The duty of care is a situation where a person needs to act similar to a reasonable person in respect to others. The given case for this report is Jones v Bartlett , which is a significant case in the area of Occupier’s Liability. The report stated hereunder consists of the facts, decision, and rationale behind the decision of the case hereunder. Further, at the end of this report, a critical review of the decision given by the high court, in this case, is also mentioned.
In the given case, the claimant, of the case of Marc Jones, was the son of the tenant of a residential property. He was living in that property with his parents for the last 4 months. The plaintiff of the case walked through the glass door, which was there to separate the games room from dining room. He thought that the gate was open and he could not see the actual condition. As soon as he shattered with the glass door, he suffered from a physical injury in his right leg. The plaintiff initiated an action against the owner of the property (Landlord) in the district court of Western for the damages he suffered cause of the injury sustained to him. During the course of subjective action, plaintiff made following allegations on property owner:-
The district court (trial court), heard the proceedings of the case and given it is a decision in the favor of the plaintiff. The net award given by the court was $37500, which represented a half amount of actual damages worth $75000. Court has reduced the amount of damages by 50 percent because of contributory negligence of the plaintiff. Defendant of the case i.e. property owner was not satisfied with the decision of the trial court and then he filed an appeal against the decision of trial court in the full court of the Supreme Court. In his appeal, he has stated that he is not liable to pay any kind of damages to the plaintiff as he has performed his duty of care in the best manner and it was not his liability to examine the condition of premises on a regular basis. At the time of renting out the property, everything was fine. In addition to this, he has also claimed that he could not foresee the risk.
In the course to provide decision of the case, the full court set aside the order of the commissioner. Further, this court also dismissed the cross-appeal against the existence of contributory negligence. Disagreed with the decision of the full court, Marc Jones appealed to the high court for the revision of the decision of earlier courts and to seek remedies.
The final decision of the case has been provided by the High Court. In it is finding this court found that the lease deed between plaintiff and defendant has been ended on 06th November 1993 whereas plaintiff suffered from injury as on 27 November 1993 as plaintiff was living there even after the expiry of lease deed. The subjective door was there to separate the dining room from the games room. The door was made of very thin glass. In giving the final decision of the case, High Court held that the application of contributory negligence was truly baseless, as the same cannot be applied in the case. This court held there is no question of contributory negligence as the sole cause behind accident and injury was the careless nature of the plaintiff. He might be sure that the gate is not opened and looking like the same only.
In the decision of the case, Gummow and Hayne JJ held that the landlord only had a duty to repair the defects which could be foreseen and no such defect was there in actual. Further, they stated that a property owner of a building has no liability to examine the defects on the regular intervals. He/she is liable to check such defect at the time of renting out his/her property. In this case, the respondent could not foresee the risk of glass. It was the responsibility of the plaintiff to check that whether the door is open or not and the respondent has not breached any duty of care.
High Court rejected the appeal made by Mark Jones in the case. While providing the decision, judges reviewed the provision of Occupiers’ Liability Act 1985. It has been reviewed that the glass used in the door was 4mm thickness. The standard of the act has changed in the year 1989. The defendant was not required to change the glass of the door in a normal situation. However, in case of any change for other reason, the new glass might be of 10 mm thickness.
High court revised the findings of Commissioner Reynolds, according to which defendant of the case holds a duty of care under Tort Law and he acted negligently. In the revision of the findings of this commissioner, Murray J stated that setting aside the findings of the commissioner, this is important to know that there was no relationship between the glass and the door. A person could not foresee the risk. The door was positioned as it could be seen by any person closed or opened clearly. Further, the other basis of the decision granted by the high court was that at the time of entering into lease deed, both of the parties inspected and examined the condition of the premises and found no reason to replace the glass of the door. Mr. Fryer who was an independent examiner in the case and called by the court has also stated that it is not general to examine a residential property by an independent examiner and people often not do so.
The high court held that the property owner did nothing wrong by arranging an examination of the property by his in-house agent as it was not required to be done by an independent examiner. If the same would have been done, then also the issue could not be enlightened because the door was there for 30 years and not been held dangerous for anyone.
The judges held that the decision of the case may differ in those cases where occupier’s liability involves, according to the parties in the case. In such a situation the liability and relationship between the property owner and the tenant will be more strict in comparison to the liability arises out of the relationship between the property owner and a third party.
The decision given in this case was very significant, as the same has been used as legal precedent in many of the further cases. As the question of the case was to check the existence of a duty of care towards the tenant, this is also an important case in the area of Tort Law.
Three courts were involved in the case and all of them provided their different observations and decision in the case. The ultimate and final decision of the case has provided by the High court. Gummow and Hayne JJ stated that the risk was not at all foreseeable and therefore the property owner cannot be held liable in the case.
The decision of the case seems to be correct and positive. Here the property owner placed the glass in the door, which was of 4 mm thickness. This kind of glass was a standard of the time when the same has placed in the door. Later on, the standards have been revised under Occupiers’ Liability Act 1985. According to the provisions of the act, the buildings developed after such amendments in the standards needed to comply with the amended standards. The revised standards were not applicable to the existed properties. Further, according to the provisions of Occupiers’ Liability Act 1985, the existed properties needed to be complied with amended standards in case of any changes but not in normal circumstance. As the property involved in the case did not require, any changes, therefore, the owner was not liable to apply the latest standards on to the same.
Court has called an independent examiner Mr. Fryer to reach up to a final decision. This examiner examined the whole situation and stated that the glass must be of 10 mm thickness according to the revised standards but the same was of 4 mm thickness. He further stated that it was all right, as the door was there for 30 years. He also stated that at the time of renting out the property if an independent examiner would examine the property, he would not be in condition to foresee the risk associated with the door. Court held that in actual there was no risk associated with the door, which seems to be true. The nature of the accident was not at all foreseeable. In the past 30 years, no such case has been reported and for this reason, the property owner has no believed that such kind of case could be there.
Although in the full court of Supreme Court, the commissioner Reynolds stated that property owner owed a duty of care. It was his liability to act as a reasonable person and to provide a better safeguard to tenants. He also said that the owner of the property acted negligently while handing over the possession to tenants. He must arrange an examination of the property from an independent examiner rather than his own agent. As Mr. Fryer stated that in the case of residential property, the examination by an independent examiner is a very unusual and if done so, then also the risk could not be foreseen. The comments and findings of Commissioner Reynolds do not seem to be correct here. The property owner could not be held liable only because he owed a duty of care. In fact, the scope of his duty was very limited. He acted as a reasonable person as he made an examination of the property before giving possession of the same to Tenant. No defect was there which he could fix. The property was in good condition. The owner of the property did not perform any negligent act. The door was in good condition and the tenant was on a mistake. The decision given in the case of Caparo Industries PLC v Dickman is an important one to decide that in which circumstances a person owes a duty of care. According to the decision of this case, a duty of care exists in these cases where the defendant could foresee the risk. Further, there must be a relationship of proximity between the defendant and the claimant. In the studied case, applying the provisions of the case of Caparo Industries PLC v Dickman, it can be stated that the property owner could not foresee the risk. The glass door was undamaged and there was no need to change the same only because of amendments to standards.
Section 5 of the Occupiers’ Liability Act 1985 demands an occupier of the property to provide a safeguard to tenants but in this case, the property owner already arranged an examination of the property and also performed his other duties. The property owner was not on fault and was an innocent party in the case. The decision given by the High court was correct because it would be unfair to grant a decision in against of an innocent party.
Occupiers’ Liability Act 1985 (WA)
John Murphy and Christian Witting, Street on Torts (OUP Oxford, 2012)
Nicholas J McBride and Roderick Bagshaw, Tort Law (Pearson UK,, 2018).
Caparo Industries PLC v Dickman [1990] UKHL 2
Jones v Bartlett (2000) 205 CLR 166
Austlii, Occupiers’ Liability Act 1985 – Sect 5 (2018) < https://classic.austlii.edu.au/au/legis/wa/consol_act/ola1985211/s5.html>.
Find Law, Negligence and the ‘Reasonable Person’ (2018) < https://injury.findlaw.com/accident-injury-law/standards-of-care-and-the-reasonable-person.html>.
Gavin Creighton, Occupiers’ liability: the landlord, the owners corporation, the criminal and the entrant (216 February 2015) < https://www.cbp.com.au/insights/insights/2015/february/occupiers-liability-the-landlord,-the-owners-cor>.
Mccabe Curwood, “Landlords liability – duty of care owed by a landlord to a tenant” : Estate of the Late JJ Virgona by its Executors -v- De Lautour [2007] NSWCA 282 (16 October 2007) <https://mccabecurwood.com.au/landlords-liability-duty-of-care-owed-by-a-landlord-to-a-tenant-estate-of-the-late-jj-virgona-by-its-executors-v-de-lautour-2007-nswca-282/>.
Pat O’Shea, Jones v Bartlett: When do I need to comply with evolving building standards to discharge my duty to a plaintiff? (26 September 2016) < https://www.holmanwebb.com.au/blog/jones-v-bartlett-when-do-i-need-to-comply-with-evolving-building-standards-to-discharge-my-duty-to-a-plaintiff>.
Tina Cockburn, Duty of Care of Landlords of Residential Premises (2018) < https://www.austlii.edu.au/au/journals/UTasLawRw/2001/8.pdf>.
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