACTSC 202 (16 December 2011) [48]. 138 Jennings v Westfield Shopping Centre Management Co (ACT) Pty Ltd [2010] ACTSC 11 (19 February 2010). 139 [2012] ACTSC 117 (13 July 2012) [21]. 140 See also Doolan v Belgravia Health and Leisure Group Pty Ltd [2011] ACTSC 202 (16 December 2011) [48] (Besanko J); Brozinic v Iss Facility Services Australia Ltd [2014] ACTSC 8 (7 February 2014) [52] (Master Mossop). 154 Melbourne University Law Review [Vol 39:128 Issues which have arisen in Victoria have also occurred in the Australian Capital Territory jurisprudence. Section 168(4), like its Victorian equivalent, says that the section replaces the common law rules about the standard of care of the occupier. In Morales, Master Harper quoted this subsection but said in the very next paragraph of his judgment that ‘[b]y virtue of s 168(1), an occupier owes a duty to take all care that is reasonable in the circumstances’.141 The same diversity of language is evident in another of his judgments.142 There is at least one case which tests the limitation in s 168(1) that it applies to injury or damage because of the state of the premises or things done or omitted to be done about the state of the premises. Harris v Commissioner for Social Housing143 was a claim by a tenant against the defendant as occupier for injury resulting from the disruptive behaviour of another tenant. Master Mossop said this case raised the question whether ‘state of the premises’ extended beyond the physical condition of the premises to include the behaviour of another tenant in the same complex, and if it did not, whether the consequence was that the matter was left to the common law.144 As in many other such cases, the judge was able to avoid answering this question because ‘[t]he test applied under s 168 and under the common law is, in substance, the same’.145 Master Mossop examined the Explanatory Memorandum for the Civil Law (Wrongs) Bill 2002 (ACT) and concluded that its intention was to make the class of entrant irrelevant for the purpose of assessing the standard of care of an occupier.146 He noted that the High Court had reached the same position in Zaluzna in 1987, and commented: Having regard to the fact that Zaluzna had represented the common law of Australia since 1987 it is not at all clear what the legislature in 2002 was intend- ing to achieve by this provision. However it can be seen that the provision, in so 141 [2012] ACTSC 117 (13 July 2012), [17]–[18] (emphasis added). 142 Bailey v Lend Lease Funds Management Ltd [2013] ACTSC 56 (5 April 2013) [67]. 143 (2013) 8 ACTLR 98. 144 Ibid 128–9 [143]. 145 Ibid 129 [146]. 146 Ibid 129 [144]. 2015] Two Problems of Occupiers’ Liability — Part One 157 applies to such cases in place of the common law,157 and so it is the court’s duty to begin with the relevant statutory provisions, as Kirby J emphasised in the High Court in Neindorf, which was a South Australian appeal. Since the statute directs the courts to apply the law of negligence, there is no problem in referring to Zaluzna and other common law authorities.158 Confining the statutory provisions to the dangerous state or condition of the premises eliminates the controversy experienced in England and elsewhere about whether the legislation applies to activities. In several cases, courts have said expressly that in cases where the loss is not attrib- utable to the dangerous state or condition of the premises, the legislation is not relevant. In Glenmont Investments Pty Ltd v O’Loughlin [No 2], for example, a large mechanical dinosaur on exhibition at the Royal Adelaide Show caught fire while being dismantled, due to the negligence of one of the defendants who was using oxyacetylene cutting equipment.159 The Full Court of the Supreme Court of South Australia said that the legislation had to be put to one side because it dealt with liability for injury, damage or loss attributable to the dangerous state or condition of the premises, and the plaintiff ’s loss in this case was not attributable to any of these things.160 One case where the proper classification of the facts made a difference was Rabbitt v Roberts,161 where a one-year-old child being cared for at a day centre was negligently supervised and allowed to fall into a dam. The issue was whether the defendant could claim on his insurance policy, which only covered his liability as owner or occupier. The Full Court of the Supreme Court of South Australia confirmed the trial judge’s decision that the defend- 157 Civil Liability Act 1936 (SA) s 22(1). See Errington v Target Australia Pty Ltd (1995) 65 SASR 378, 381–2 (Williams J). 158 See, eg, Spargo v Haden Engineering Pty Ltd (1993) 60 SASR 39; Cutts v O’Neil (1998) 72 SASR 56; Junkovic v Neindorf (2004) 89 SASR 572; Ragnelli v David Jones (Adelaide) Pty Ltd (2004) 90 SASR 233. 159 (2000) 79 SASR 185, 266 [359] (Doyle CJ, Nyland and Martin JJ). See also Nguyen v Hiotis (2000) 76 SASR 522 (threats by security guards at fashion parade); Akula Pty Ltd v CSX World Terminals Pty Ltd [2006] SASC 67 (16 March 2006) (semitrailer parked overnight on unsealed road, goods damaged as result of trailer sinking into soft surface); McVicar v S & J White Pty Ltd (2007) 97 SASR 160 (cleaner cleaning commercial cooking range upset bucket of petrol, having failed to turn off pilot light). 160 Glenmont Investments Pty Ltd v O’Loughlin [No 2] (2000) 79 SASR 185, 266 [359] (Doyle CJ, Nyland and Martin JJ). 161 (1996) 67 SASR 358. 158 Melbourne University Law Review [Vol 39:128 ant could not have been held liable in this capacity, because the premises were not in a dangerous state and he was not liable by reason of occupation or control of the premises.162 The Court said that though the defendant had been sued in negligence, it was necessary to show that he could have been sued under a relevant law as to occupiers’ liability, one where it would have been a necessary averment that he was the occupier of the premises.163 This was not possible, because the plaintiff could not have succeeded in an action under the predecessor of the Civil Liability Act 1936 (SA) s 20.164 5 Western Australia Western Australia, like Victoria, anticipated the reform of the common law brought about by Zaluzna.165 The WA OLA, which commenced on 25 November 1985, was based on the United Kingdom legislation but the key provisions used the Scottish Act,166 rather than the English Act, as a model:167 4 Application of sections 5 to 7 (1) Sections 5 to 7 shall have effect, in place of the rules of the common law, for the purpose of determining the care which an occupier of premises is required, by reason of the occupation or control of the premises, to show towards a person entering on the premises in respect of dangers — (a) to that person; or 162 Ibid 364 (Cox J), 364 (Matheson J), 365 (Duggan J). 163 Ibid 362 (Cox J). 164 Ibid 366. 165 The Occupiers’ Liability Bill 1984 (WA) was introduced into the Legislative Council on 21 November 1984, three weeks before the publication of Deane J’s judgment in Hackshaw v Shaw (1984) 155 CLR 614: Western Australia, Parliamentary Debates, Legislative Council, 21 November 1984, 4368 (J M Berinson, Attorney-General). There is no reference to this judgment in subsequent debates on the Bill. 166 OLSA ss 1(1)–(2), 2(1). 167 The Bill was drafted by the Crown Solicitor with some assistance from the Law Reform Commission of Western Australia, but there was no formal reference to, or report by, the Commission. The aim was to adopt the best provisions from other jurisdictions and weave them into a coherent whole, rather than starting afresh. The first-named author, who at the time was the Executive Officer and Director of Research of the Commission, represented the Commission in this initiative. See Handford, ‘Occupiers’ Liability Reform’, above n 20, 186–7; Peter Handford, ‘Through a Glass Door Darkly: Jones v Bartlett in the High Court’ (2001) 30 University of Western Australia Law Review 75, 85–7. 2015] Two Problems of Occupiers’ Liability — Part One 159 (b) to any property brought onto the premises by, and remaining in the control of, that person, whether it is owned by that person or by any other person, which are due to the state of the premises or to anything done or omit- ted to be done on the premises and for which the occupier of premises is by law responsible. (2) Nothing in sections 5 to 7 shall be taken to alter the rules of the com- mon law which determine the person on whom, in relation to any premises, a duty to show the care referred to in subsection (1) towards a person entering those premises is incumbent. 5 Duty of care of occupier (1) Subject to subsections (2) and (3) the care which an occupier of premis- es is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omit- ted to be done on the premises and for which the occupier of premises is by law responsible shall … be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or dam- age by reason of any such danger. Sections 5(2) and 5(3) deviate from the Scottish model to ensure that a lower duty is owed to certain categories of trespasser. Under s 5(2), ‘[t]he duty of care referred to in subsection (1) does not apply in respect of risks willingly assumed’ by the entrant, and in such a case the occupier owes a duty ‘not to create a danger with the deliberate intent of doing harm … and not to act with reckless disregard of the presence of the [entrant]’. Under s 5(3), persons on premises with the intention of committing a criminal offence punishable with imprisonment are owed only this lower duty.168 Section 5(4) reproduces the factors to be taken into account in determining whether the occupier has discharged the duty of care found in the Victorian Act.169 The long title170 was also reproduced from the Victorian Act. 168 The model for these subsections was the Occupiers’ Liability Act, RSO 1980, c 14; now Ont OLA ss 4(1)–(2). WA OLA s 5(3) is now subject to the Offenders (Legal Action) Act 2000 (WA) s 5, which gives a complete defence to a defendant who can show that injury or loss was suffered in the course of criminal conduct. 169 Other provisions of the WA OLA deal with the negligence of independent contractors: at s 6; exclusion or restriction by contract: at s 7; the preservation of higher obligations: at s 8; the 162 Melbourne University Law Review [Vol 39:128 provisions were to have effect in place of the rules of the common law.180 It was assumed that the common law had no continuing role, in the same way that in England and Scotland common law development had come to a halt once the Acts had been passed.181 All this underestimated the creative power of the High Court of Australia. Inspired by a landmark judgment of Deane J, the High Court in Zaluzna abolished the common law categories and held that general negligence principles were to be applied to questions of occupiers’ liability. The post- Zaluzna case law now dominates this area in the four Australian jurisdictions which never enacted occupiers’ liability legislation. The courts in Western Australia have had to ask themselves to what extent all this is relevant when considering the interpretation of the WA OLA. The issue has been complicat- ed by the fact that the long title of the Act followed Victoria in describing it as an Act prescribing the standard of care owed by occupiers. Did this mean that the Act said nothing about duty, leaving it to the common law? The first hint of a problem occurred in Westralian Caterers Pty Ltd v East- ment Ltd (‘Eastment’)182 in 1992. Following a claim for workers’ compensa- tion, the employer claimed an indemnity from the occupier of the premises where the accident occurred. The third party notice alleged negligence, and by later amendment asserted that the respondent was an occupier under the Act. The issue was whether the claim satisfied the requirements of the Workers Compensation and Rehabilitation Act 1981 (WA) s 93, which was restricted to ‘negligence’: it was argued by the occupier that the claim under the Act was a claim for breach of statutory duty. The Full Court of the Supreme Court of Western Australia held that this was not correct. Malcolm CJ (Franklyn J and Murray J agreeing) referred to the purpose of the Act as stated in the long title and said that the purpose of the Act was to achieve by statute what the High Court had achieved by the development of the common law: The statutory provisions did not create a new cause of action for breach of stat- utory duty. What they did was to replace the former common law rules regulat- 180 WA OLA s 4(1). 181 In areas covered by the legislation. In England, where the 1957 OLA did not originally cover trespassers, common law development continued until the legislation was extended to tres- passers by the Occupiers’ Liability Act 1984 (UK): British Railways Board v Herrington [1972] AC 877. 182 (1992) 8 WAR 139. 2015] Two Problems of Occupiers’ Liability — Part One 163 ing the standard of care owed by occupiers to persons entering the premises in given situations, by a single standard of care in terms of the general duty of care referred to in Donoghue v Stevenson. In other words, the statute did no more than reform the content of the duty of care at common law in the case of occupiers for the purpose of the common law action for negligence.183 Shortly afterwards Murray J, one of the concurring judges, adopted a simi- lar view in Bryant v Fawdon Pty Ltd (‘Bryant’),184 where the plaintiff, late at night, climbed over a gate at the rear of the defendant’s premises to use the toilet and was injured when an old concrete cistern (not secured in any way, but merely resting on wooden beams) fell on her. The trial judge, applying ss 5(1) and 5(4) of the Act, had held that the defendant was negligent but the claim failed due to inability to prove causation. On appeal, Murray J said that the judge erred in proceeding straight to the question of standard of care without investigating the issue of duty. The only role of the Act was to reform the law relating to standard of care, as s 4 and the long title confirmed.185 The law as to duty of care had been settled by the High Court in Zaluzna. On the facts as found by the trial judge, the defendant owed no duty of care. White J, who concurred in this conclusion, discussed the duty issue purely in terms of the High Court decision in Zaluzna.186 However, a differently constituted Full Court took a very different view of the Act in Tonich v Macaw Nominees Pty Ltd (‘Tonich’), where a plaintiff wheeling a barrow laden with boxes down a ramp at the Metropolitan Markets slipped and suffered injury.187 The Full Court held that the plaintiff had failed to prove there was discarded fruit or other refuse on the ramp. Anderson J canvassed the question whether after the Act there was any room for a general duty of care running concurrently with the special duty under the Act, and said: 183 Ibid 146 (citations omitted). 184 (1993) Aust Torts Reports ¶81-204. 185 Ibid 62 004–6. 186 Ibid 62 011–12. Wallwork J, who dissented, discussed the standard of care provisions of the WA OLA and the High Court decision in Zaluzna without clearly distinguishing the roles played by each: at 62 000–1. 187 (Unreported, Supreme Court of Western Australia, Full Court, Malcolm CJ, Ipp and Anderson JJ, 11 March 1994) 13 (Anderson J). 164 Melbourne University Law Review [Vol 39:128 In my opinion the Occupiers’ Liability Act leaves no room for the operation of the doctrines of the common law as regards the duty of care that is owed by an occupier to an entrant. It is no longer the common law that imposes the duty but the statute and the nature and extent of the duty is defined by the statute. Insofar as para6 of the statement of claim seeks to plead a separate cause of ac- tion based upon common law principles … it is misconceived and discloses no cause of action.188 Malcolm CJ and Ipp J agreed. By 1994, therefore, there were two different lines of authority — with in- consistencies in the views adopted by Malcolm CJ. For the next 13 years, nothing was done to resolve these issues. Plaintiffs continued to plead separate causes of action in negligence and under the OLA, and the Full Court (which in 2004 became the Court of Appeal) did nothing to impose any order on this branch of the law until Homestyle Pty Ltd v Perrozzi (‘Perrozzi’) in 2007.189 In that case, Buss JA called attention to the divergent approach of the early decisions and a long line of later cases which had permitted alternative claims but done nothing to solve the problem.190 Though it was unnecessary in that case to determine the proper relationship between the Act and the common law (because the parties and the trial judge had collectively decided to ignore the Act and determine the case on common law principles), ‘[i]t is an issue which will, no doubt, require consideration and resolution in an appropriate case’.191 In subsequent cases Buss JA and others have continued to draw attention to the divergences in the case law,192 but so far there has not been a 188 Ibid 13. 189 (2007) 33 WAR 209. 190 Ibid 218–19 [23]–[29], citing: Coatz v WestCourt Ltd [2003] WASCA 49 (21 March 2003) [2] (Murray J); Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298 (3 December 2003) [54] (Malcolm CJ); Uzabeaga v Town of Cottesloe (2004) Aust Torts Reports ¶81-739, 65 628 [14] (Murray ACJ); Howells v Murray River North Pty Ltd [2004] WASCA 276 (26 November 2004) [25] (Malcolm CJ); Geroheev Pty Ltd v Wheare [2004] WASCA 206 (14 September 2004) [51] (McLure J); Town of Mosman Park v Tait (2005) 141 LGERA 171, 181 [39] (McLure JA). Buss JA pointed out that in none of these cases had Bryant and Tonich been cited: at 219 [29]. 191 Perrozzi (2007) 33 WAR 209, 219 [30] (Buss JA). 192 See, eg, Watch Tower Bible Society and Tract Society of Australia v Sahas (2008) 36 WAR 234, 237 [9]–[11] (Pullin JA), 242–3 [36]–[37] (E M Heenan AJA); Department of Housing and Works v Smith [No 2] (2010) 41 WAR 217, 223 [19]–[20] (Pullin JA), 230 [62]–[63] (Buss JA). See also Clambake Pty Ltd v Tipperary Projects Pty Ltd [No 3] [2009] WASC 52 (9 March 2015] Two Problems of Occupiers’ Liability — Part One 167 care on particular persons,199 this cannot be read as preserving the obligation owed to invitees at common law (assuming this to be higher than the standard of care imposed by the Act). In British Columbia, this argument has been specifically rejected.200 Support for the view that the first approach is incorrect can be provided by looking at what s 4(1) says about the occupier’s liability for damage to property brought onto the premises. In this respect, the Western Australian OLA is drafted more narrowly than any other, because the occupier’s liability is limited to dangers to any property brought onto the premises by the entrant and remaining on the premises in the possession and control of that person, whether it is owned by the entrant or a third person.201 At common law, it appears that the occupier would have been liable to the entrant even though the property had ceased to be under the entrant’s control,202 but the Western Australian Act reflects a policy decision that the entrant should have no cause of action against the occupier except where the property remained in his or her possession and control.203 There could be no question of an entrant whose property was damaged in circumstances where it was no longer in his or her possession and control invoking the wider rights conferred by the common law.204 199 Ibid s 8(1). 200 Stein v Hudson’s Bay Co (1976) 70 DLR (3d) 723, 727–8 (Bouck J). In Weiss v Greater Vancouver YMCA (1979) 11 BCLR 112, 118 [15]–[16] (Aikins JA for the Court) the British Columbia Court of Appeal, though declining to comment on this contention because it had not been pleaded or argued, held that the standard of care under the British Columbia Act was comprehensive and it was unnecessary to consider the common law standard of care. 201 WA OLA s 4(1)(b) (emphasis added). 202 See, eg, Drive-Yourself Lessey’s Pty Ltd v Burnside [1959] SR (NSW) 390 and other cases discussed above nn 67–9. 203 Note the similar situation in Ireland, where the Occupiers’ Liability Act 1995 (Ireland) limits liability to trespassers within narrower confines than the pre-existing common law (as a result of the influence of farming organisations and similar groups): see McMahon and Binchy, above n 3, 315–16. 204 There is very little authority on s 4(1)(b). However in McHugh v Macedonian United Society Community Centre of WA Inc (Unreported, Perth Local Court, 30 August 1995) Senior Mag- istrate Martin considered the effect of the WA OLA on the occupier’s liability for theft. The plaintiff ’s car was stolen from a car park while she was playing bingo, and she sued the occu- pier. The defendant argued that there was no duty of care owed, citing Tinsley v Dudley [1951] 2 KB 18, 31 (Jenkins LJ), but Senior Magistrate Martin held that the Act had super- seded the common law: at 15. His Honour confirmed that there had been no bailment and so 168 Melbourne University Law Review [Vol 39:128 A further argument against the first approach is provided by Callinan J in Jones v Bartlett,205 discussing s 9 of the WA OLA, which deals with the duty of care of landlords. The High Court considered the nature of the duty of care owed by landlords at common law, but his Honour was the only member of the Court to consider whether the Act left room for landlords to be subjected to common law duties.206 His Honour came to the conclusion that s 9 covered the field.207 (d) The Second Approach: The Occupiers’ Liability Act is Limited to Standard of Care As we have seen, some judicial statements have adopted the view that the WA OLA is confined to reforming the rules as to standard of care, replacing the old category-specific rules with a single standard of care owed to all en- trants,208 and leaving duty to be dealt with by the common law. This approach is founded on the long title, which says that the Act prescribes the standard of care owed by occupiers and landlords. However, it is submitted that it is incorrect. Section 4(1) refers to the duty of care of occupiers, and s 5(1) is either a statement of that duty, or a combined statement of duty and breach.209 This may be concealed by the fact that these sections, following the wording of the Scottish OLSA, simply refer to ‘the care’ which an occupier of premises is required to show, whereas the equivalent English provisions refer to the duty of the occupier.210 The surrounding provisions of the Act refer to the occupi- er’s duty of care,211 and the heading to s 5 reads: ‘[d]uty of care of occupier’.212 the property remained in the possession and control of the entrant: at 7. However, there was no liability because there was no breach of duty by the occupier. 205 (2000) 205 CLR 166. 206 The other justices simply assumed that the Act existed alongside the common law. 207 Jones v Bartlett (2000) 205 CLR 166, 252–3 [290]–[291]. Callinan J’s argument is discussed in more detail in Handford, ‘Through a Glass Door Darkly’, above n 167, 87–90. 208 Subject to WA OLA ss 5(2)–(3): Eastment (1992) 8 WAR 139. 209 In Geroheev Pty Ltd v Wheare [2004] WASCA 206 (14 September 2004) [50], McLure P suggested that s 5(1) ‘conflates issues of duty of care and breach of duty’. The authors suggest that this is the correct approach to this section. 210 1957 OLA ss 1(1)–(2), 2(1)–(2). 211 WA OLA ss 4(2), 5(2) (‘[t]he duty of care referred to in subsection (1)’), 5(3), 5(4), 7(1) (‘[t]he duty of an occupier of premises under this Act’). 212 In the same way, the heading to WA OLA s 9 is ‘[d]uty of care of landlord’. See also at s 7: ‘[d]uty not restricted or excluded by contract’. 2015] Two Problems of Occupiers’ Liability — Part One 169 It is a settled principle of statutory interpretation that statutes should be read as a whole.213 By this test, the statute clearly deals with duty of care as well as standard of care. In Birch v Allen, Latham CJ said that the long title could be looked at for the ‘purpose of determining the scope of an Act’, and to resolve uncertainty, but it could not be used ‘to contradict any clear and unambiguous lan- guage’.214 More recent cases recognise that the long title may have a role in determining the purpose of the Act (now provisions have been added to most interpretation Acts which require courts to prefer a construction which promotes the underlying purpose or object), but there are still limitations on the role of the long title as compared with the operative provisions.215 As noted above, the long title of the Western Australian Act was copied from the Victorian Act, but this was an unfortunate borrowing.216 The Victorian Act expressly says that its provisions apply in place of the rules of the common law which formerly determined the standard of care of the occupier.217 The Victorian long title is inappropriate for the Western Australian Act, which clearly contains many provisions about the occupier’s duty; the long title apart, the only other reference to standard of care is in s 8, which deals with preser- vation of higher obligations. With the exception of the early cases referred to above, there are hardly any Western Australian cases which refer to the long title as a reason for adopting the second approach.218 More generally, the authorities which support the second approach are few in number. Though there are prominent endorsements by Malcolm CJ and 213 See, eg, Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129, 161–2 (Higgins J); K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309, 315 (Mason J). 214 (1942) 65 CLR 621, 625–6. 215 See Amatek Ltd v Googoorewon Pty Ltd (1993) 176 CLR 471, 477 (Mason CJ, Brennan, Gaudron, Dawson and McHugh JJ). See also Re Groos [1904] P 269, 273 (Gorell Barnes J), which is a well-known example of a case where the Court refused to limit the general words of the Act by reference to the long title. 216 No other OLA, in Australia or elsewhere, has a long title in this form. Other Acts follow the precedent set by the 1957 OLA: ‘An Act to amend the law of England and Wales as to the liability of occupiers and others for injury or damage resulting to persons or goods …’ . 217 Wrongs Act 1958 (Vic) s 14B(1). 218 Two District Court decisions which refer to the ‘preamble’ are clearly of little assistance: Hodge v Barham (2011) 74 SR (WA) 340, 366 [191] (Derrick DCJ); French v Van der Giezen [2013] WADC 173 (8 November 2013) [83] (Scott DCJ). 172 Melbourne University Law Review [Vol 39:128 duty is owed is not a party.230 Section 8 preserves higher obligations, and specifically those of an employer, and s 9(3) preserves duties of landlords under the existing law. The third approach was put to the test in Watch Tower Bible Society and Tract Society of Australia v Sahas.231 The plaintiff was injured in a fall at the defendant’s premises when someone switched off the lights when she was in the toilet, and she issued a writ with a general indorsement alleging negli- gence. More than six years after the accident, a statement of claim was filed pleading that the accident was caused by negligence or breach of a duty of care under the WA OLA. The defendants argued that this was a pleading of two causes of action, a common law action for negligence and a statutory cause of action under the Act.232 They sought an order striking out the action on the basis that the common law cause of action did not exist by virtue of the OLA and the cause of action under the Act was statute-barred because it sought to introduce a claim after the limitation period had expired, contrary to the rule in Weldon v Neal.233 Eaton DCJ rejected this argument at trial, indicating that he preferred the view that the Act merely made amendments to the standard of care, leaving the common law duty of care intact — the second approach discussed above. The Court of Appeal dismissed the defendant’s appeal, but on narrower grounds and without taking a definitive stand on the interpreta- tion of the Act. Pullin JA held that a general indorsement was sufficiently wide to encompass either cause of action: even if the only cause of action was that under the statute, it could still be properly described as ‘negligence’.234 E M Heenan AJA agreed but, following a full discussion of the authorities dealing with the relationship between the Act and the common law, gave some indication of where he stood on the interpretation question: As earlier explained, this is not the occasion to resolve finally the controversy about whether or not the Occupiers’ Liability Act creates an exclusive statutory liability which excludes the general law of negligence, although I certainly incline to the view that it does not have that effect, notwithstanding that, 230 See Handford, ‘Occupiers’ Liability Reform’, above n 20, 203–5. 231 (2008) 36 WAR 234. 232 Ibid 236–7 (Pullin JA). 233 (1887) 19 QBD 394. 234 Watch Tower Bible Society and Tract Society of Australia v Sahas (2008) 36 WAR 234, 238 [12]. 2015] Two Problems of Occupiers’ Liability — Part One 173 to a significant extent, it supplies the content of the standard of care owed by the occupier. … Nevertheless, if contrary to this indication, I am to adopt, as a working hy- pothesis, the view advanced by the appellants that a separate and exclusive stat- utory cause of action had been established by the Occupiers’ Liability Act, that still would not mean that the amended indorsement of claim in this present ac- tion failed to disclose or to advance such a putative cause of action.235 Though this case decisively rejects the hard-line third approach, it provides only muted support for the second approach. The Court of Appeal specifically avoided endorsing Eaton DCJ’s adoption of the second approach and proceeded on a narrower ground. E M Heenan AJA’s support for the second approach is hedged around with qualifications, as the above quotation shows. Though his Honour says only that the Act supplies the content of the standard of care, this statement is perhaps not as complete an endorse- ment of the second approach as those found in the earlier authorities, and indicates that the truth lies somewhere in between the extremes of the second and third approaches. We would suggest that the true view is that the WA OLA has replaced the common law claim for negligence in the areas which s 4(1) indicates are covered by the Act — the liability of the occupier to the entrant for injuries to person and property caused by dangers which are due to the state of the premises or anything done or omitted to be done on them for which the occupier is legally responsible — but that it is only a partial codification. It states the duty of care, though it continues to rely on the common law for key elements such as the identification of the person who owes the duty. It states the main principles as to the applicable standard of care and the determina- tion of whether the defendant is in breach. Other issues are generally left to the common law. Partial codification of this kind is by no means unique.236 An important consequence of the preferred view is that lawyers in Western 235 Ibid 249–50 [60]–[61]. 236 The Civil Liability Acts contain statutory statements of breach of duty and causation (eg, Civil Liability Act 2002 (NSW) ss 5B, 5D) but for the most part leave questions of duty of care to the common law. See also the recommendations of the England and Wales Law Commission for a scheme of partial codification of the common law in the field of psychiatric illness: Law Commission, Liability for Psychiatric Illness, Law Com No 249 (1998) 118–20 [8.1]–[8.7]. It was recommended that the proposed statutory duty of care should replace the common law duty of care to the extent that they would overlap. 174 Melbourne University Law Review [Vol 39:128 Australia should abandon the practice of claiming under the common law as an alternative to claims under the WA OLA: in areas covered by the Act, the duty set out in the Act is the only one that exists.