SKYE HELEN O’MEARA v DOMINICAN FATHERS (ACN 006 193 255) [2003] ACTCA 24 (5 December 2003)
NEGLIGENCE – occupier’s liability – fall from first floor balustrade of a residential university college –whether college aware of practice of unsafe behaviour and failed to take precautions – where balustrade did not comply with current building standards
CONTRACTS – occupier’s liability – contractual liability – content of implied term as to safety of premises – where appellant is fee paying resident in residential university college – where practice of unsafe conduct by students – obligation of occupier in control of premises
EVIDENCE – hearsay rule – business records exception
EVIDENCE – evidence produced by process, machines or other devices – proof of contents of a document
EVIDENCE – failure to call evidence – Jones v Dunkel inference – whether respondent had knowledge of practice of unsafe behaviour – where respondent failed to call available evidence – where appellant entitled to inference that such evidence was not led because it would not have assisted the respondent
CONTRIBUTORY NEGLIGENCE – whether apportionment of liability in contract where contributory negligence – whether duties in tort and contract are co-extensive
Evidence Act1995 (Cth) ss 48(1)(e), 69, 142, 146, 183
Law Reform (Miscellaneous Provisions) Act 1955 (ACT) s 15
Ahluwalia v Robinson [2003] NSWCA 175 cited
Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 cited
Astley v Austrust Ltd (1999) 197 CLR 1 referred to
Australian Safeways Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 cited
Barrett v Ministry of Defence [1995] 3 All ER 87 cited
Blatch v Archer (1774) 1 Cowp 63 cited
Brodie v Singleton Shire Council (2001) 206 CLR 512 referred to
Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 considered
Cardone v Trustees of the Christian Brothers [1994] ACTSC 85 distinguished
David Jones Ltd v Bates [2001] NSWCA 233 cited
Desmond v Cullen [2001] NSWCA 238 cited
Hackshaw v Shaw (1984) 155 CLR 614 considered
Hoyts Pty Ltd v Burns [2003] HCA 61 cited
Jones v Bartlett (2000) 205 CLR 166 applied, referred to
Jones v Dunkel (1959) 101 CLR 298 applied
Key v Commissioner for Railways (1941) 41 SR (NSW) 60 cited
Lopes v Taylor (1970) 44 ALJR 412 cited
Maclenan v Segar [1917] 2 KB 325 cited
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 cited
Morgan v Babcock and Wilcox Ltd (1929) 43 CLR 163 cited
National Australia Bank v Rusu (1999) 47 NSWLR 309 considered
Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 cited
Nuhic v Rail & Road Excavations [1972] 1 NSWLR 204 cited
O’Donnell v Reichard [1975] VR 916 cited
Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 cited
Phillis v Daly (1988) 15 NSWLR 65 cited
Postnet Pty Ltd v Wood [2002] ACTCA 5 referred to
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 applied, referred to
Rundle v State Rail Authority of New South Wales [2002]…
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- Case
- [2003] ACTCA 24
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the college, as occupier, was aware of a practice of unsafe behaviour by students and, if so, whether it failed to take reasonable precautions to prevent such conduct. Further, the court had to consider the content of an implied term as to the safety of the premises in the context of a contractual relationship between the resident and the college, and whether duties in tort and contract were co-extensive, particularly in relation to contributory negligence. The admissibility of evidence, including hearsay and evidence produced by machines, and the potential for a *Jones v Dunkel* inference due to the college's failure to call available evidence were also relevant issues.
The court reasoned that the college, as occupier, owed a duty of care to its residents. This duty extended to taking reasonable steps to prevent foreseeable harm, including harm arising from unsafe behaviour by students, particularly where the occupier had knowledge of such practices. The court considered the contractual relationship and the implied term of safety, finding it encompassed an obligation to take reasonable steps to ensure the premises were safe. The court also addressed the admissibility of evidence and the application of the *Jones v Dunkel* principle, allowing an inference that evidence not called by the respondent would not have assisted its case regarding knowledge of unsafe behaviour. The court ultimately found that the duties in tort and contract were co-extensive.
The parties were directed to bring in short minutes of order to give effect to the court's reasons.
Orders
Orders of the court
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The parties bring in short minutes of order to give effect to these reasons.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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