Page 1712 - Week 06 - Tuesday, 30 April 1991
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Davis v. Foots, which went on the same principle that you cannot succeed in an action for negligence if you are leasing premises. In that case a young couple on their wedding night expired in their bed as a result of the landlord's negligence in repairing a gas heater. They were gassed to death.
Mrs Grassby: They went with a smile on their faces.
MR CONNOLLY: Perhaps, Mrs Grassby, they did. So, even in this area we can find some bizarre facts. Obviously that rule was out of step with modern law. In 1985 the Supreme Court of South Australia in Parker v. South Australian Housing Trust, in fact, rejected the rule in Cavalier v. Pope; but there was always doubt as to whether that would be applied in courts in other jurisdictions. It is interesting to note that the law has been altered in other jurisdictions - in England by the Defective Premises Act 1972, and in Victoria by the Occupier's Liability Act 1983. It is entirely fitting and appropriate that we in this Territory should also, by statute, abolish this clear anachronism, and we welcome the Government's move in that direction.
We commend the Law Reform Committee for its work in drawing this matter quickly to our attention, and we note with pleasure the passing of an iniquitous, but perhaps in some factual situations amusing, principle of the common law.
MRS NOLAN (9.34): I rise to speak very briefly in this debate tonight on this Bill before the house. The law relating to occupier's liability was looked at prior to self-government by the Australian Law Reform Commission. As we have already heard this evening, it was, in fact, report No. 42, "Occupier's Liability", and that was reported on in 1988.
As with many other commission reports, the Commonwealth ignored the recommendations. Before the commission's report was finalised, the High Court of Australia in the case of Australian Safeway Stores v. Zaluzna, which Mr Connolly referred to, determined that the common law principles of negligence should apply to the facts of occupier's liability cases. This decision resolved many of the difficulties of occupier's liability law. However, the law in this area is not as clear with respect to a special rule that arguably still applies to the landlords.
The commission recommended that the common law rule in Cavalier v. Pope, which provided that a landlord is not liable in occupier's liability, should be abolished if it applies in ACT law. The ruling of Cavalier v. Pope derives from an English case decided in 1906. I am not going to continue on and talk about that case, as the house has already heard a little about it this evening.
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