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Occupier's liability

Bader v Jelic [2011] NSWCA 255.  Macfarlan JA, Young & Sackville JJA agreeing. 

"As a finding has not been made that the rug upon which Mr Jelic stumbled remained in place after the accident, I do not however have regard to the subsequent lack of accidents of which Mr Bader gave evidence,” Macfarlan JA said [33]. “As pointed out in Bankstown Foundry PL v Braistina (1986) 160 CLR 301 at 309, ‘the weight that will attach to an accident-free history involves a question of fact to be determined in the light of all the relevant circumstances’. “In my view the accident-free history of five years preceding Mr Jelic’s accident is of some significance in assessing whether a reasonable person in the position of the Appellants would at the date of Mr Jelic’s accident have regarded it as necessary to have the blind pulled down over the window”, hypothetically thus to signify the window was not an entrance. Extract: CLA trips glass slipper 57 WCMS 1.

Ridis v Strata Plan 10308 [2005] NSWCA 246. McColl JA:

The duty of care owed by an occupier of premises to entrants is to take such care as is reasonable in the circumstances. Prima facie, an occupier has not breached that duty of care by not inspecting their premises for the purpose of discovering unknown and unsuspected defects: [133].

Gaskin v Ollerenshaw [2010] NSWSC 791. Garling J.

His Honour exposed incidents of duty.

“The obligation of an occupier of premises to a person who is lawfully upon the land is one to take reasonable care to avoid a foreseeable risk of injury to the plaintiff: Hackshaw v Shaw (1984) 155 CLR 614 at 662-663 per Deane J; Australian Safeway Stores PLtd v Zaluzna (1987) 162 CLR 479 at 488 per Mason, Wilson, Deane and Dawson JJ; Baker v Gilbert [2003] NSWCA 113 at [29]; The Uniting Church &c v Takacs [2008] NSWCA 141 at [29],” Garling J said [202].

“There is no tortious duty on occupiers to inspect their premises for the purpose of discovering unknown or unsuspected defects: Stannus v Graham (1994) Aust Torts Reporter 81-293; Aslanidis v Atsidakos NSWCA 13.02.89 unrep, per Meagher JA, Hope JA agreeing; Short v Barrett, NSWCA 5.10.90, unrep, per Meagher JA, Handley and Clark JJA agreeing; Ordukaya v Hicks [2000] NSWCA 180 at [44] per Sheller JA,” his Honour said [203].

“However, there is no rule of law to the effect that occupiers who do not know of the existence of a defect in their property that might cause danger to lawful visitors, but who are aware of circumstances which would alert a reasonable person to the danger from a defect may, without negligence on their part, ignore the existence of the defect: Baker v Gibert (above) [38].

Extract: Occupier's risks 46 WCMS 3

Perrett v Sydney Harbour Foreshore Authority & Anor; Wine & Vine Personnel PL v Sydney Harbour Foreshore Authority & Anor [2009] NSWSC 1026. McCallum J.

McCallum J noted Temora SC v Stein [2004] NSWCA 236: duty formulated in general terms; Carey v Lake Macquarie CC [2007] NSWCA 4 at [34]: statutory obvious risk in CLA s 5F not element of breach of duty, unlike obvious risk generally; Fallas v Mourlas [2006] NSWCA 32: difficulty with obvious risk is degree of particularity; (2006) 65 NSWLR 418 at [152], Tollhurst v Cleary Brothers [2008] NSWCA 181 at [92]: contributory negligence test is reasonable person in plaintiff’s place; Short v Barrett [1990] NSWCA 164: photographs merely aid adjudicator to witness acceptability.

On occupier’s liability, McCallum J said [39]: “Assuming the existence of a duty to take reasonable care to avoid injury to persons such as Mr Perrett, the first task, in my view, is to determine whether the defendants breached that duty. That issue is determined by applying the Shirt calculus. It is well established that the obviousness of the risk to a careful pedestrian is a relevant factor in that determination: Temora at [31] per Giles JA. It will sometimes even be a dominant factor, but it is not conclusive: Temora at [41]. That was the law before the enactment of the Civil Liability Act 2002, and in my view it remains the law.

“If it is concluded that the duty of care has been breached, only then does it become necessary to consider any substantive defences relied upon by the defendants. If that point is reached, one of the elements of the defence of voluntary assumption of risk … is that the plaintiff was aware of the relevant risk. Section 5G of the CLA [Injured persons assumed to be aware of obvious risks] is an aid to proof of that element of the defence, if the risk was obvious within the meaning of s 5F, but does not, in my view, create a discrete statutory defence.” [40]

Extract: Obvious comes second 39 WCMS 2

Schneider v State of NSW [2009] NSWDC 108. Levy DCJ. 

Levy DCJ noted an occupier’s general duty to entrants “to take reasonable care to prevent damage from unusual danger of which the occupier either knew or ought to have known, having regard all the circumstances”: Papatonakis v Australian Telecommunications Commission & Anor [1985] HCA 3; (1985) 156 CLR 7, Australian Safeway Stores PL v Zaluzna [1987] HCA 7 at [11-12], 162 CLR 479 at 488, Hackshaw v Shaw [1984] HCA 84 at [26], 155 CLR 614 at 662-663.

His Honour said [80]: “The general law principle is that a risk of injury is foreseeable, as long as it is not far-fetched or fanciful, notwithstanding that it is more probable than not that it will not occur: Wyong SC v Shirt [1980] HCA12 at [13]; 146 CLR 40 at 40-49,” such in context of s 5B [General principles] Civil Liability Act 2002, and made findings to suit that section’s parts.

The defendant failed in its contention it had no duty to inspect for unsuspected defects, relying on Stannus v Graham (1994) Aust Torts Reports 81-293 at 61,564.

According to Levy DCJ [99]: “In my view it was also unreasonable for the occupier of the school, through the actions of the deputy principal, to permit a situation to arise whereby in order to gain access to the places at which they were required to work, the cleaning staff were required to walk through the school grounds in darkness.

"I consider this to be so because such circumstances could foreseeably give rise to a risk of injury from a number of potential causes, including bumping into obstacles left in the playground, whether due to the inadvertence of students or others, or due to the after hours activities of vandals.

"I consider this to be so especially where the school authorities, including Mr Andoni and the groundsman Mr Garland, were well aware of past disruptive and destructive activities of vandals on the premises over time and after normal school hours.”

Managing the injury risk simply required lights to be left on, or operated by automatic timers, his Honour said. Noting CLA ss 5D & E, the plaintiff had satisfied causation.

Contributory negligence was not made out, the plaintiff having relied on Tarabay v Liete [2008] NSWCA 259 at [49-55].

Citing 1987 Act s 151Z, as well as Czatyrko v Edith Cowan University [2005] HCA 14 at [12] and Modbury Triangle Shopping Centre PL v Anzil [2000] HCA 61; 205 CLR 254, the defendant said the employer should be regarded as wholly liable.

Levy DCJ found the employer notionally liable with respect to lighting and safe access. Noting J Blackwood & Son v Skilled Engineering [2008] NSWCA 142 at [106-113] and Stevens v Broddribb Sawmilling Company Pty Ltd [1986] HCA 1; (1986) 160 CLR 16, his Honour apportioned 65% culpability to the defendant occupier.

Extract: School cleaner n the dark 39 WCMS 2

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