O'Meara v Dominican Fathers

The dispute in *O'Meara v Dominican Fathers* concerned a claim brought by a fee-paying resident of a university college against the college's occupier. The resident alleged negligence and breach of contract arising from injuries sustained in a fall from a first-floor balustrade. The balustrade did not comply with current building standards.

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.