Baker v Gilbert - Case Study Example

Baker v Gilbert (2003) Name Institution Table of Contents Table of Contents 2 Introduction 3 Issue 3 Facts of the case 3 Grounds of appeal 4 Holding 5 Issues arising from the decision of the court 5 Conclusion 8 References 9 Baker v Gilbert [2003] NSWCA 113 Introduction This case established the rule that an occupier owes the duty of care to the different classes of people who may enter his premises. Initially, whether an occupier of premises was liable for injuries caused to a visitor on the property depended on the relationship between them. This meant that an occupier would be liable for injuries caused to a person who is lawfully on the property but would not be liable for injuries to a trespasser. However, the High Court in Australia later held that the law of negligence would govern the relationship between occupiers and all visitors, whether lawful or trespassers1. Issue The court in the case of Baker v Gilbert dealt with the measure of the discharge of the duty of care owed to visitors by occupiers. The issue before the Court of Appeal was whether the appellant, Mr Gilbert, had a duty to inspect and maintain the ladder and if so, whether he discharged that duty of care to the respondent, Ms Gilbert. Facts of the case Ms Gilbert, the respondent had been seriously injured when she jumped off an unstable footplate that had been attached to a swimming pool ladder and landed on the ground. The ladder provided access to and an exit from a swimming pool at Mr Baker’s premises. The respondent had been swimming with permission from the appellant where after swimming for a while she decided to leave the pool. She decided to climb the ladder which was the exit to the pool and when she had reached the footplate she decided to turn around so that she could descend with her face to the pool wall. It was not easy for her to turn on the small footplate because of her weight. While attempting to turn, the plate became shaky at which she started to fall towards the ground and then jumped landing on her feet. She however suffered serious injuries and decided to sue the appellant claiming damages for the injuries she sustained. The court of first instance upheld the respondent’s claim and awarded her damages. Mr Baker however appealed the decision. Grounds of appeal Mr Baker appealed on the grounds that the judge erred in law in finding that the footplate was unstable as a result of the inadequately tightened bolts and that he erred in holding that Mr Baker should have inspected and maintained the ladder and the footplate in discharge of the duty of care. The Court of Appeal rejected the first ground of appeal raised by the appellant. The respondent had stated that it was as a result of the footplate being wobbly that she fell towards the ground causing her injuries. The court also relied on the evidence of the inspector who had inspected the ladder who states that at the time of the inspection, the footplate was unstable. The inspector had further stated that the instability of the footplate was as a result of the nuts holding it being rusty and loose which made the footplate move to such a degree that it caused the respondent to fall. The court proceeded on this evidence and refused to uphold the first ground. The second ground was that the judge in the court of first instance erred in holding that the appellant ought to have discharged his duty of care as the occupier of the premises by inspecting or maintaining the ladder and the footplate. The court found that Mr Baker had realised that the ladder needed inspection and he in fact did inspect the ladder. The appellant should therefore have noticed that the footplate was unstable and would be a source of danger for the people using the pool. The court held that the appellant should have inspected the ladder with due care after which he would have noticed the instability of the foot ladder. Holding The court dismissed the appeal with costs2. It held that a reasonable person in the position of the appellant would have inspected the ladder and the footplate with due care. The appellant should have known that the footplate was unstable and therefor in discharging his duty of care he should have refastened the nuts to ensure that the footplate was safe for the users. Issues arising from the decision of the court The Court of Appeal in this case established that the test for the liability of an occupier of a residence is what a reasonable person in similar circumstances would do in response to a foreseeable risk. In Hackshaw v Shaw3 the principles that determine the liability of the occupier were set out. The court in Shaw’s case held that the first requirement in determining liability is whether the defendant owed a duty of care under negligence to the plaintiff. Secondly, the defendant must have foreseen a real risk of injury to the visitor. Finally the court held that whether the defendant had discharged the duty of care depended on what a reasonable man would do, in the circumstances, in response to the foreseeable risk. An occupier will therefore be liable for the injuries caused to a visitor on his premises where he failed to act like a reasonable man would do in eliminating the foreseeable risk of harm to the visitor. In determining whether the occupier acted in a reasonable way, the court will look at whether the occupier knew of the defect in his premises. The court relied on the decision in Short v Barrett4. In this case the plaintiff visited his friend and fell off the balcony and was seriously injured. The plaintiff sued the defendant seeking damages for the injuries he suffered. The court held that the defendant was not liable because he did not know of the defect in the balcony. An occupier will therefore not be considered to have acted unreasonably by assuming that the house is safe until they know that it is unsafe or are informed that it is unsafe. (Flemming, 1987) There is no duty imposed on the occupier to inspect his premises in order to identify the defects in the house5. An occupier will therefore not be liable for injuries to a visitor where a defect existed in his house which he did not know. Though the defendant is not aware of the defect in the premises, the court may find that the defendant was in breach of the duty of care where he fails to take reasonable care to avoid a foreseeable risk of injury6. In Gilbert’s case the court found that the appellant knew that the footplate was unstable. Though he did not frequently use the ladder as to know the extent, in details, of the instability of the footplate, he however knew that if the footplate became unsteady while being used by a person it was probable that such person would fall. Further, the appellant knew that the ladder needed to be inspected and he in fact inspected it. In the course of his inspection the appellant should have inspected the ladder and the footplate with due care such that he would have noticed the instability of the footplate7. The appellant could therefore not be exempted from liability based on the fact that he did not know of the instability of the footplate. The appellant had a duty of care to take reasonable care to avoid the foreseeable risk of injury arising from the instability of the footplate8. Mr Baker did not act as a reasonable man would have acted in the circumstances of the case hence he was held liable for the injuries suffered by the respondent. The Occupiers Liability Act 1985 imposes the duty to an occupier of premises to act reasonably towards a person entering his premises. The Act defines an occupier of premises as any person occupying or with control of land or any other premises9. The Act requires an occupier of premises to fulfil his obligations to act with reasonable care to ensure that the person on the premises will not suffer injury or damage as a result of any danger that exists in the premises10. The occupier cannot therefore limit his duty of care towards any person entering the premises in regard to dangers that result from the state of the premises or anything done or that has failed to be done on the premises. The duty of care is therefore owed to any person who enters the premises without any regard to the relationship of the person with the occupier of the premises. In respect of dangers willingly assumed by the person entering the premises, the occupier will not be held to be liable as long as he does not create a danger with the intention of causing harm or injury to the person or acting recklessly disregarding the presence of the person11. According to the Act, when considering whether an occupier has discharged the duty of care, the court will consider the likelihood of the injury and the knowledge the occupier has or ought to have of the likelihood of the injury to the person12. The conduct of the occupier with knowledge of the likelihood of the injury will determine whether or not the duty of care has been discharged. The court will also weigh the burden of the occupier of eliminating the danger as compared to the risk of the danger to the person13. In some cases the occupier may be allowed to restrict or modify his obligations or duty of care to the person entering the premises. This may be the case where an occupier has put a notice at the entrance of the premises excluding his liability to a person entering the premises14. In applying the provisions of the Occupiers Liability act to Gilbert’s case, the appellant would still have been liable for the injuries suffered by the respondent. The Act requires that the duty of care must be discharged reasonably. As was held by the court, the appellant did not act reasonably to eliminate the possibility of the occurrence of the injury or harm to the persons using the pool. The appellant failed to conduct investigations with care hence did not realise the extent of the instability of the footplate. The fact the investigations fell short of being done in a reasonable manner eventually resulted to the injuries suffered by the respondent. Conclusion The court in Baker v Gilbert rightly held that an occupier of premises has a duty of care towards any person entering in to his premises. The test for whether such duty has been discharged is one of reasonableness, that is, what a reasonable man would do in such circumstances. Where the occupier has not reasonably discharged the duty of care as was the case in Baker v Gilbert, the occupier is liable for any injuries suffered by the person entering the premises. The court further stated that the fact that an occupier did not know of the risk of harm means that the occupier will not normally be held liable. There is no duty for the occupier to inspect the premises in search of defects. However where a risk of harm is foreseeable to the occupier then liability will accrue. An occupier is liable where he has breached the duty of care in regard to the visitor. References Cane, P. Reforming Tort Law in Australia. A Personal Perspective (2003). Melbourne University Law Review, 27, 649. Davenport, Shayne (2012) Business and Law in Australia, Sydney, Thomson Reuters Di Castri, J. V. (1981). Occupiers Liability. Burroughs Books. Flemming, J. G. (1987). The law of torts (vol. 1). Law Book Company for New South Wales Bar Association. Giliker, P., & Beckwith, S. (2000). Tort. Sweet and Maxwell. Law Reform Committee of South Australia. The Reform of the Law on Occupiers’ Liability. [Internet]. 1973 [cited 2015 May 21]. Available from: https://law.adelaide.edu.au/research/law-reform-institute/documents/committee-reports/24-Occupiers-Liability.pdf Odgers, F.J. (1957). Occupiers’ Liability: A Further Comment. The Cambridge Law Journal, 15(01), 39-54. The Occupiers Liability Act 1985 Vermeesch, R.B., & Lindgren, K.E. (1990). Business Law of Australia. Butterworths. Vickery, R. (2012), Australian Business Law (7th edition), Forest Hill, NSW: Pearson Australia Read More