Occupiers Liability

Report No 2 of the Community Law Reform Committee of the Australian Capital Territory. This Report reflects the law as at February 1991. Committee Reference: CLRC No 2.
The Community Law Reform Committee of the Australian Capital Territory was established in June 1990. The purpose of the Committee is to assist the Government to identify areas in need of reform, anticipate emerging social and legal issues and assess the practical impact of various proposals and laws on the people of the ACT. The Committee's Office and Secretariat are at 3rd floor GIO Building, City Walk, Canberra City ACT 2601 (Tel (06)2070546, fax (06)2070538).

Summary

This report examines whether:

(i) the courts determine occupiers liability cases solely according to the general principles of negligence, or the rule in Cavalier-v-Pope still works to reduce the liability of landlords; and

(ii) legislation is necessary to remove any doubt that the general principles of negligence alone determine issues of occupiers liability, in relation to tenants and landlords.

The Report is a review of recommendations made by the Australian Law Reform Commission in its report number 42 (1988).

The Committee agrees with the recommendation of the Commission that legislation should be enacted to remove the rule in Cavalier-v-Pope.

Draft legislation which would give effect to the recommendations appears in Appendix A.

Introduction

Background

1. This is the first of three reports by the Community Law Reform Committee which review recommendations of the Australian Law Reform Commission. Under the Community Law Reform Program, established in 1984, the Commission prepared several reports including three on contributory negligence, action for loss of consortium and occupiers liability. The Attorney-General requested the Committee to review the recommendations of the Commission on these areas and as a result the Committee has now prepared a report on each. The background to the recommendations of the Commission and the consequent references to the Committee are detailed in the third report of the Committee, on contributory negligence[1].

Terms of Reference

2. The Attorney-General requested this report in a reference to the Committee signed on the 21st September 1990. The terms of reference required the Committee to review the recommendations of the Australian Law Reform Commission presented in its report number 42 (1988). The Commission concluded that:

"the High Court decision in Australian Safeway Stores-v-Zaluzna has resolved many of the difficulties of occupiers liability law and that the general principles of negligence would now apply in regard to occupiers' liability cases"

and recommended that:

"legislation be enacted to remove any doubt in regard to landlord immunity within the ACT. "

Submissions

3. In preparing this report the Committee made use of the collective experience of its members, including those with expertise in business, legal practice and community welfare, to assess the impact of proposals on the ACT community.

4. An Issues Paper[2] on this area, prepared by the Committee's Secretariat, was widely circulated and the Committee called for submissions. Two submissions were received:

. Mr J Marks, October 1990; and

. Welfare Rights and Legal Centre, October 1990.

5. The Committee also carefully considered the Commission's report number 42 on this area and discussed these issues extensively with Mr Nick Seddon who as Commissioner in charge of the Community Law Reform Program, was a primary contributor to the Commission's report. Mr Seddon is a Commissioner of the Australian Law Reform Commission as well as a member of this Committee.

Occupiers Liability

Background

6. The decision of the High Court in Australian Safeway Stores-v-Zaluzna [3] which determined that the common law principles of negligence should apply to the facts of occupiers' liability cases, has resolved many of the difficulties of occupiers' liability law.

7. However, the law in this area is not as clear with respect to a special rule that arguably still applies to landlords. The rule in Cavalier-v-Pope [4] provides an immunity to landlords in respect of occupiers' liability. A landlord may not be sued for injury done to a person who enters onto leased premises even where the landlord is responsible for the state of the premises.

8. Cavalier-v-Pope was a case decided before an English Court in 1906. The wife of the tenant fell through the kitchen floor and hurt herself. The Court said that since the wife was not a party to the agreement between the landlord and her husband she would be placed into the same class of persons as a licensee. As the landlord was not liable to the tenant's guests or customers the wife did not have a case and accordingly could not recover damages.

The Law in ACT

9. It is not clear whether the rule in Cavalier-v-Pope applies in the ACT. If it does, tenants could be responsible for personal injury to people (whether a dinner guest or a shopper in a store) who come onto their leased premises even if the defect in the premises that caused the injury is the landlord's responsibility.

Recommendation

10. The Committee agrees with the recommendations of the Commission that the relationship between occupiers of all classes, including unauthorised entrants, should be dealt with on the basis of applying the general principles of negligence. However, the Committee considers that it is necessary to enact legislation to remove any doubt in regard to landlord immunity within the ACT.

Financial Considerations for the ACT Government

11. The implementation of these recommendations will not require the ACT Government to incur any financial cost.

Bibliography

Cavalier v Pope (1906) Appeal Cases 496

Australian Safeway Stores v Zaluzna (1987) 162 CLR 479

Community Law Reform Committee, Report No. 1, Canberra 1991

Australian Capital Territory, Department of Justice and Community Services, Issues Paper, Occupiers Liability, Canberra, 1990.

Australian Law Reform Commission, Report No 42, Occupiers' Liability.

Participants

The Committee

Chairperson

The Honourable JJA Kelly, QC

Deputy Chairpersons

Ms Jenny Kitchin

Chief Magistrate Mr RJ Cahill

Committee Members

Mr Nick Seddon

Mr Graeme Lunney

Mr Peter Sutherland

Mrs Betty McNee

Mr Rod Campbell

Ms Judy Harrison

Professor Roman Tomasic

Professor Duncan Chappell

Ms Robin Burnett

Mr Rainer Frisch

Mr Ross Gengos

Mr Peter Hohnen

Law Reform Unit - Secretariat to Committee

Director: Mr Peter Quinton

Senior Legal Officer: Ms Tracy Reid

Project Officer: Mr David Snowden

Word processing/Secretarial: Margaret Ryan

Terms of Reference

I, BERNARD COLLAERY, Attorney-General of the Australian Capital Territory, HAVING REGARD TO -

the recommendations of the Australian Law Reform Commission, made in its report No. 42 (occupiers liability) to the Commonwealth Attorney-General that:

(i) the common law rule in Cavalier-v-Pope which provides that a landlord is not liable in occupiers' liability should be abolished if it applies in ACT law;

(ii) the general principles of negligence should be applied by the courts in determining occupiers' liability cases;

REFER the following matter to the Community Law Reform Committee as provided for in the Constitution of the Committee:

TO REVIEW the laws in force in the Territory with respect to the status of the rule in Cavalier-v-Pope and whether the general principles of negligence apply in determining occupiers' liability cases;

AND TO REPORT

(a) which, if any, of the recommendations of the abovementioned report of the Law Reform Commission should be adopted in whole or in part; and

(b) on any other relevant matter the Committee wishes to take into consideration.

IN MAKING ITS REVIEW AND REPORT the Committee will have regard to any views of business, community or government agencies on the subject matter of this reference.

SIGNED THIS 21ST DAY OF SEPTEMBER 1990

BERNARD COLLAERY

ATTORNEY-GENERAL