Home | Databases | WorldLII | Search | Feedback University of Melbourne Law School Research Series

Luntz, Harold --- "Editorial Comment: Reliving History" [2010] UMelbLRS 6

Last Updated: 27 September 2010

This paper was first published in the Torts Law Journal, Volume 18, Issue 2, pp. 107-124, 2010

Editorial Comment

Harold Luntz[*]

Reliving history

‘Those who cannot remember the past are condemned to repeat it.’[1]

In this issue we publish a paper by the Hon David Ipp, ‘The Reach of the Dederer Principle’. As the paper points out, the judgment of Gummow J in Roads and Traffic Authority of NSW v Dederer[2] observed that the expression of the scope of the RTA’s duty, which was taken from the judgment of Gaudron, McHugh and Gummow JJ in Brodie v Singleton Shire Council,[3] had long antecedents in the law of occupiers’ liability. The paper draws attention to the decision of the High Court of Australia in Australian Safeway Stores Pty Ltd v Zaluzna.[4] That decision swept away the rigid distinctions between most types of entrants on to land (and some chattels, like ships and aircraft) and the varying duties of care or otherwise that were owed to the different categories by the occupiers of the premises at common law. Since that decision, a generation of lawyers has grown up which has had no need to know of the distinctions that plagued the law of occupiers’ liability. It may, therefore, be worthwhile to remind readers of some of that law and of the attempts to modernise it. Before doing so, I draw attention to the issue of the scope of the duty of care in the law of negligence. In Australia there has been a renewed emphasis on this concept, especially since the case of Modbury Triangle Shopping Centre Pty Ltd v Anzil, which held that it was outside the scope of the duty of care of an occupier of a shopping centre to guard against a criminal attack on an employee of one of the shops in the centre.[5] This Comment recognises that there is a role for the concept, but it is a limited one and it should not be used to reintroduce rigidities that were found in the law of occupiers’ liability, which proved very difficult to extirpate.

Scope of the duty of care

In Donoghue v Stevenson Lord Atkin famously said that ‘there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances’.[6] He went on to state that principle: ‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.’[7] He further explained that ‘your neighbour’ was more restricted in law than in morality. In contrasting the requirements of law and morality, he alluded to the parable of the Good Samaritan in the Christian bible.[8] In that context, he spoke of ‘acts or omissions which any moral code would censure’, thereby implying moral criticism of the priest and the Levite, who in the parable ‘passed by on the other side’.[9] In contrast, the legal rule that ‘you must not injure your neighbour’[10] means that failing to go to the aid of people would ordinarily be outside the scope of the duty to take reasonable care, even where those people were clearly within one’s contemplation.[11] As Deane J memorably put it, ‘both priest and Levite ensured performance of any common law duty of care to the stricken traveller when, by crossing to the other side of the road, they avoided any risk of throwing up dust in his wounds’.[12] Subject to exceptions,[13] pure omissions remain outside the scope of duties of care in negligence.

The actual decision in Donoghue v Stevenson illustrates the movement from a duty of care of restricted scope to a general one. In what might be seen as the original ratio decidendi of the case, Lord Atkin formulated the duty of care called for by the facts which were averred:

a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care.[14]

This formulation allowed for debate as to the scope of the duty of care on a manufacturer towards the ultimate consumer. The headnote writer in the authorised reports confined the duty to ‘the manufacturer of an article of food, medicine or the like’.[15] However, such a limitation was soon rejected when the Privy Council in Grant v Australian Knitting Mills Ltd said that ‘[n]o distinction ... can be logically drawn for this purpose between a noxious thing taken internally and a noxious thing applied externally’.[16] Counsel before the Privy Council sought, however, to place a different limitation on the scope of the manufacturer’s duty. He drew attention to the fact that in Donoghue v Stevenson the ginger beer was in a sealed and opaque container and Lord Atkin’s formulation of the duty of care spoke of the goods reaching the consumer in the form in which they left the manufacturer ‘with no reasonable possibility of intermediate examination’, whereas in Grant’s case ‘the garments might be handled and inspected by others before reaching the’ consumer.[17] This limitation, too, the Privy Council rejected, holding that ‘the essential point ... was that the article should reach the consumer or user subject to the same defect as it had when it left the manufacturer’.[18]

The intermediate examination point had indeed prevailed earlier in Farr v Butter Brothers & Company.[19] In this case a worker had been killed by a defective crane which he had assembled himself and so become aware of some of its faults. Before Donoghue v Stevenson was decided, the trial judge withdrew the case from the jury. By the time of the appeal, Donoghue v Stevenson had been decided and the court subjected it to close analysis. The appeal was dismissed because ‘[h]ere there was ample opportunity for intermediate examination’.[20] The case cannot be explained as turning on contributory negligence, which at that time was a complete defence. Counsel’s submission that the issue of contributory negligence should have been left to the jury was rejected because, in the view of Scrutton LJ, the problem facing the plaintiff arose earlier than that,[21] viz at the duty stage.

In Voli v Inglewood Shire Council, Dixon CJ thought that the limitation of the duty of care to cases where there was no reasonable possibility of intermediate examination had misled the trial judge.[22] Denying a duty of care where there was the possibility of intermediate examination involved, according to Windeyer J, with whom Dixon CJ agreed, ‘too literal an application of Lord Atkin’s statement’.[23] The possibility of intermediate examination raised issues of causation and remoteness, not duty of care.[24] This led the court in Suosaari v Steinhardt[25] to say:

The application ... of a duty of care of a manufacturer formulated in accordance with the ‘neighbour’ test of proximity and reasonable foreseeability as laid down by Lord Atkin in Donoghue ... is in accord with the approach of the High Court to abolish any special rules or special formulation of duty arising out of particular relationships and apply a single unifying principle of negligence.[26]

Although the actual decision is therefore no longer good law, Farr v Butter Brothers & Company[27] can still provide some guidance on the issue of the scope of the duty of care. Scrutton LJ criticised both Lord Atkin’s general formulation of the duty of care and the statement of Lord Esher in Heaven v Pender,[28] on which it was based, as being too wide. To adapt one of his examples, a supermarket that opened next door to a milk bar would be under a duty of care, for instance, not to cause physical damage to the milk bar, but would not be under any duty of care in the pricing of its products to prevent financial loss to the milk bar’s proprietor. If she had paid for her ginger beer, instead of it being given to her by her friend, and had discovered a snail before drinking any of it, Mrs Donoghue would have had her remedy for recovery of the price under her contract with the seller, but could almost certainly not have recovered it in tort from the manufacturer.[29] The scope of the manufacturer’s duty laid down in Donoghue v Stevenson did not extend to pure economic loss.

It is possible to explain this on the basis of remoteness of damage.[30] Where recovery is denied for financial loss consequential on physical injury to property, it is probably more natural to speak in terms of remoteness. In Metrolink Victoria Pty Ltd v Inglis,[31] the operator of Melbourne’s trams claimed damages in respect of penalty payments imposed on it as a result of delays caused by an accident due to the negligence of a motorist. The court dealt with the claim as a matter of remoteness, but recognised that the outcome was dependent on similar policy issues to those that arise in relation to duty of care in relation to pure economic loss.[32] As Lord Denning MR long ago said:

The more I think about these cases, the more difficult I find it to put each into its proper pigeon-hole. Sometimes I say: “There was no duty.” In others I say: “The damage was too remote.” So much so that I think the time has come to discard those tests which have proved so elusive. It seems to me better to consider the particular relationship in hand, and see whether or not, as a matter of policy, economic loss should be recoverable, or not.[33]

In Vairy v Wyong Shire Council,[34] McHugh J acknowledged that there are some areas of the law of negligence where the duty of care is stated in more limited and specific terms than as a duty to exercise reasonable care in all the circumstances of the case. He referred to the liability of occupiers of private land, where that had been so until Zaluzna. He gave as a continuing example the law in respect of negligent misstatements. Presumably, he confined this example to those misstatements causing economic loss only — as is illustrated, for example, by Tepko Pty Ltd v Water Board[35] — because he went on to say that ‘[i]n negligence cases involving physical injury, however, the duty is always expressed in terms of reasonable care’.[36] Even in relation to physical injury, however, there are situations where policy reasons may make it necessary to limit the scope of the duty of care. As Mason P pointed out in McPherson’s Ltd v Eaton,[37] knowing whether one is dealing with an aspect of the duty of care or with breach of a general duty may be vital in relation to issues such as the competency of an appeal. The court there agreed that the mere relationship of retailer to customer was insufficient to give rise to a general duty of care and all issues of what the retailer should have done could not be left for determination as a matter of breach. For reasons spelt out by Ipp JA in this case,[38] ‘something more’ was required to define the scope of the retailer’s duty of care.[39]

A more recent example is CAL No 14 Pty Ltd v Motor Accidents Insurance Board.[40] Clearly, Zaluzna requires the proprietor of licensed premises to exercise reasonable care towards patrons in relation to the condition of the premises. In CAL, however, the High Court held that the proprietor of licensed premises does not owe a duty of care to a patron to monitor the patron’s consumption of alcohol and to protect the patron from the consequences of that consumption. In so deciding, the High Court rejected the approach of McHugh J in Cole v South Tweed Heads Rugby League Football Club Ltd,[41] who held that such a duty was encompassed in the general duty of an occupier towards persons on the premises.[42]

In his dissenting judgment in Neindorf v Junkovic,[43] Kirby J gave three reasons for not defining the content of the duty of care in too specific terms. He referred to two reasons advanced by the late Professor John Fleming:

• that the duty concept is already complex and overworked and should not be further burdened;
• and that a definition of duty of care in specific terms obscures the respective functions of judge and jury.

His Honour observed that the distinction between the functions of judge and jury remains important despite the decline in jury trials because of the different standards of appellate review. Kirby J added a third reason for not defining the content of the duty of care too specifically: it blurs the constituent elements of the tort of negligence and leads to the danger of the breach issue being pre-empted.

Gummow J, too, has emphasised the importance of separating the issues of duty of care and breach of duty. In Vairy, where he was critical of the trial judge (Bell J) for having merged the two issues, he said: ‘whilst the distinction between duty and breach is most clearly understood in the context of trial by jury, preservation of the separation of the conceptually distinct issues of duty and breach is, as this appeal shows, of general importance.’[44] He also criticised the judgment of Tobias JA in the intermediate appellate court because ‘reference to a risk being “obvious” cannot be used as a concept necessarily determinative of questions of breach of duty or ... of questions of the existence and content of duty itself’.[45] However, he thought that the ‘diving cases’ did not yet constitute a well-settled area of the law, unlike manufacturer and consumer, and that it was necessary to confine the duty of care by reference to its scope or content. He criticised the defendant council, too, for having conceded that, as an authority having care, control and management of a natural area, it owed a duty of care in general terms to recreational users of the area. In his view, the content or scope of any duty of care owed by the council did not extend to exercising the function of giving warning of the dangers or of prohibiting jumping or diving.[46] He was alone among the members of the court in this case to see the issue in this way. In the end, because the council had conceded the duty issue and argued the case entirely as one of breach, he held that the appeal had to be determined on this basis.[47]

In Dederer, too, the defendant RTA had conceded that it owed the plaintiff a duty of care. The dissenting judgments of Gleeson CJ and Kirby J accordingly were concerned with determining whether the court should uphold the concurrent findings of fact in the courts below that the RTA had breached the duty of care and that the breach had caused the plaintiff’s injury. Much of Heydon J’s judgment was taken up in demonstrating that the findings of fact in the courts below were not indeed ‘concurrent’ and with a survey of the authorities on whether the High Court should overturn concurrent findings of fact. This time, however, Gummow J (with whose orders and reasons Callinan and Heydon JJ agreed) was not prepared to accept the concession that the RTA owed the plaintiff a duty of care. He insisted that the appeal to the High Court did not turn on the question of breach, on which reasonable minds might differ, but on the extent and scope of the duty of care owed by the RTA.[48] It was in this context that he referred to Brodie and its antecedents in the law of occupiers’ liability.

Neindorf v Junkovic arose under the statutory provisions in South Australia defining the standard of care for occupiers’ liability,[49] which expressly displaced the old common law of occupiers’ liability. In the courts below the statute was seen as reflecting the general law of negligence as applicable in this area since Zaluzna.[50] Callinan and Heydon JJ, too, saw it as reflecting the general law of negligence and compelling the same conclusion.[51] I turn now to describing how the common law and the statute came to reflect the general law of negligence. Of course, I can sketch only briefly the hundreds of decisions and many statutes that impinge on this area.

Occupiers’ liability

In 2005,in Thompson v Woolworths (Q’land) Pty Ltd, a unanimous judgment of the five sitting members of the High Court (not including Gummow J) clearly distinguished the original and current approaches to the law of occupiers’ liability:

There was a time when the common law sought to define with precision the duty of care owed by an occupier of land, and treated the content of the duty as variable according to categories fixed by reference to the status of entrants.[52] The common law has since rejected the approach of seeking to construct a series of special duties by reference to different categories of entrant.[53] The problems involved in the former approach included the rigidity of the classification of entrants, and the artificiality of distinguishing between the static condition of premises and activities conducted on the premises. That is not to say, however, that the law now disregards any aspect of the relationship between the parties other than that of occupier and entrant. On the contrary, other aspects of the relationship may be important, as considerations relevant to a judgment about what reasonableness requires of a defendant, a judgment usually made in the context of deciding breach of duty (negligence).[54]

Lipman v Clendinnen,[55] cited in this passage as an example of the earlier common law, was decided 56 days after Donoghue v Stevenson. In those pre-internet days, the report could not yet have reached Australia. Had it done so, Dixon J might have found in it support for his view that ‘it might be considered consonant with general principle to measure the standard of care required by determining as matter of fact what amount of care in all the actual circumstances of each particular case the reasonable man would exercise’.[56] ‘But’, he said:

English law has adopted a fixed classification of the capacities or characters in which persons enter upon premises occupied by others, and a special standard of duty has been established in reference to each class. Many of the circumstances which might have been considered in reference to the precautions required go now only to the question in what character did the sufferer come upon the premises. Apart from contractual relations ..., and the execution of an independent authority given by law ..., he who enters upon land occupied by another does so in one or other of three characters. The duty owing to him is measured or defined by reference to the category to which he belongs. He comes as a trespasser, as a licensee, or as an invitee. The separation is absolute between these three classes, which are mutually exclusive. A different duty is incurred by an occupier to each class, and these various duties are not to be confused or assimilated.[57]

A few years later, in Aiken v Kingborough Corporation, though now citing Donoghue v Stevenson, Dixon J still saw the standard of care as being determined by the category into which the plaintiff fell.[58] He reiterated the standards he had determined for licensees and invitees in Lipman, but thought them inappropriate for someone who entered public property as of right. For this category, he laid down a new standard:

the public authority in control of such premises is under an obligation to take reasonable care to prevent injury to such a person through dangers arising from the state or condition of the premises which are not apparent and are not to be avoided by the exercise of ordinary care.[59]

Brennan J continued to be attracted to this standard for entrants to public reserves, even after Zaluzna, in which he had dissented: see his judgments in Nagle v Rottnest Island Authority[60] and Romeo v Conservation Commission of the Northern Territory.[61] The other members of the court in these cases had by then moved on to applying the more general duty of care to such cases. Nagle and Romeo show that, while there may not be an established duty of care in ‘diving cases’, there is now an established category under which an authority having the control and management of land to which the public has access owes a general duty of care to those who exercise their right to be on the land. The dissenting judgment of McHugh J in Vairy demonstrates this clearly.[62]

The distinction made in the old law between invitees and licensees was not an intuitive one. The term ‘business visitor’ used in America better captured the notion of ‘invitee’. People invited to one’s house for social purposes were classified as licensees, not invitees, and were treated, as Dixon J explained in Lipman[63] and in Aiken,[64] as though a gift had been bestowed on them, for the defects in which they could generally not complain. A licensee could sue for damages in respect of injuries sustained on the land only if the defect amounted to a ‘concealed trap’.[65] In Lipman Dixon J held that a visitor to a tenant in a block of flats, even for business purposes, was a mere licensee of the occupier of the common property leading to the flat.

The words of Willes J, delivering the judgment of the Court of Common Pleas in Indermaur v Dames[66] in 1866, became the acknowledged measure of the duty of care an occupier owed to an invitee, ie one in whose presence the occupier had a commercial interest. He said:

[An invitee,] using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, which he knows or ought to know; and that, where there is evidence of neglect, the question whether such reasonable care has been taken, by notice, lighting, guarding, or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jury as matter of fact.[67]

Nearly every phrase in this statement has been treated as authoritative. In London Graving Dock Co Ltd v Horton, where the meaning of ‘unusual danger’ was in issue, members of the House of Lords, though acknowledging that the words were not embodied in a statute, regarded them as ‘carefully chosen’ and therefore to be followed almost literally.[68] The actual decision in this case was distinguished by the High Court in Commissioner for Railways (NSW) v Anderson,[69] but its unsatisfactory nature undoubtedly provided impetus for reform of the law in England. It is in this statement of Willes J that we find the phrase ‘using reasonable care on his part for his own safety’, the echoes of which are found in the joint judgment of Gaudron, McHugh and Gummow JJ in Brodie and in Gummow J’s judgment in Dederer. The warning of Windeyer J in Voli[70] that it was wrong to treat Lord Atkin’s statement in Donoghue v Stevenson as inflexibly as if it was a statutory enactment, should have been heeded in this context in respect of the statement of Willes J.

Perhaps even more unsatisfactory than the rigidity of the duties owed to licensees and invitees under the old law of occupiers’ liability was the almost non-existing duty owed to everyone who came on to land without the occupier’s permission, express or implied. Such persons, be they burglars, lost hikers or wandering children, were all lumped together in the category of trespassers. To alleviate the harshness of the consequences for these people, particularly children, the courts would sometimes invoke the concept of an ‘allurement’ to turn trespassers into licensees or find that tolerance amounted to licence. The High Court rebelled against this sort of fiction in Commissioner for Railways (NSW) v Cardy.[71] Instead, the High Court preferred the notion of concurrent duties, elevating a general duty under Donoghue v Stevenson alongside the occupier’s limited duty to a trespasser. This solution was rebuffed by the Privy Council, to which appeals still lay at the time, in Commissioner for Railways v Quinlan.[72] Sometimes that decision could be avoided by a finding that the relevant relationship was not one of occupier-trespasser, as in Munnings v Hydro-Electric Commission,[73] where a boy climbed an electricity pole and came into contact with the high-voltage wires. Eventually the House of Lords and the Privy Council adopted a less harsh standard for the occupier’s duty towards trespassers, a duty of ‘common humanity’.[74] But the application of so unfamiliar a standard obviously posed difficulties for the courts and the difficulties of categorisation continued, as shown by Public Transport Commission (NSW) v Perry,[75] where a woman waiting on the platform for a train suffered a fit and fell unconscious on to the line.

The morass into which the law had fallen cried out for reform. Law reform bodies in the United Kingdom, Australia, New Zealand and Canada devoted much time to sorting out the mess. In 1954 the Law Reform Committee in England presented a report on the topic, Occupiers’ Liability to Invitees, Licensees and Trespassers,[76] to the Lord Chancellor. This report led to the first legislation for England and Wales, the Occupiers’ Liability Act 1957 (UK), which abolished the distinction between invitees and licensees and subjected occupiers to a common duty of care to these visitors, viz a duty to take such care as in all the circumstances of the case is reasonable to see that these visitors would be reasonably safe in using the premises for the purposes for which they were invited or permitted by the occupier to be there: s 2. When legislation was enacted a few years later for Scotland, the Occupiers’ Liability (Scotland) Act 1960 (UK), trespassers too became protected in that country by the common duty of care. However, following a report from the Law Commission,[77] a somewhat different standard in relation to trespassers was later enacted for England in the Occupiers’ Liability Act 1984 (UK).[78]

Soon after the English Law Reform Committee’s report, the matter came on to the agenda of the Statute Law Revision Committee of the Victorian Parliament. That committee sought advice from the Victorian Chief Justice’s Law Reform Committee in 1956. A subcommittee was set up that had the distinction of having among its members two people who were subsequently to become Governors-General of Australia: the chair was the Dean of the Melbourne Law School, then Professor Zelman Cowen, and the Bar representative was the then Mr Ninian Stephen. During the next 26 years, several more subcommittees further considered the topic. Whatever movement occurred in the glacial pace at which the matter moved backwards and forwards between the full committee and the subcommittees often resulted only from prompting by other members of Melbourne Law School. At an early stage it was accepted that the law of occupiers’ liability was in need of reform, but there were disagreements on the form that it should take, in particular whether it should follow the English model and deal initially with lawful visitors only; or should follow the Scottish model and bring trespassers within the common duty of care and, if the latter, whether there should be any and what exclusions. In the early 1980s the Attorneys-General in two successive Victorian governments indicated to the committee that they would welcome its views on occupiers’ liability towards trespassers. Eventually, in 1982 the full committee agreed to accept a subcommittee’s report with two alternative draft bills attached and to forward the report to the government of the day without making any recommendation.[79]

In 1983, the Victorian Parliament enacted the first Occupiers’ Liability Act in Australia, which it inserted as Pt IIA of the Wrongs Act 1958 (Vic). This provides for a single, though flexible, standard of care towards all entrants, which resembles the general standard of care in negligence, in place of the rules of the common law. Western Australia in 1985 and South Australia in 1987 followed suit with their slightly different versions.[80] In 1987 the High Court decided Zaluzna on an appeal from Victoria in relation to an accident that pre-dated the legislation in that state. The Australian Law Reform Committee then took the view that legislation had become unnecessary for the Australian Capital Territory except in relation to the liability of landlords.[81] Later the ACT Community Law Reform Committee reviewed this report and agreed with its recommendations.[82] However, for reasons not obvious, the Civil Law (Wrongs) Act 2002 (ACT) now contains a provision, originally s 101, subsequently s 168, which is similar to, though not identical with, the Victorian legislation. Although these four statutes are similar, their minor differences have to be given effect in their respective jurisdictions. How far, if at all, they differ from the common law laid down in Zaluzna sometimes presents problems for the courts.[83] The problems are aggravated when the relevant Civil Liability Act also applies.[84] An advantage of having the law laid down in a decision of the High Court and not in a statute is that there is then uniformity throughout Australia, since Australia, unlike the United States,[85] has only one common law.[86]

The report of the Australian Law Reform Commission, with which the ACT Community Law Reform Committee agreed, stated:

33. Legislative reforms of the kind found in other jurisdictions do not improve the common law. No useful end would be served by enacting legislation simply to mimic what the High Court has achieved through judge-made law. Any attempt to do so would be counter-productive. The common law should remain.[87] ...
61. The law should not be changed in relation to trespassers. The best way to deal with the problems they pose is through the flexible common law of negligence, as expounded by the High Court in the Australian Safeway case. Further, there should be no special rules for criminal trespassers, nor should legislation be introduced to provide that the common law rules apply to trespassers. Existing legislative models do not improve on the common law.[88]

The ALRC did recommend statutory amendment of the law relating to the liability of landlords.[89] I now briefly review the law relating to that subject.

Landlord’s liability

A person who lets property gives up possession and is ordinarily not the occupier of the land subject to the tenancy. Twenty years before Donoghue v Stevenson, the House of Lords in Cavalier v Pope[90] approved and applied the statement in Robbins v Jones that:

A landlord who lets a house in a dangerous state is not liable to the tenants, customers, or guests for accidents happening during the term; for, fraud apart, there is no law against letting a tumble-down house; and the tenant’s remedy is upon his contract, if any.[91]

In Voli,[92] Windeyer J cited Sir Percy Winfield’s description of Cavalier v Pope as ‘[t]he misbegotten product of a fallacy’, the fallacy being that a defendant who owes a duty in contract to one person cannot be under a duty of care in tort to another. Donoghue v Stevenson was supposed to have ‘exploded’ that fallacy.[93] Windeyer J also quoted Winfield’s rhetorical question: ‘what conceivable difference is there between carelessly putting in circulation a dead snail in a bottle of ginger beer and putting on the market a house so carelessly built as to be likely to cause death or grave injury?’ His Honour answered: ‘If our law were in all respects coherent and congruous, perhaps the answer would be that there is no difference.’ At that time, he was compelled to continue:

Nevertheless, when faced with the suggestion of inconsistency between the rules relating to houses and to snails and suchlike, courts have not thought that the former should give way. Rather it has been said that they can, and appropriately do, stand together. ... in Donoghue v Stevenson itself Lord Macmillan spoke of Cavalier v Pope as being ‘in a different chapter of the law’. The landlord’s immunity thus continues unaffected by the results of the snail’s emergence.[94]

Law reform agencies did not think that the landlord’s immunity should continue unaffected by the general principle that emerged from Donoghue v Stevenson in cases where the landlord retained the power or was under the obligation to enter the property and effect repairs. Various statutory solutions were effected in the context of reforming occupiers’ liability. In the Victorian legislation, for instance, landlords who are under an obligation to their tenants to maintain or repair the premises, or are, or could have put themselves in, a position to exercise a right to enter on the premises to carry out maintenance or repairs, are subject to the same standard of care as an occupier.[95] For a time, it appeared that in jurisdictions without such legislation Cavalier v Pope might continue to govern even after Zaluzna. For this reason, in 1988 the ALRC concluded:

76. The blanket immunity provided by the rule in Cavalier v Pope should be removed (if it exists in Australia). It should be left to the courts to determine, on the facts of a particular case, whether the landlord was the injured party’s ‘neighbour’ or whether the tenant was more appropriately responsible for the particular hazard. This is consistent with the general rejection of the old categories approach to occupiers’ liability and the support for the general rules of negligence found throughout this Report. Exceptions for landlords cannot be justified.[96]

When the matter came before the High Court in Northern Sandblasting Pty Ltd v Harris,[97] an appeal from Queensland, which had no such legislation, the defendant landlord conceded that Cavalier v Pope was no longer good law, a concession that most members of the High Court said was rightly made. By a majority of four to three, the court found in favour of the nine-year-old daughter of the tenant, who had been electrocuted by a garden tap that had become live as a result of a negligent repair by an independent contractor electrician and the failure of the earthing system of the house. Unfortunately, the four judges of the majority could not agree on why the landlord was liable.[98]

Soon afterwards, the High Court gave leave to appeal in Jones v Bartlett,[99] a case from Western Australia, which did have such legislation.[100] The High Court held that the legislation was not applicable because it was limited to a landlord’s failure to comply with a duty of maintenance and repair and the plaintiff did not rely on breach of any such duty. The landlord did not seek to rely on Cavalier v Pope, conceding that some duty was owed at common law to tenants and their visitors, but denying that such duty extended to inspection of the premises before or after letting them so as to upgrade them to comply with more stringent building standards than when they were built. By a majority of six to one, the court upheld the landlord’s contention. However, the formulation of the precise content of the landlord’s duty of care varied among the different judges. In his dissent, McHugh J formulated the duty in completely general terms and suggested that ‘[t]o limit the duty to “dangerous defects”, “ordinary use of the premises” or “unusual dangers” would reintroduce into the law the categories expelled by this court in Australian Safeway Stores Pty Ltd v Zaluzna’.[101] On the other hand, Gummow and Hayne JJ, in their joint judgment, thought that a general statement in terms of the exercise of reasonable care was ‘of no utility’.[102] Their Honours stated that the content of the landlord’s duty was likely to be less stringent than that of an owner-occupier because the landlord would ordinarily have given up occupation and the ability to control what was done with and on the premises. Confining themselves to residential premises and recognising that other types of premises may differ,[103] they saw the landlord’s duty to the tenant broadly as being ‘conterminous with a requirement that the premises be reasonably fit for the purposes for which they are let, namely habitation as a domestic residence’.[104] The duty to a tenant’s visitors could be no higher. They proceeded to discuss what amounted to a ‘dangerous defect’, implying that only such a defect made the premises unsafe and therefore not reasonably fit for habitation as a domestic residence.[105] But they looked not only to the conduct of the landlord, but also to the use being made of the premises by the person to whom it is sought to impose a duty. ‘The reasonableness of the conduct engaged in by the person injured will be important.’[106] If the danger arose only because that person was making unauthorised or uncontemplated use of the premises, the defect would ordinarily not be classified as a dangerous one. They illustrated this with the example of someone who climbs trees on the property, where climbing trees is not an ordinary incident of the use of residential premises.[107] The judgments of the other members of the court did not go as far as that of Gummow and Hayne JJ in prescribing the content of the duty of care of a landlord at common law. The differences were analysed by Mason P in Sakoua v Williams[108]and by McColl JA in New South Wales Department of Housing v Hume.[109] After considering the NSW Court of Appeal cases on landlord’s liability to tenants, members of their families and visitors, her Honour concluded that in none had the views of Gummow and Hayne JJ been accepted as authoritative.[110]

Contributory negligence

The formulation by Gummow J of the duty of care both of landlords (in the joint judgment with Hayne J in Jones v Bartlett) and of road authorities (in Dederer, taken from the judgment of Gaudron, McHugh and Gummow JJ in Brodie) refers to the conduct of the plaintiff as critical in delineating the scope or content of the duty. The scope of the duty is to take care only for those exercising reasonable care for their own safety. But once one takes into account the conduct of the plaintiff when one is determining the content of the duty of care, little scope is left for the operation of the concept of contributory negligence. This is unfortunate. Denying that a defendant owes a relevant duty to a plaintiff because the plaintiff’s conduct was unreasonably careless, allows defendants to escape scrutiny of their conduct and to avoid liability for the consequences of what might otherwise be deemed to be their negligence.[111] An all-or-nothing approach to compensation, redolent of days long gone in the law of torts, may again emerge in at least some categories of negligence.[112] The courts will not be required to balance the relative carelessness of the plaintiff and defendant. Indeed, the more obvious a risk, in that a plaintiff should have taken care to avoid such risk, the less likely it is that a plaintiff will be owed a duty of care; this is so even though it may have been all the more unreasonable for a road authority or landlord to have failed to respond to that risk. It is difficult to discern why these factors are not precisely the sort of matters that courts should consider at the breach and defences stages of the tort of negligence. Indeed, if a defendant sought to establish a voluntary assumption of risk in order to escape liability in these contexts, it would be highly unlikely to be successful, even with the statutory reversal of the onus of proof in relation to ‘obvious risks’.[113]

Further, by elevating such essentially factual considerations to the status of law, in defining the scope of duty, the division of the law of negligence into distinct categories is revived. These new categories are as difficult to justify as those in the context of the old occupiers’ liability rules. Rather than categories based on the relationship between the parties, as the old occupiers’ liability rules were, the categories are instead determined by what appear to be factual considerations normally considered at the stage of defences, specifically contributory negligence (did the plaintiff disregard his or her own safety?) as well as by the status of the defendant (as road authority or landlord).

Civil Liability Acts

In Dederer itself, the plaintiff joined the local council as a defendant after he had commenced proceedings against the RTA. By the time that he did so, the Civil Liability Act 2002 (NSW) had come into force and the claim against the council, but not the RTA, was subject to this legislation. The plaintiff succeeded at first instance against both the RTA and the council.[114] On appeal,[115] the NSW Court of Appeal held that the council too was a road authority and had assumed sufficient control of the bridge from which the plaintiff dived to be under a duty of care to him. However, it upheld the council’s appeal because s 5L of the Civil Liability Act applied. That section is headed ‘No liability for harm suffered from obvious risks of dangerous recreational activities’ and the Court of Appeal held that all its requirements were satisfied. In particular, the court held that the definition of ‘obvious risk’ in s 5K applied to the dangerous recreational activity in which the plaintiff was engaged. The plaintiff appears not to have sought special leave to appeal to the High Court from this decision. In any future litigation in circumstances such as occurred in Dederer, in New South Wales the Civil Liability Act 2002 (NSW) s 5L is likely to apply, so that the plaintiff is likely to be defeated whatever the scope of the principle laid down by the High Court in relation to the common law. Furthermore, s 5G reverses the onus of proof at common law in relation to knowledge of obvious risks for the purpose of the defence of voluntary assumption of risk.[116] Other provisions of the legislation may also be applicable, such as those in Pt 5, which give special protection to public authorities. In particular, s 45, which partially restores the immunity of road authorities for non-feasance, but only where the authority does not have knowledge of the actual risk, may protect a road authority defendant.[117]

As already noted, Australia has a single common law.[118] But the legislatures have ignored the first recommendation of the Ipp Committee that there be uniform legislation throughout Australia in relation to ‘tort reform’.[119] Provisions in similar terms to that of section 5L of the NSW Civil Liability Act exist in Queensland, Tasmania and Western Australia,[120] but not in other jurisdictions. Joachim Dietrich has previously described this area as a ‘mess’.[121] The Dederer principle thus does not apply in the factual context in which it arose in the four states with those provisions, but does apply in that context to the other jurisdictions (although it is subject to the provisions that more or less correspond in each jurisdiction with the Civil Liability Act 2002 (NSW) Pt 5).

Importantly, however, the Dederer principle applies beyond plaintiffs engaged in dangerous recreational activities. It applies to protect road authorities against claims by users of roads and footpaths who are not using them for recreational purposes. It applies even where statutorily reinstated immunities for road authorities do not apply because, for example, the accident occurred outside a defined ‘highway’[122] or as a result of the authority’s positive acts or because the road authority had knowledge of the risk that eventuated.[123] It has been assumed to apply, by some courts at least, to limit the scope of the duty of statutory authorities as occupiers, subject to possible modification as a result of the occupiers’ liability legislation if applicable.[124] Its relationship to Webb v South Australia,[125] which Gummow J did not refer to, creates uncertainty for lower courts, as the Hon David Ipp shows in his article. Since Gummow J did cite Thompson v Woolworths (Q'land) Pty Ltd[126] without criticism, presumably the principle of that case must apply to occupiers generally (in the absence of legislation) in preference to the Dederer principle, but one cannot be certain.

Conclusion

Although as a result of the statutory tort law reform of the early 2000s the common law continues to operate only in some factual contexts, in piecemeal fashion, it is all the more important for that common law to be coherent. Today, we are not content, as Windeyer J was in Voli, to accept that the law may not be ‘in all respects coherent and congruous’.[127] Since Sullivan v Moody,[128] a high value has been placed on coherence in determining the existence or non-existence of a duty of care. The decision of the majority in Brodie, in abrogating the immunity of road authorities, was itself heavily influenced by the fact that the immunity was inconsistent with the general principle of Donoghue v Stevenson and Zaluzna. We should not read a loose dictum in one judgment in that case in such a way as to reintroduce the fine distinctions and discreditable niceties to which the law of occupiers’ liability was once subject. Unfortunately, that is what the courts have done.[129] Thus the Victorian Court of Appeal has held that road authorities owe a duty of care only to persons who use reasonable care for their own safety and are not required to take more care for the elderly, frail, joggers, skateboarders, drunks, etc.[130] It takes us far from what Jane Stapleton called ‘The Golden Thread at the Heart of Tort Law: Protection of the Vulnerable’.[131]

[*] General Editor. Thanks to the Associate Editor, Joachim Dietrich, for assistance in the preparation of the Comment. Responsibility for the views expressed and the accuracy of the law is mine alone.

[1] G Santayana, The Life of Reason; or, The Phases of Human Progress, C Scribner's sons, New York, 1905, vol 1, ch 12.

[2] (2007) 234 CLR 330; 238 ALR 761; 48 MVR 288; [2007] HCA 42 (Dederer) at [45]. Callinan and Heydon JJ agreed with Gummow J’s orders and reasons.

[3] (2001) 206 CLR 512; 180 ALR 145; [2001] HCA 29; BC200102755 (Brodie) at [163].

[4] (1987) 162 CLR 479; 69 ALR 615; [1987] HCA 7; BC8701761 (Zaluzna).

[5] (2000) 205 CLR 254; 176 ALR 411; [2000] HCA 61; BC200007093. For criticism of the actual decision in this case, see J Dietrich, 'Liability in Negligence for Harm Resulting from Third Parties' Criminal Acts: Modbury Triangle Shopping Centre Pty Ltd v Anzil' (2001) 9 TLJ 152 and H Luntz, 'Torts Turnaround Downunder' (2001) 1 OUCLJ 95.

[6] [1932] AC 562 at 580; [1932] All ER Rep 1; [1931] UKHL 3; 1932 SC (HL) 31.

[7] Ibid.

[8] Luke 10, 30. See R Castle, 'Lord Atkin and the Neighbour Test: Origins of the Principles of Negligence in Donoghue v Stevenson' (2003) 7 Ecc LJ 210.

[9] Compare the different view of the conduct of these people referred to by J Edelman and S Degeling, ‘The Future of the Common Law of Torts’ (2010) 33 Aust Bar Rev 45 at 50, citing G Vermes, The Authentic Gospels of Jesus, Penguin, London, 2004, pp 153-4.

[10] [1932] AC 562 at 580; [1932] All ER Rep 1; [1931] UKHL 3; 1932 SC (HL) 31.

[11] See, eg, Hargrave v Goldman [1963] HCA 56; (1963) 110 CLR 40 at 66 per Windeyer J; [1964] ALR 377; [1963] HCA 56; BC6300490; Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 at 477-8 per Brennan J; 60 ALR 1; [1985] HCA 41; BC8501096.

[12] Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549 at 579; 54 ALR 417; 1 MVR 257; [1984] HCA 52

[13] See, eg, Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 at 479 per Brennan J; 60 ALR 1; [1985] HCA 41; BC8501096 (‘There must also be either the undertaking of some task which leads another to rely on its being performed, or the ownership, occupation or use of land or chattels to found the duty’), citing Hargrave v Goldman [1963] HCA 56; (1963) 110 CLR 40 at 67; [1964] ALR 377; [1963] HCA 56; BC6300490, but adding the notion of reliance. Compare Broughton v Competitive Foods Australia Pty Ltd [2005] NSWCA 168; (2005) Aust Torts Reports 81-791; BC200503222 at [2]-[3] per Handley JA (‘legally enforceable duties on one citizen to help another [only] in special and limited circumstances where one person has the care of another’).

[14] [1932] AC 562 at 599; [1932] All ER Rep 1; [1931] UKHL 3; 1932 SC (HL) 31.

[15] [1932] AC 562.

[16] [1936] AC 85 at 106; [1935] UKPCHCA 1; [1935] All ER Rep 209; (1935) 54 CLR 49.

[17] Argument of counsel led by Wilfred Greene KC, as reported in [1936] AC 85 at 89.

[18] Grant v Australian Knitting Mills Ltd [1936] AC 85 at 106-7; [1935] UKPCHCA 1; [1935] All ER Rep 209; (1935) 54 CLR 49.

[19] [1932] 2 KB 606 (CA); [1932] All ER 339.

[20] Ibid, at KB 617 per Scrutton LJ.

[21] Ibid.

[22] [1963] HCA 15; (1963) 110 CLR 74 at 80; [1963] ALR 657; [1963] HCA 15; BC6300500 (Voli).

[23] Ibid, at CLR 86.

[24] Ibid, at CLR 87-8.

[25] [1989] 2 Qd R 477 (FC); (1989) Aust Torts Reps 80-268.

[26] Ibid, at Qd R 486-7, citing, inter alia, Australian Safeway Stores Pty Ltd v. Zaluzna (1987) 162 CLR 479 at 488; 69 ALR 615; [1987] HCA 7; BC8701761.

[27] [1932] 2 KB 606 (CA); [1932] All ER 339.

[28] (1883) 11 QBD 503 (CA); [1881-5] All ER Rep 35.

[29] See Minchillo v Ford Motor Co of Australia [1995] VicRp 78; [1995] 2 VR 594 (AD). In Zumpano v Montagnese [1997] 2 VR 525 (CA); BC9604703; [1997] Aust Torts Reps 81-406 Brooking JA adhered to his judgment in this case even after the High Court in Bryan v Maloney (1995) 182 CLR 609; 128 ALR 163; [1995] HCA 17; BC9506413 had allowed a claim for pure economic loss in the case of the purchaser of a house.

[30] Compare, however, Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 at 487 per Brennan J; 60 ALR 1; [1985] HCA 41; BC8501096 (‘a postulated duty of care must be stated in reference to the kind of damage that a plaintiff has suffered and in reference to the plaintiff or a class of which the plaintiff is a member’).

[31] (2009) 54 MVR; [2009] VSCA 227; BC200909290.

[32] See ibid, at [21] per Neave JA (dissenting), [69] per Redlich JA, with whom Williams AJA agreed. The High Court refused special leave to appeal without endorsing everything said by the majority: [2010] HCATrans 26 (12 February 2010).

[33] Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1972] EWCA Civ 3; [1973] QB 27 (CA) at 37 per Lord Denning MR; [1972] EWCA Civ 3; [1972] 3 All ER 557; [1972] 3 WLR 502; 14 KIR 75. Compare Jolley v Sutton London Borough Council [2000] UKHL 31; [2000] 3 All ER 409 at 418 per Lord Hoffmann; [2000] UKHL 31; [2000] 1 WLR 1082; [2000] 2 Lloyd’s Rep 65; [2000] 2 FCR 392 (‘unless the injury is of a description which was reasonably foreseeable, it is (according to taste) “outside the scope of the duty” or “too remote”’).

[34] (2005) 223 CLR 422; 221 ALR 711; [2005] HCA 62; BC200507887 (Vairy) at [25].

[35] (2001) 206 CLR 1; 178 ALR 634; [2001] HCA 19; BC200101436.

[36] (2005) 223 CLR 422; 221 ALR 711; [2005] HCA 62; BC200507887 at [25].

[37] (2005) 65 NSWLR 187; [2005] NSWCA 435; BC200510878; [2005] NSWCA 435; 3 DDCR 255 at [12].

[38] Ibid, at [83], referring, inter alia, to the increased costs to the community of requiring retailers, small and large, to institute systems for testing the numerous products they sell.

[39] Relying on Mahoney JA’s views, with which Meagher and Powell JJA agreed, in Laundess v Laundess (1994) 20 MVR 156; Aust Torts Reps 81-316; BC9403382.

[40] (2009) 260 ALR 606; [2009] HCA 47; 84 ALJR 1; BC200910034 (CAL).

[41] (2004) 217 CLR 469; 207 ALR 52; 40 MVR 1; [2004] HCA 29; BC200403491; [2004] HCA 29; 78 ALJR 933.

[42] Ibid, at [30]-[32].

[43] (2005) 222 ALR 631; [2005] HCA 75; [2006] Aust Torts Reports 81-820; BC200510492 at [52]-[56].

[44] (2005) 223 CLR 422; 221 ALR 711; [2005] HCA 62; BC200507887 at [64].

[45] Ibid, at [55].

[46] Compare Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; 167 ALR 1; [1999] HCA 59; BC9907273, where despite the difference of opinion as to whether the defendant was under a duty of care to protect the stevedores when it sent them to work without adequate protection against exposure to asbestos, the court was united in holding that the scope of the duty could not extend to the authority’s exercise of its quasi-legislative powers.

[47] Ibid, at [99]-[100].

[48] (2007) 234 CLR 330; 238 ALR 761; 48 MVR 288; [2007] HCA 42 at [42].

[49] Wrongs Act 1936 (SA) Pt 1B; now Civil Liability Act 1936 (SA) Pt 4.

[50] (1987) 162 CLR 479; 69 ALR 615; [1987] HCA 7; BC8701761

[51] (2005) 222 ALR 631; [2005] HCA 75; [2006] Aust Torts Reports 81-820; BC200510492 at [115]-[116]. See also n 83 below.

[52] See, for example, Lipman [1932] HCA 24; (1932) 46 CLR 550 at 554-6 per Dixon J; [1932] HCA 24.

[53] Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; 69 ALR 615; [1987] HCA 7; BC8701761.

[54] (2005) 221 CLR 234; 214 ALR 452; [2005] HCA 19; BC200502226 at [24].

[55] (1932) 46 CLR 550; [1932] HCA 24 (Lipman).

[56] Ibid, at CLR 555.

[57] Ibid.

[58] [1939] HCA 20; (1939) 62 CLR 179 at 206; [1939] ALR 393; [1939] HCA 20; BC3900013 (Aiken).

[59] Ibid, at CLR 210 (emphasis added).

[60] (1993) 177 CLR 423; 112 ALR 393; [1993] HCA 76; BC9303587 (Nagle).

[61] (1998) 192 CLR 431; 151 ALR 263; [1998] HCA 5; BC9800071 (Romeo).

[62] (2005) 223 CLR 422; 221 ALR 711; [2005] HCA 62; BC200507887 at [20]-[27]. See also Berrigan Shire Council v Ballerini (2005) 13 VR 111 (CA); [2005] VSCA 159; BC200504217, though it was there held that there was a breach by the council even if the duty was stated in the narrower terms of Aiken (see at [33]).

[63] [1932] HCA 24; (1932) 46 CLR 550 at 565; [1932] HCA 24

[64] [1939] HCA 20; (1939) 62 CLR 179 at 207-8; [1939] ALR 393; [1939] HCA 20; BC3900013.

[65] As Dixon J observed, this phrase had ‘become almost a term of art for describing the danger from which the occupier must take care to protect the licensee’: Lipman [1932] HCA 24; (1932) 46 CLR 550 at 556; [1932] HCA 24.

[66] (1866) LR 1 CP 274, affirmed (1867) 2 CP 311 (Ex Ch).

[67] (1866) LR 1 CP 274 at 288.

[68] [1951] AC 737 at 743 per Lord Porter, 751 per Lord Normand.

[69] (1961) 105 CLR 42; [1961] ALR 865; [1961] HCA 38; BC6100710.

[70] [1963] HCA 15; (1963) 110 CLR 74 at 86; [1963] ALR 657; [1963] HCA 15; BC6300500.

[71] (1960) 104 CLR 274; [1961] ALR 16; [1960] HCA 45; BC6000630.

[72] [1964] AC 1054; [1964] ALR 900; [1964] 1 All ER 897.

[73] (1971) 125 CLR 1; [1971] ALR 609; [1971] HCA 27; BC7100280. It was also distinguished in Commissioner for Railways v McDermott [1967] 1 AC 169 (PC); [1966] 2 All ER 162; [1966] ALR 897 in relation to a licensee on a level crossing.

[74] Herrington v British Railways Board [1972] UKHL 1; [1972] AC 877 (HL); [1972] 1 All ER 749; [1972] 2 WLR 537; Southern Portland Cement Ltd v Cooper [1896] ArgusLawRp 83; [1974] AC 623 (PC); [1974] 1 All ER 87; (1973) 2 ALR 113; 129 CLR 295.

[75] [1977] HCA 32; (1977) 137 CLR 107; 14 ALR 273.

[76] HMSO, London, 1954.

[77] Law Commission, Report on Liability for Damage or Injury to Trespassers and Related Questions of Occupiers’ Liability, Report No 75, HMSO, London, 1976.

[78] For some difficulties of interpretation, see, eg, Donoghue v Folkestone Properties Ltd [2003] QB 1008; [2003] 3 All ER 1101; [2003] EWCA Civ 231; [2003] 2 WLR 1138; Tomlinson v Congleton Borough Council [2004] 1 AC 46; [2003] 3 All ER 1122; [2003] UKHL 47; [2003] 3 WLR 705.

[79] Victoria, Chief Justice’s Law Reform Committee, Report on Occupiers’ Liability, 1982.

[80] See P Handford, ‘Occupiers’ Liability Reform in Western Australia — and Elsewhere’ (1987) 17 UWA L Rev 182.

[81] Australian Law Reform Commission, Occupiers’ Liability, Report No 42, Canberra, 1988.

[82] ACT Community Law Reform Committee, Occupiers Liability, Report No 2, The Committee, Canberra, 1991.

[83] See, eg, Homestyle Pty Ltd v Perrozzi (2007) 33 WAR 209 (CA); [2007] WASCA 16; BC200700122. Compare Gosling v Lorne Foreshore Committee of Management Inc [2009] VSCA 228; (2009) Aust Torts Reports 82-034; BC200909144, where the parties made no distinction between the duty under the common law and that under the occupiers’ liability provisions of the Wrongs Act 1958 (Vic): see at [4]. Nor did they refer to other provisions of the Wrongs Act, such as s 48, which was retrospectively in force at the time of the accident, unless proceedings had already been commenced at the date the amending legislation came into force: see s 66. In seeking leave to appeal to the High Court the defendant sought to argue that the risk was obvious to the 18-year-old deceased and the Dederer principle should have been applied. In refusing leave, Hayne J said the case merely applied the facts to well established principles and created no precedent: [2010] HCATrans 114 (23 April 2010).

[84] See Department of Housing & Works v Smith [No 2] [2010] WASCA 25; (2010) 265 ALR 490; BC201000650.

[85] Compare the article by A Bernstein, ‘Teaching torts: Rivalry as pedagogy’, elsewhere in this issue of the TLJ, text at n 18, referring to Rowland v Christian 69 Cal 2d 108; 443 P 2d 561; 70 Cal Rptr 97 (1968), where the Supreme Court of California abolished the distinctions between invitees, licensees and trespassers, but which has been followed in only some of the states.

[86] John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; 172 ALR 625; [2000] HCA 36; BC200003351 at [15]. The same will apply where there is a decision in one state, which other states are obliged to follow unless convinced that it is wrong: CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 260 ALR 606; [2009] HCA 47; BC200910034 at [49]-[51].

[87] Australia, Law Reform Commission, Occupiers’ Liability, Report No 42, Canberra, 1988, p 18.

[88] Ibid, p 31.

[89] Ibid, ch 5.

[90] [1906] UKHL 1; [1906] AC 428.

[91] (1863) 9 LT 523.

[92] [1963] HCA 15; (1963) 110 CLR 74 at 90–1; [1963] ALR 657; [1963] HCA 15; BC6300500.

[93] Candler v Crane Christmas & Co [1951] 2 KB 164 at 177 (CA) per Denning LJ; [1951] 1 All ER 426; [1951] 1 TLR 371.

[94] [1963] HCA 15; (1963) 110 CLR 74 at 90; [1963] ALR 657; [1963] HCA 15; BC6300500.

[95] Wrongs Act 1958 (Vic) s 14A(a).

[96] ALRC, above n 87, p 37 (footnote omitted).

[97] (1997) 188 CLR 313; 146 ALR 572; [1997] HCA 39; BC9703568.

[98] See G Orr, ‘The Glorious Uncertainty of the Common Law? Northern Sandblasting Pty Ltd v Harris’ (1997) 5 TLJ 208.

[99] (2000) 205 CLR 166; 176 ALR 137; [2000] HCA 56; BC200006926.

[100] Occupiers’ Liability Act 1985 (WA) s 9.

[101] Jones v Bartlett (2000) 205 CLR 166; 176 ALR 137; [2000] HCA 56; BC200006926 at [100].

[102] Ibid, at [167].

[103] Ibid, at [169].

[104] Ibid, at [171].

[105] Ibid, at [173]-[179].

[106] Ibid, at [179].

[107] Ibid.

[108] (2005) 64 NSWLR 588 (CA); [2005] NSWCA 405; BC200510041.

[109] [2007] NSWCA 69; (2007) Aust Torts Reports 81-879; BC200702050 at [56]-[65].

[110] Ibid, at [87].

[111] Compare the paper by B McDonald, ‘Teaching torts: where to start in an age of statutes?’ elsewhere in this issue of the TLJ, in the text immediately before her conclusion.

[112] See J Dietrich, ‘The Decline of Contributory Negligence and Apportionment: Choosing the Black or White of All-or-Nothing over the Many Shades of Grey?’ (2003) 11 TLJ 51.

[113] See, eg, Civil Liability Act 2002 (NSW) s 5G. See J Keeler, 'Personal Responsibility and the Reforms Recommended by the Ipp Report: "Time Future Contained in Time Past"' (2006) 14 TLJ 48 at 69-72; Carey v Lake Macquarie City Council [2007] NSWCA 4; (2007) Aust Torts Reports 81-874; BC200700478 at [70]-[109] per McClellan CJ at CL.

[114] Dederer v Roads and Traffic Authority [2005] NSWSC 185; (2005) Aust Torts Reports 81-792; BC200501625.

[115] Great Lakes Shire Council v Dederer; Roads & Traffic Authority of NSW v Dederer [2006] NSWCA 101; (2006) Aust Torts Reports 81-860; BC200607907.

[116] Compare n 112 above.

[117] For the requirements of this section, see, eg, Colavon Pty Ltd trading as Thormans Transport v Bellingen Shire Council (2008) 51 MVR 549; [2008] NSWCA 355; BC200811312.

[118] See above n 86.

[119] Commonwealth of Australia, Review of the Law of Negligence: Final Report, Canberra, 2002, para 2.1.

[120] Civil Liability Act 2003 (Qld) s 19; Civil Liability Act 2002 (Tas) s 20; Civil Liability Act 2002 (WA) s 5H.

[121] J Dietrich, ‘Liability for Personal Injuries Arising from Recreational Services: The Interaction of Contract, Tort, State Legislation and the Trade Practices Act and the Resultant Mess’ (2003) 11 TLJ 244.

[122] Central Goldfields Shire v Haley [2009] VSCA 101; (2009) 167 LGERA 268; BC200905418.

[123] Eg, Civil Liability Act 2002 (NSW) s 45.

[124] Central Goldfields Shire v Haley [2009] VSCA 101; (2009) 167 LGERA 268; BC200905418 at [81]-[103] per Redlich JA.

[125] (1982) 43 ALR 465; 56 ALJR 912; BC8200123.

[126] (2005) 221 CLR 234; 214 ALR 452; [2005] HCA 19; BC200502226. See the text at n 54, above.

[127] See above n 94.

[128] (2001) 207 CLR 562; 183 ALR 404; [2001] HCA 59; BC200106147.

[129] See C Coventry, ‘You Had Better Watch Out: Liability of Public Authorities for Obvious Hazards in Footpaths’ (2006) 14 TLJ 81.

[130] Boroondara City Council v Cattanach (2004) 10 VR 109 (CA); [2004] VSCA 139; BC200405355; Greater Shepparton City Council v Davis [2004] VSCA 140; BC200405332; Moyne Shire Council v Pearce [2004] VSCA 246; (2004) 136 LGERA 434; BC200408948.

[131] (2003) 24 Aust Bar Rev 135.