Baker v Lock - [2018] WADC 48

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   BAKER -v- LOCK [2018] WADC 48
CORAM:   JUDGE QUAIL
HEARD:   3-5 APRIL 2018
DELIVERED          :   19 APRIL 2018
FILE NO/S:   CIV 2533 of 2014
BETWEEN:   JESSE JOHN POUROTO BAKER
Plaintiff
AND
WILLIAM ROBERT LOCK
LYNETTE KAYE LOCK
First Defendants
ROBERT LOCK
JO-ANNE LOCK
Second Defendants

Catchwords:

Torts - Occupiers' liability - Negligence - Explosion at residential premises - Liability of landlord - Turns on own facts

Legislation:

Civil Liability Act 2002 (WA)
Occupiers' Liability Act 1985 (WA)

Result:

Plaintiff's claim against first defendants dismissed

Representation:

Counsel:

Plaintiff	:	In person
First Defendants	:	Mr A Hershowitz
Second Defendants	:	No appearance

Solicitors:

Plaintiff	:	Not applicable
First Defendants	:	SRB Legal
Second Defendants	:	Not applicable

Case(s) referred to in decision(s):

Department of Housing and Works v Smith (No 2) [2010] WASCA 25; (2009) 41 WAR 217
Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317
Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166
Lewis v Bell (1985) 1 NSWLR 731
Phillis v Daly (1988) 15 NSWLR 65
Radaich v Smith [1959] HCA 45; (1959) 101 CLR 209
Shine v Williams [2007] WASCA 194

JUDGE QUAIL:

Introduction

On 26 October 2013 the plaintiff, Mr Jesse Baker (Mr Baker) visited Mr Robert Lock (Robert) at 49 McAllister Way, Beechboro (the premises) to discuss and pay for repairs that Robert had agreed to make to Mr Baker's motorcycle. Whilst the two men and another man, Mr Jamie Miles (Mr Miles), were seated in a rear shed at the premises, Robert lit a cigarette lighter proximate to an open paint thinners tin or drum and there was an immediate explosion and consequent fire which consumed the shed. All three men suffered burns.
Mr Baker now sues the first defendants, William and Lynette Lock (Mr and Mrs Lock), as owners of the premises who owed him an occupier's duty of care, breached that duty and caused his injuries. The matter was listed and heard as a trial on liability alone. No evidence was led concerning damages.
Default judgment has already been entered against the first‑named second defendant, Robert Lock. The second‑named second defendant, Jo-Anne Lock (Ms Lock), has not been served with the writ. The second defendants are the children of Mr and Mrs Lock and lived at the premises at the time of the explosion.
Mr and Mrs Lock denied all of Mr Baker's statement of claim in their defence except that they were the owners of the premises, which they admitted. By the conclusion of the trial before me, the position of Mr and Mrs Lock had changed and the facts related above are not contentious. Nevertheless, I will determine all of the matters relating to liability which arise on the pleadings.

The issues for determination

1.Was Mr Baker injured in the explosion and fire at the premises on 26 October 2013?
2.Did Mr and Mrs Lock occupy the premises or were they landlords at the relevant time?
3.If Mr and Mrs Lock were occupiers or landlords, what, if any, was the statutory duty of care they owed to Mr Baker?
4.Was there any other common law duty of care they owed to Mr Baker?
5.If they owed a duty of care to Mr Baker did Mr and Mrs Lock breach the required standard of care? What precautions should they reasonably have taken against the foreseeable risk of injury?
6.Did any breach of duty by Mr and Mrs Lock cause the explosion, fire and injury to Mr Baker (was their fault a necessary condition of the harm)? If so, is it appropriate for the scope of their liability to extend to the injury to Mr Baker?

Was Mr Baker injured in the explosion and fire at the premises on 26 October 2013?

As I have said, on the pleadings Mr and Mrs Lock denied that Mr Baker was injured in the explosion and fire at the premises. In closing submissions counsel for Mr and Mrs Lock properly conceded that I could find that the Mr Baker was so injured (ts 152). Following are my findings as to how that calamity occurred.
The evidence about what happened on 26 October 2013 came from Mr Baker and the witness that he called, Mr Miles. Mr and Mrs Lock were not present on the day and no other witness gave evidence about the event. I also have a police incident report detailing some relevant investigative conclusions about the cause of the fire (exhibit 2) and a medical report summarising Mr Baker's injuries (exhibit 3), both of which were admitted by consent.
I found both Mr Baker and Mr Miles to be credible and mostly reliable witnesses. They both gave their evidence in a considered and careful way. Unsurprisingly, both have only hazy recollections of what occurred after the explosion. Both of them had consumed a few beers during the course of the afternoon before the explosion and also had some vodka jelly shots. Mr Miles may have had a few but Mr Baker only had one vodka jelly. Both I find were sober and Mr Baker sober enough to drive home, which was his intention before the explosion. I do not think their memories of the day and their behaviour on the day were affected by consumption of alcohol.
Insofar as there were some differences between Mr Baker and Mr Miles' recollection of the events leading up to the explosion they are in my view relatively minor and as would be expected between witnesses to any event, let alone a traumatic one as this was.
I make the following findings of fact in determining the issue of whether Mr Baker was injured in the explosion. I am satisfied on the balance of probabilities in relation to all of these findings.
Mr Baker and Mr Miles were friends and work colleagues. Mr Miles was also a friend of Robert and recommended him to Mr Baker as someone who could fix his motorcycle. Mr Baker took his motorcycle to the premises about one or two weeks before 26 October for repairs (ts 55). On 26 October he went again to check whether the repairs had been done and was accompanied by Mr Miles. They arrived there at some point in the early afternoon intending to pay some money for the repairs. As it transpired, Robert had not commenced work on the motorcycle and all three of them then discussed what repairs might be made, what parts were required and did some searching on eBay for necessary parts. Robert was not paid any money by Mr Baker as he had not performed any work or bought any parts. At the time the two came to the premises there was a barbeque underway for Ms Lock's birthday. She and Robert lived at the premises together with her son, Seth (ts 136). After the barbeque, by which time it was later in the afternoon, Mr Baker, Mr Miles and Robert were in an asbestos shed at the rear corner of the property, the remains of which are shown in the photographs comprising exhibit 1. The shed was 20 feet x 18 feet x 8 feet high (ts 135 - 136) constructed with a metal and timber frame and with a concrete floor. The shed had two large opening doors at the front, workshop benches at the back and sides and couches for seating. There were tools in the shed and materials related to the repair and spray painting of motor vehicles, including spray equipment.
When both Mr Baker and Mr Miles entered the shed they each noticed what they believed to be cans of paint and thinners in the shed. Mr Baker saw a vehicle in a state of prime (painted with undercoat). He observed that there were flammable goods in the shed and what he assumed was a 20 litre thinners drum (ts 58). Mr Baker believed that the cans of thinners and paint or petrol that he saw were flammable and knew they were a potential hazard. He expected to see visible warning signs but there were none on display (ts 65). There was no fire extinguishing equipment present which concerned him (ts 66). He did not have any immediate concern about the drums and tins that he could see because they appeared to be sealed to him.
Mr Miles also noticed a thinners drum when he was in the shed and recognised it because he had some experience with cars and their repair (ts 105, 114). He believed the thinners would be used by Robert for cleaning and spray painting vehicles.
Mr Baker, Mr Miles and Robert were in the shed socialising along with a fourth person, Mr Jamie Allport. It is not entirely clear on the evidence but Mr Allport must have left the shed and was not in it at the time of the explosion which subsequently occurred.
Mr Baker and Mr Miles were sitting on a couch in the shed and Robert was either on the couch or sitting next to the couch. He then dragged a thinners drum across to in front of where he was sitting. I am unable to determine whether it was a 20 litre drum as Mr Baker thought it was or a larger drum of about 60 litres as Mr Miles thought it was. Mr Baker believed it to be a newer looking tin (ts 78) and Mr Miles, although he did not particularly turn his mind to whether it was old or new, said it could have been new (ts 115). It matters not who is right although I think it more likely it was a larger 60 litre drum because it had a flat surface on the top big enough to use as a table or possibly a seat. Mr Miles who has, as he said, some experience with such items, said it was larger than one that you would get at Bunnings, more like one that would be provided by a commercial supplier (ts 114).
I am satisfied that the small screw top lid of the drum was off, both Mr Baker and Mr Miles noticed that fact and it was likely empty or close to being empty based upon the description they both gave of how Robert moved it across in front of him, close to where the three men were sitting. Mr Miles said that if the drum was full it would not have been able to be moved across the floor in the way that it was (ts 105 ‑ 106).
Although there is no direct evidence I can safely conclude that the thinners drum was used by Robert on the premises in activities to do with painting and repairing vehicles and cleaning associated items. The drum which was close to being empty was left in an open state by someone. Paint thinners, as is commonly known, vaporises quickly and gives off a powerful, pervasive and intoxicating smell which would have made it unpleasant to work in the shed if the open drum was nearby. Most people would close the container immediately after use for health and safety reasons but also to conserve the solvent (because of its rapid evaporation). I would also expect that if someone had been smoking or using power tools or had otherwise introduced an ignition source to the shed in proximity to the open drum in the days or week preceding the explosion it would have ignited then. I do not think an open and almost empty drum could have been sitting in the shed for months unnoticed. I am unable to say how full the drum was or how long the contents may have taken to evaporate but for all of the above reasons I find the drum was left in an open state in the shed for a period of probably a day or two, at most a few weeks preceding the explosion.
Shortly after moving the drum across to where the three men were sitting, Robert lit a cigarette lighter in close proximity to the open top of the drum. It matters not whether he was lighting a cigarette as Mr Baker recalls, or fidgeting with the lighter as Mr Miles recalls, but what happened immediately after he lit the lighter is that vapour, which was coming from the open drum exploded.
As Mr Miles said, in response to a question about why he did not tell Robert to stop or not do it,
I – no, I didn't. I – I just look at he's a mechanic, he's a grown man, I didn't think he would – do you mean, like I didn't think of it as ‑ ‑ ‑ (ts 112).
Mr Miles knew that it was definitely a dangerous thing to flick a lighter on top of an open tin of thinners (ts 112).
Mr Baker said that Robert was responsible for the explosion and that he made a silly and serious error of judgment (ts 81). He said that the only person who could have stopped Robert Lock from doing what he did was Robert Lock (ts 81). Most unfortunately, it seems Robert did not have the common sense and knowledge which both Mr Baker and Mr Miles had.
As an immediate consequence of the explosion Mr Baker was thrown further into the shed, a distance of some metres although, given the size of the shed, not the 5 m estimated by him (ts 60). Robert and Mr Miles were thrown out of the shed by the force of the explosion.
The subsequent police investigation established that the explosion occurred as a result of the lighting of a lighter near a can of flammable liquid. A Fire and Emergency Services investigation determined that the fire was 'a low level vapour fire' (exhibit 2).
After being thrown towards the back of the shed Mr Baker was knocked unconscious but I am unable to say whether this was for only a brief period of time or longer. Certainly when he came to he was surrounded by fire and had to run through the flames which were consuming the shed in order to get out. Neighbours tipped water on him and an ambulance came and he was taken to hospital (ts 61 - 62).
Exhibit 3, a medical report from Dr Yin Wee dated 19 July 2016, confirms that Mr Baker was admitted to Royal Perth Hospital on 26 October 2013 having sustained burns to 33.5% of his total body surface area. After treatment he was discharged from hospital on 4 December 2013. When he was examined on 26 February 2015, some 448 days after the injury, he had scars to his left and right hands, arms, legs and feet. Mr Baker's evidence was that the burns were on those parts of his body which were not protected by clothing. The left hand side of his face which faced towards the explosion was also burnt (ts 63). In hospital he was treated for infection and also had skin grafts to treat the burns (ts 62 - 63).

Conclusion on injury

I am satisfied that Mr Baker suffered serious burns as a direct consequence of the explosion and fire caused by Robert lighting a cigarette lighter which ignited vapour from an open thinners drum in the rear shed of the premises on the afternoon of 26 October 2013.

Were Mr and Mrs Lock occupiers or landlords of the premises?

To determine this issue I need to make further findings of fact in relation to Mr and Mrs Lock's association with the premises.
Mr Baker believed that the premises were occupied by Robert who was at the premises on both occasions that he was there. He believed the premises were owned by Robert's father, known as 'Buddha', based upon what Mr Miles had told him. He believed at the time the motorcycle was dropped off and also on 26 October 2013 that the property was under the control of Robert (ts 69). He never saw Mr or Mrs Lock at the property (ts 68).
Mr Baker adduced no other evidence of occupation of the premises by Mr and Mrs Lock. In determining the issue though I need to have regard to all of the evidence including that of Mr Lock. Mrs Lock was not called to give evidence. I draw no conclusion against the first defendants from the failure to call Mrs Lock.
I found Mr Lock to be a believable and generally reliable witness in the answers he gave to questions about his ownership and association with the premises. One aspect of his evidence in relation to discussions he had with Mr Baker when he was in hospital recovering from his injuries I am not prepared to fully accept but I will deal with that issue later in my reasons. Mr Lock's evidence in relation to occupation was not as detailed as I might have liked but the defendant bears no burden of proof and unfortunately Mr Baker, who represented himself, did not ask any questions of Mr Lock concerning his alleged occupation of the property (ts 141 - 146).
I am satisfied on all of the evidence that Mr and Mrs Lock bought the premises approximately 24 years ago but as at October 2013 neither of them lived there. They were living in a house which they had purchased in Derby and had been there for between three and four years (ts 136). Before Mr and Mrs Lock settled in Derby they had intended to travel around Australia in a caravan. At the time they left Perth there was only a small mortgage on the premises and they agreed with their son Robert and daughter Ms Lock that they would stay in the premises and pay the minimal amount of mortgage by way of board or rent and that they would also pay gas and electricity bills, half each (ts 142 ‑ 143). Robert for his part was paying between $200 and $300 per month (ts 139), but part of that amount was repayment of a debt owed by Robert to Mr Lock and had nothing to do with either board or rent (ts 139, 143). Mr and Mrs Lock left the contents of their house and Robert, Ms Lock and Seth then lived in the house from that time to the date of the explosion. Mr and Mrs Lock continued to be responsible for repairs and maintenance to the premises either by way of Mr Lock completing repairs himself when he was in Perth or paying somebody to do the work (ts 145). No written lease or other agreement was prepared. The agreement was a verbal arrangement between family members (ts 145).
Mr and Mrs Lock in October of 2013 were not living at the property and had no say in who visited the property (ts 139). Mr Lock visited the property two or three times per year maximum in the years leading up to October 2013 and had not been to the premises for approximately three months prior to the explosion (ts 139). Because his children were living there he did not see any need to conduct regular inspections (ts 140). On the day of the explosion Mr Lock was travelling between Broome and Sandfire and Mrs Lock was in Derby (ts 140). Mr and Mrs Lock continued to be responsible for payment of water, rates and insurance on the property (ts 142).

Application of the Occupiers' Liability Act 1985 (WA)

Section 2 of the Occupiers' Liability Act 1985 (WA) (OLA) provides that an 'occupier of premises' is a 'person occupying or having control of land or other premises'. The long title of the OLA is 'An Act prescribing the standard of care owed by occupiers and landlords of premises to persons and property on the premises'. Section 5 deals with the duty of care of an occupier and s 9 the duty of care of landlords.
In Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 Gleeson CJ said [45]:
Whilst it is true that more than one person may be in occupation of premises at any given time, ordinarily, when premises are subject to a lease, during the term of the lease, by virtue of the right of exclusive possession, the tenant is the occupier of the premises and the landlord is not.
See also: Gaudron J [80] and Gummow & Hayne JJ [152].
Further, where there is exclusive possession of premises on the part of a tenant and the landlord retains a sole right to effect or approve repairs and alterations, the landlord is not an occupier under s 2 of the OLA: see Gleeson CJ [50].
The crucial distinction between a lease and licence is whether the occupier has exclusive possession of the land or not. If the occupier was let into exclusive possession he was a tenant; whereas, without exclusive possession he was only a licensee: see Radaich v Smith [1959] HCA 45; (1959) 101 CLR 209, 218 (Taylor J).
If the verbal agreement was not clear in its terms that what was being granted was exclusive possession then prima facie the arrangement would be one of licence not lease: see Lewis v Bell (1985) 1 NSWLR 731, 735 (Mahoney J).
While the state of the evidence is unsatisfactory and does not enable me to finally conclude what all of the terms of the arrangement were as between Mr and Mrs Lock and Robert and Ms Lock and there is no direct evidence on the issue of exclusive possession, Mr Baker bears the burden of proving that Mr and Mrs Lock were occupiers as he has pleaded.
On 26 October 2013 the premises were solely occupied in a factual sense by Robert and Ms Lock. Mr and Mrs Lock were not present, not living there and had not been present, apart from visits, of unclear duration, for most of the preceding three or four years.

Applying the above principles to my findings of fact, I am unable to find that words were used creating a clear grant of exclusive possession from Mr and Mrs Lock to their children at the time they started their caravan trip or at any later time. Therefore it is necessary for me to determine whether exclusive possession should be inferred from the nature of the rights and obligations as between the parties.
The relevant considerations include that the arrangement had subsisted for a period of three to four years whereby Mr and Mrs Lock lived in Derby and Robert and Ms Lock lived in the premises to the exclusion of others except for Ms Lock's son. Mr and Mrs Lock paid for repairs and maintenance and rates as is commonly the case with landlords and Robert and Ms Lock paid utility bills, as is commonly the case with tenants. I also accept Mr Lock's evidence that the control of the property and access of people to it was not with him but was with Robert and Ms Lock.
Although Mr Lock in his evidence described the arrangement as requiring payment of either rent or board (ts 143), I find that as Mr and Mrs Lock resided permanently in Derby some 2,400 km away for the three or four years prior to October 2013, the payments were for rent rather than board, albeit non‑commercial and variable in amount.
I conclude that Mr and Mrs Lock did grant exclusive possession of the premises to Robert and Ms Lock, no later than the time they commenced to reside in Derby. Even if Mr and Mrs Lock stayed at the premises when they visited from Derby, and it is not clear on the evidence that they did so, it was on the basis that Robert and Ms Lock consented to that.

Conclusion on occupancy

I find that the arrangement between Mr and Mrs Lock and Robert and Ms Lock was a periodic verbal tenancy agreement where Mr and Mrs Lock were the landlords and Robert and Ms Lock the tenants.
Accordingly, I am not satisfied that as at 26 October 2013 or in the three years leading up to that date that Mr and Mrs Lock were occupiers of the premises for the purposes of the OLA. I am satisfied, as counsel for Mr and Mrs Lock conceded in closing submissions I should be (ts 164), that Mr and Mrs Lock were landlords of the premises during the same period and on the day of the explosion.

The duty of care Mr and Mrs Lock as landlords of the premises owed to Mr Baker on 26 October 2013

Section 9(1) of the OLA deals with the duty owed by a landlord who is responsible for the maintenance and repair of premises to persons on the premises and s 9(3) preserves common law duties on landlords.
Section 9(1) provides:
Where premises are occupied or used by virtue of a tenancy under which the landlord is responsible for the maintenance or repair of the premises, it shall be the duty of the landlord to show towards any persons who may from time to time be on the premises the same care in respect of dangers arising from any failure on his part in carrying out his responsibilities of maintenance and repair of the premises as is required under this Act to be shown by an occupier of premises towards persons entering on those premises (emphasis added).
It follows from my findings of fact above that Mr and Mrs Lock were landlords with a duty of repair and maintenance in respect of the premises. They owed a duty of care under s 9(1) of the OLA to Mr Baker in respect of dangers arising from any failure to maintain and repair the premises.
I find Mr Lock was responsible for carrying out maintenance and repairs to the property which he effected when they were brought to his attention (by Robert or Ms Lock), either by performing the repairs himself or by he and Mrs Lock paying for repairs to be done.
On the evidence available to me the premises were reasonably fit for the purpose of residential occupancy and the shed for occupancy as a shed on residential premises in which work could be undertaken, both at the commencement of the tenancy and at the time of Mr Baker's injury.
There is no evidence that Mr and Mrs Lock failed to carry out their responsibilities of maintenance and repair to the premises. Therefore, no dangers arose from any such failure. There is no evidence that the explosion and fire on 26 October at the premises and Mr Baker's consequent injuries were caused by any failure to maintain or repair the premises.
It follows that although Mr and Mrs Lock owed Mr Baker a duty under s 9(1) of the OLA that duty has no application in the present case.

Did Mr and Mrs Lock owe any common law duty of care?

In Jones v Bartlett Gummow & Hayne JJ said that the common law duty (preserved by s 9(3)) that a landlord owes to an invitee such as Mr Baker was a duty to repair dangerous defects of which the landlord had known or reasonably should have known. They said at [178] ‑ [179] and [197]:
178.The thread running through these cases is that a dangerous defect will, or may, cause injury to persons using the premises in an ordinary way. They are defects in the sense that they are more than dangerous; they are dangerous in a way not expected by their normal use. Many domestic items might be said to be dangerous: gas ovens, caged fans, hard floors, electrical circuits and panes of glass may cause serious or even fatal injuries. However, they are ordinarily only dangerous if misused. They will only be defective if they are dangerous when being used in a regular fashion and ordinarily would not be dangerous when so used.
179.Moreover, the danger must appear in the course of the use of the premises for the purpose for which they were let. The reasonableness of the conduct engaged in by the person injured will be important. The danger may arise only to those performing acts unauthorised or uncontemplated as part of the purpose for which the tenancy was let. If so, there ordinarily will not be a dangerous defect. The actions contemplated and authorised by the purposes of the lease will depend on all the circumstances of the case. Often they will be expressed by the instrument of lease itself. Thus, ordinarily it will not be an incident of use of residential premises to climb trees situated thereon; nor ordinarily will it be a reasonable use of premises if the tenants do something, such as perform repairs, which they are forbidden to do by the terms of the lease which grants occupancy.
…
197.… The duty of care of the landlord to the third party is only attracted by the presence of dangerous defects in the sense identified earlier in these reasons. These involve dangers arising not merely from occupation and possession of premises, but from the letting out of premises as safe for purposes for which they were not safe. What must be involved is a dangerous defect of which the landlord knew or ought to have known.
It is important to distinguish between dangers arising from the premises and dangers on the premises. In Jones v Bartlett Gleeson CJ cited Mahoney J in Phillis v Daly (1988) 15 NSWLR 65, 74 with approval:
There are dangers on any premises. A room may have a desk or a table. There is a danger that, if I fall, I will hit my head on it and my skull will be fractured. If the desk or table were not there, I would suffer little or no harm. And the danger is obvious: people do slip and fall. And the injury may be serious. But the obvious foreseeability of such an injury and its seriousness does not involve that, if a person falls and hits his head on a table, there must have been a breach of duty by the occupier of the room.
Applying those principles to this case in relation to the events of 26 October which led to Mr Baker's injuries I find there is no evidence that Mr and Mrs Lock knew of the use to which the premises, in particular the shed was being put by Robert and no evidence that they knew he was perhaps carrying on a business from the shed. There is no evidence of any knowledge on their part of the existence of the thinners drum in the shed either at the commencement of the tenancy or at any time during the currency of the tenancy. There is no evidence of Mr and Mrs Lock having any knowledge of storage of cans or drums of flammable materials on the premises and no evidence of their allowing that to occur.
There is no evidence of any inspections conducted by them of the shed or its contents, no evidence of any awareness on their part of Robert's actions and intentions on 23 October and no evidence of their awareness of their son having earlier or at any time smoked or introduced ignition sources to the premises in the presence of flammable substances.
There is no evidence that Mr and Mrs Lock's premises including the shed were defective in any relevant sense. The thinners drum and lighter were not defects in the premises. The danger posed by the open thinners drum and the ignition source was obvious and foreseeable by any reasonable person present and was foreseen by Mr Baker and Mr Miles. The danger was created by Robert using a lighter in close proximity to the open thinners drum. There is no evidence that Mr and Mrs Lock knew about that danger or should reasonably have known about it.
It follows that although Mr and Mrs Lock owed Mr Baker a common law duty of care as landlords do to an invitee to the premises, their duty did not extend to the danger created by Robert.
Mr and Mrs Lock owed Mr Baker no other common law duty that I have been able to identify. In closing submissions counsel for Mr and Mrs Lock conceded there may be a duty on a landlord who knew of a dangerous state of affairs going beyond a defect in the premises, such as if ammunition was left stored in the shed, to remedy it (ts 172). In the circumstances of this case it is not necessary for me to consider the scope of such a duty, if it exists, because of my findings about the absence of proof of any knowledge by Mr and Mrs Lock of the thinners drum.
Finally, if I am wrong in my conclusion that Mr and Mrs Lock were not occupiers for the purposes of s 2 of the OLA and they consequently did owe an occupiers' duty of care under s 5 of the OLA, then in the circumstances of this case, and as was the case in Jones v Bartlett, I would find that the duty of care they owed Mr Baker was no wider in its content than those I have found to exist under s 9 of the OLA and at common law. The open thinners drum and proximate ignition source were not the legal responsibility of Mr and Mrs Lock. Any duty they owed Mr Baker under s 5 of the OLA would be insufficient in its content to have any application in this case.

Conclusion on duty

Although Mr and Mrs Lock owed a duty of care to Mr Baker under the OLA and also at common law, those duties have no application in this case. It follows that Mr Baker's claim against Mr and Mrs Lock must be dismissed.

Alleged breach of duty

Although it is not necessary for me to do so I will make some further findings in the event that my conclusions above are incorrect.
It is not necessary or appropriate for me to address the unresolved tension in the differing approaches taken by the Court of Appeal in Department of Housing and Works v Smith (No 2) [2010] WASCA 25; (2009) 41 WAR 217 to determining the appropriate standard of care under the OLA. I will adopt the approach that the standard for breach of a landlord's duty under the OLA and under common law are essentially consistent and will use the useful summary of applicable principles identified by Buss JA at [87]. They are:
•The determination of what, if anything, a reasonable person in the landlord's position would have done involves an assessment of what would have been reasonable and practicable for the landlord to have done.
•This inquiry is not to be undertaken in hindsight. It is necessary to look for or to identify what a reasonable person would have done, not backward to identify what would have avoided the particular injury.
•Thirdly, contemporary standards within the community are relevant in determining what is reasonable in the circumstances of a particular case.
•Fourthly, reasonableness may require no response to a foreseeable risk that is not insignificant.
•Fifthly, the occurrence of a foreseeable risk, that was not insignificant, does not establish unreasonableness.
I will deal with each of Mr Baker's pleaded particulars of breach in paragraph 9 of his amended statement of claim.

Allowed inflammable explosive substances to be stored in a shed [to] which visitors had access

Even if Mr and Mrs Lock were under a duty to ensure safe storage of flammable explosive substances in the shed, it would only have been reasonable and practicable to require of Robert Lock that the thinners drum be stored with its lid on and safely disposed of when empty. It would not have been reasonable to prevent storage of such items in the shed as that is what sheds are for. It would not have been reasonable to prohibit access of visitors to the shed as that would have both interfered with the right of the tenant to full use of the property and unreasonably restricted the use to which the tenant could put the shed. Viewed prospectively, there would be no foreseeable risk from the proper storage of closed containers of flammable materials in the shed to which visitors might have access.
In my view there was no significant risk that the tenant would leave an unopened thinners drum in the shed and then create a danger to people present by introducing an ignition source in close proximity to the drum. There is nothing that Mr and Mrs Lock could reasonably have done to prevent that from occurring.

Failed to take steps to ensure visitors were warned of the hazards in the shed

Sheds and workshops in residential premises are routinely used to store flammable and even dangerous substances. It is not the duty of the landlord to warn prospective visitors to the shed about the hazards of what might be stored there. It would not be reasonable to require landlords to place signs in sheds used by tenants warning of the potential risks of items that might be stored there by a tenant. The tenant and person responsible for storing the items may have that obligation.
Assuming though that I am wrong and Mr and Mrs Lock were under a duty to warn of the hazards in the shed, then it would have been reasonable and practicable to display warning signs and they would have breached that duty.

Failed to have any or any adequate fire extinguishing equipment on the premises

Mr and Mrs Lock's duty of care as landlords did not extend to ensuring there was adequate fire extinguishing equipment on the premises. If I am wrong about that then they would have breached that duty by failing to ensure that a fire extinguisher suitable for putting out solvent initiated fires was present in the shed.

The cause of Mr Baker's injuries

Again, although it is not necessary to do so, there are some findings I wish to make in relation to causation in the event that my conclusions above are wrong. I will approach causation in the same way as Buss JA did in Smith, by application of s 5C of the Civil Liability Act 2002 (WA).
Even if Mr Baker were able to establish duty and breach as pleaded, none of those breaches caused his injuries.
It was not the storage of flammable substances in a shed to which visitors had access that caused the explosion. Rather the explosion was caused by Robert introducing an ignition source proximate to an open thinners drum.
In this case, notwithstanding the lack of warning signs in the shed, both Mr Baker and Mr Miles were aware of the dangers posed by the open thinners drum when they first saw it in the shed. They both remained in the shed and I find that even if there were warning signs they would have done so. When Robert introduced the cigarette lighter into the equation there is nothing anyone could have done to stop what followed, least of all Mr and Mrs Lock who were 2,400 km away.
I find that Mr Baker's injuries were caused by ignition of the vapour and his immediate proximity to the explosion. His facial burns were a direct consequence of the explosion and I infer on balance that the other burns he suffered were a consequence of the explosion, although it is possible some of them might have occurred in the ensuing fire. Regrettably, no amount of fire extinguishing equipment would have made any difference to the outcome as the explosion was immediate and there was no opportunity to prevent it or the injuries suffered by Mr Baker by use of fire extinguishers.
Mr Baker's injuries were not caused by any alleged breach of duty owed to him by Mr and Mrs Lock.

Did Mr Lock admit liability to Mr Baker?

There is one final matter I need to deal with as it was the primary argument advanced by Mr Baker in both his opening and closing submissions at trial. He says that Mr and Mrs Lock are liable in damages to him because Mr Lock admitted responsibility in statements allegedly made by him on occasions that Mr Lock visited Mr Baker in hospital whist he was recovering from his injuries (ts 31 - 32, 187 ‑ 188).
The alleged admissions were not pleaded and I accept that Mr and Mrs Lock and their counsel had no notice prior to trial that they were intended to be relied upon. I considered at trial whether it was necessary for Mr Baker to apply to amend his statement of claim and concluded at that time that it was not. I indicated that if my view changed, I would give Mr Baker the opportunity prior to delivering my reasons to amend. For the reasons that follow, it is not necessary for the statement of claim to be amended because I find that there was no admission of legal liability and no admission of factual liability upon which Mr Baker could rely to prove his claim.
In explaining my reasoning it is necessary first to find what was said by Mr Lock to Mr Baker. Mr Baker's evidence-in-chief was that Mr Lock had visited him three or four times and on the first occasion said:
He pretty much just comforted me and wanted to know if I was OK and he did say, 'we have insurance. We'll look after you. You don't have to worry. All your losses will be sorted out because we have public liability' (ts 64).
During cross-examination (after a brief adjournment to obtain instructions regarding the alleged admissions) counsel put to Mr Baker that Mr Lock made no such statements to Mr Baker (ts 91 - 92). Under earlier cross-examination Mr Baker had confirmed the content of the statement and added that Mr Lock had also identified the insurance company as being SGIO (ts 83).
In his evidence Mr Lock, when asked about the conversations at the hospital, said in evidence-in-chief that he had no such discussion with Mr Baker in the hospital and that all he did was ask him how he was going and it was apparent to him that he was in a lot of pain (ts 140). When cross-examined by the Mr Baker, Mr Lock said that he did not recall saying that he had insurance and then in response to questions from me, said that the discussion in the hospital was about Mr Baker's welfare and that he did not discuss insurance with Mr Baker (ts 142).

My findings on what Mr Lock said to Mr Baker

Having had the opportunity to see both witnesses give their evidence, I am satisfied that Mr Baker's recollection of what was said at the hospital is credible and reliable. I accept those statements at [76] above were made by Mr Lock on at least one occasion when he visited Mr Baker at the hospital. I find that the true position in relation to Mr Lock is that he does not recall exactly what he said to Mr Baker at the hospital and insofar as his evidence in part denied making the statements, I do not accept that evidence. I do not find that Mr Lock lied about that, I find that his memory is not reliable.
In his evidence, Mr Miles said that when Mr Lock visited him in hospital he checked on his welfare and then said 'seek legal advice because we have insurance and that and stuff should get sorted out' (ts 103). I find that was said.
Mr Baker also called Mr Miles' parents, Mr Robert and Mrs Debra Miles. They both met Mr Lock at the premises a couple of days after the fire. Mr Lock showed Mr Robert Miles the scene of the shed. Mr Robert Miles said he also saw Mr Lock at the hospital in Jamie's presence but nothing relevant was said at that time. Mrs Debra Miles, in response to a leading question from Mr Baker, said that on the occasion that Mr Lock was showing them the burnt shed, he said,
'you'd be looked after or --?---He – just said that you'd be looked after but not – not to any extent. No. Yeah.' (ts 120).

The evidence of the Miles family does not assist me in determining what was said by Mr Lock to Mr Baker but it does assist in understanding Mr Lock's state of mind at the time and what he was intending to convey to both Mr Baker and Mr Miles in the immediate aftermath of their suffering injuries in the explosion at the premises.

Were Mr Lock's statements an admission that proves Mr Baker's case?

In Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317, Gleeson CJ said that in cases such as this it is necessary to identify the precise significance of admissions sought to be relied upon [25], see also Gummow J [69] - [71].
I find that the statements made by Mr Lock to Mr Baker in the hospital were an empathetic expression by him of comfort and sorrow about Mr Baker's injuries and intended to reassure him. I find that at its highest, Mr Lock intended Mr Baker to know that the property was insured and intended to convey a belief that insurance would cover any losses sustained by Mr Baker. Nothing that Mr Lock said to Mr Baker was an acknowledgement of liability on his behalf or on Mrs Lock's behalf. Nor did he make any admission of fact relevant to owing a duty of care, breaching the applicable standard of care or causing Mr Baker's injuries.
What was said by Mr Lock did not go so far in its content as the admissions which were found to be made in Dovuro Pty Ltd v Wilkins where the appellant admitted that it had failed in its duty of care to inform growers as to the presence of weed seeds in canola. Gleeson CJ held that such an admission 'cannot be an admission of law, and it is not useful as an admission of failure to comply with the legal standard of conduct' [25]; see also Gummow J, McHugh & Hayden JJ [68] – [71].
Even if Mr Lock had admitted negligence, that is a characterisation of law which cannot be relied upon to determine the issue of liability: see also Shine v Williams [2007] WASCA 194 [22] ‑ [33].
I reject Mr Baker's submission that the statements made by Mr Lock were an admission of liability that I can treat as proof of the case against Mr and Mrs Lock.

Disposition of the claim

Mr Baker's claim against Mr and Mrs Lock is dismissed as liability has not been proved.
I will hear the parties on costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AW
ASSOCIATE TO JUDGE QUAIL
19 APRIL 2018