Business And Corporation Law : Jurisdiction And Duty

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Business And Corporation Law : Jurisdiction And Duty

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Business And Corporation Law : Jurisdiction And Duty

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Question:
Discuss about the Business and Corporation Law for Jurisdiction and Duty.

Answer:

Introduction
The occupier of a property owes a duty of care to all the persons who visit his property. The occupier should ensure a safe environment to all those who enters his property. Sometimes, a defect may arise in a property and it is the responsibility of the occupier to cure such defects so that the persons who enter or use his property do not get injured. Thus, an occupier has a duty to take proper steps if he can foresee some injury arising out of any defect in the property. This assignment makes an analysis of the case of “Baker v Gilbert”, which was decided by the New South Wales Court of Appeal in 2003.
Facts of the case
Ms Gilbert jumped off from a footoplate which was attached to a swimming pool ladder. The footplate was unstable and Ms Gilbert hurt himself after jumping off from it. She landed awkwardly and got seriously injured. The incident occurred in the premise of Mr. Baker. The reason for which the ladder was unstable was because certain bolts in the footplate was loose. Baker said that he was not aware of the defects in the footplate and he never visited the pool area, which was not far from his place of residence.

Issue involved in the case
“Whether or not a householder, who does not know the existence of a defect to his property (swimming pool ladder) that might cause danger to a lawful visitor, but is aware of circumstances which would alert a reasonable person to the danger from such a defect, may ignore the existence of the defect.”
Decision
The Court found that the accident was caused as the bolts of the footplate was not stable. The risk was foreseeable and must have been avoided by any reasonable person.
The Court referred to the cases of “Hackshaw vs Shaw” and “Australian Safeway Stores Pty Limited v Zaluzna.”
The facts of the case of “Hackshaw vs Shaw” were that Shaw owned a firm where storage of petrol was done. One night two thieves came to the Shaw’s firm with an intention to steal petrol. Shaw became aware of the incident and fired warning shots at the car. Hackshaw, who was seating the front seat of the car got injured die to such firing. Shaw claimed that he was totally unaware of the fact that Hacksaw was sitting in the front seat of the car. The Court decided the case against Shaw. According to the court, the injury was quite foreseeable and Shaw had a duty of care to avoid such injury. Shaw should have foreseen that a person might be sitting in the front seat of the car and should have acted with care. But Shaw was negligent in firing the shots which resulted in the injury to Hackshaw. Thus, it was held that a duty of care is owed by an occupier of property towards a trespasser if the occupier could foresee that injury could be caused to the trespasser by the negligence of the occupier (Sheehan Amara, 2012).
In the case of “Australia Safeway Stores Pty Ltd Zaluzna,” the plaintiff visited the store of the defendant. It was raining outside and the foyer was wet due to which the plaintiff slipped and got injured. A suit of negligence was filed by the plaintiff. It was held by the Court that the defendant had a general duty of care towards the plaintiff. The injury was reasonably foreseeable and the defendant should have taken precautions to avoid causing injury to the plaintiff. But the defendant failed to do so and as a result the defendant was held liable for negligence (Maitland, 2013).
In the instant case, the Court held that Baker was liable for not taking proper precaution. The injury was foreseeable and Baker had a duty of care. He should have taken care of the footplate as it was unstable and prone to causing injury to the persons using it. But Baker had not dispensed his responsibility of taking proper precautions and as a result he should pay compensation to Ms. Gilbert.
Conclusion
Thus, an occupier cannot take a defense that he is unaware of the defects in the property. If an injury, which may arise out of any defects in the property, is foreseeable by a reasonable man, the occupier should take appropriate steps to avoid such risk of causing injury. In the case of “Baker v Gilbert”, the occupier (baker) had not taken any precaution and therefore he was negligent and he should pay compensation top Ms Gilbert.

References
Maitland, I. (2013). CSL Australia PTY LTD v Formosa: Jurisdiction and Duty of Care. Austl. & NZ Mar. LJ, 27, 18.
Sheehan, J., & Amara. (2012). Applying an Australian native title framework to Bedouin property. Indigenous (In) Justice: Human Rights Law and Bedouin Arabs in the Naqab/Negev, 4, 229.

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