Case
Comment
In Establishing a Landlord's Duty of Care the impact of three cases on the law of negligence and occupiers' liability was examined. The cases established that a duty of care is owed by the landlord to take reasonable steps to prevent reasonably foreseeable injuries to his/her tenants, members of the tenant's family and third parties. However, several recent cases, including Woods v Multi-Sport Holdings Pty Ltd discussed below, have examined the particular issue of what steps an occupier should be required to take to guard against obvious risks.
Facts
Michael Woods suffered serious injury to his right eye when a ball deflected off his bat during his second-ever game of indoor cricket. Woods brought an action in negligence against the owner/operator, Multi-Sport Holdings Pty Ltd, alleging that it had breached its duty to players by failing to provide protective helmets and failing to warn of the specific risk of eye injury. The existence of a duty of care was not in dispute in the High Court; the trial judge had established that the owner/operator had a duty under the Occupiers' Liability Act 1985 (WA) and also a wider duty to "take reasonable steps to avoid the risk of injury to players arising from the dangers involved in playing indoor cricket". The central issue before the High Court was to determine the content of the duty and, specifically, what steps the respondent ought reasonably to have taken.
Case
A majority of the High Court (three to two) upheld the decision of the District Court of Western Australia (with which the Court of Appeal had agreed) that the operator of the indoor cricket facility had not breached its duty of care in failing to provide helmets or warn of the dangers of indoor cricket.
Majority
The majority (Chief Justice Gleeson and Justices Hayne and Callinan) relied on the fact that helmets had never been accepted as part of the protective equipment for indoor cricket, as some aspects of the game made them unsuitable and, in some circumstances, dangerous. Neither the trial judge, the Full Court nor the High Court found that the practice of playing indoor cricket without a helmet involved an unreasonable disregard for safety on anybody's part
In relation to the failure to erect signs warning of the dangers of indoor cricket, Gleeson stated: "What reasonableness requires by way of warning from an occupier to an entrant is a question of fact, not law, and depends on all circumstances, of which the obviousness of a risk may be only one." He concluded that the trial judge had not erred in deeming that the risk was so obvious that it would be unreasonable to hold that that the occupier must warn the entrant.
Minority
The minority (Justices McHugh and Kirby) separately relied on information regarding the high risk of eye injuries to indoor cricketers and the success in reducing such rates in other sports (eg, ice hockey and lacrosse) by introducing helmets. They also relied on expert evidence that rejected the contention that the wearing of helmets was liable to cause injuries to other players.
Kirby rejected the notion that the occupier was relieved of the duty to warn because of the obvious nature of the danger. He asserted that:
"warnings are sometimes required by those in control of situations to alert those who are inattentive, distracted or unlikely in the circumstances to consider the risk, although objectively, and with hindsight, it is 'obvious'."
Kirby deemed that the risks were such that a commercial risk taker, acting reasonably, owed it to its customers to bring them to their notice.
Comment
The Wood Case should be read in the context of what many commentators are calling a crisis in the Australian insurance industry, due in part to the collapse of a major insurer, the events of September 11 2001 and soaring pay-outs in negligence cases. There have been many calls for reforms to the law of negligence in order to reduce public liability insurance premiums, which have risen by about 30% since September 11 2001. Indeed, the Report to the Insurance Issues Working Group of Heads of Treasuries recommended the creation of an expert panel to review the law of negligence.
The approach taken in recent cases suggests that the long-term trend of expanding liability and damages in negligence cases has been decisively stopped and reversed. It has been suggested that community expectations demand that owners and occupiers are entitled to assume that most entrants will take reasonable care for their own safety. There is likely to be an introduction of measures (eg, strengthening waiver clauses) in a further move towards making people engaged in obviously dangerous activities take more responsibility for their actions.
For further information on this topic please contact Katerina Petrogiannakis or Toby Mittelman at Arnold Bloch Leibler by telephone (+61 3 9229 9779) or by fax (+61 3 9229 9889) or by email ([email protected] or [email protected]).