Jones v Bartlett: A Case Study in Occupier's Liability

This report provides a case study of Jones v Bartlett, a significant case in the area of Occupier’s Liability. It includes the background, facts, decision, and rationale behind the case, as well as a critical examination of the decision. The report is relevant to Tort Law, and includes a bibliography of relevant legislation, books, journals, and case laws.

LEGAL METHODS AND SKILLS
Running Head: LEGAL METHODS AND SKILLS
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Legal Methods and Skills 1
Contents
Overview..........................................................................................................................................2
Background and Facts of the case...................................................................................................2
The decision of the court.................................................................................................................3
Ratio Decidendi...............................................................................................................................4
Obiter Dictum..................................................................................................................................5
Critical examination of the decision................................................................................................5
Bibliography....................................................................................................................................8
Legislations 8
Books and Journals 8
Case Laws 8
Other Resources 8

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Overview
The duty of care is a situation where a person needs to act similar to a reasonable person in
respect to others1. The given case for this report is Jones v Bartlett2 , 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.
Background and Facts of the case
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:-
1. The landlord failed to meet out the standards as mentioned under Occupiers' Liability
Act 19853 as the quality of glass was not up to such standards.
2. The landlord failed to examine the premises at the time of renting out the same, which
would identify the risk involved in the property.
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
1 Find Law, Negligence and the 'Reasonable Person' (2018) <
https://injury.findlaw.com/accident-injury-law/standards-of-care-and-the-reasonable-person.html>.
2 Jones v Bartlett (2000) 205 CLR 166
3 Occupiers' Liability Act 1985 (WA)

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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 decision of the court
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 only4.
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 actual5. Further, they
4 Tina Cockburn, Duty of Care of Landlords of Residential Premises (2018) <
http://www.austlii.edu.au/au/journals/UTasLawRw/2001/8.pdf>.
5 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/>

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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.
Ratio Decidendi
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 examiner6.
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.
6 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>.

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Obiter Dictum
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.
Critical examination of the decision
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

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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 care7. 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
Dickman8 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 risk9. Further, there must be a relationship of proximity between the defendant
and the claimant10. 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.
7 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>.
8 Caparo Industries PLC v Dickman [1990] UKHL 2
9 Nicholas J McBride and Roderick Bagshaw, Tort Law (Pearson UK,, 2018).
10 John Murphy and Christian Witting, Street on Torts (OUP Oxford, 2012)

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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 duties11. 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.
11 Austlii, Occupiers' Liability Act 1985 - Sect 5 (2018) <
http://classic.austlii.edu.au/au/legis/wa/consol_act/ola1985211/s5.html>.

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Bibliography
Legislations
Occupiers' Liability Act 1985 (WA)
Books and Journals
John Murphy and Christian Witting, Street on Torts (OUP Oxford, 2012)
Nicholas J McBride and Roderick Bagshaw, Tort Law (Pearson UK,, 2018).
Case Laws
Caparo Industries PLC v Dickman [1990] UKHL 2
Jones v Bartlett (2000) 205 CLR 166
Other Resources
Austlii, Occupiers' Liability Act 1985 - Sect 5 (2018) <
http://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)

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<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) <
http://www.austlii.edu.au/au/journals/UTasLawRw/2001/8.pdf>.