Occupiers Liability Act 1985 s 5

Defendants liable as occupiers of premises in respect of danger posed by dog

Kelly's (Coleambally) Pty Ltd v Malone [2001] NSWCA 146

Benness v Town of Cambridge [2000] WADC 197

Chordas v Bryant (Wellington) Pty Ltd [1988] FCA 462; 91 ALR 149

Daily v Spot On Investments Pty Ltd T/as Spot on Photos (1995) A Tort Rep 81-363

Oates v Butterly & Anor [2000] WADC 80

Oates v Butterly & Anor [2000] WASCA 406

1 BLAXELL DCJ: The plaintiff in this action claims damages for personal injuries sustained on 26 May 2000 as a result of him tripping over a dog in the bar of the Dianella Tavern. At the material time the defendants were the licensees and occupiers of the tavern, and it is claimed that they were aware of and permitted the dog to be within the bar area.

2 The matter was listed for trial on 8, 9 and 10 August 2002, but by reason of the absence of witnesses it was not possible to proceed with the claim in relation to the damages allegedly suffered by the plaintiff. Accordingly it was agreed between the parties that I should proceed to hear and determine the issue as to liability alone.

3 At the date of the accident the plaintiff was aged 64 years and was self-employed in a family owned carpentry and joinery business which he conducted in conjunction with his son and grandson. The plaintiff was mostly engaged in fitting out post offices for Australia Post which usually involved working outside of normal business hours. Consequently the plaintiff had a good deal of free time during the week and he was a frequent daytime customer at the Dianella Tavern.

4 The Dianella Tavern was operated by the defendants and it offered a single bar area for the use of the public. There were front and rear entrances to the bar and the patrons were accommodated with a number of barstools and approximately four tables with chairs. It would seem that very little natural light entered the tavern.

5 The evidence suggests that although the tavern was not very busy it had a regular clientele including the plaintiff and his son Larry Bryan. Another regular customer was a disability pensioner and former plumber, Mr Robert Scott. Mr Scott had a kelpie border collie cross dog (named "Sheba") which he usually brought with him to the tavern. Mr Scott had originally kept the dog in his car parked outside the tavern, but for some considerable time prior to the plaintiff's accident had regularly brought it inside.

6 There is no suggestion in the evidence that the dog was in any way aggressive or ill-behaved towards people in the tavern. It was in fact a very friendly dog and allowed itself to be patted by anyone who wished to do so. Although the dog tended to lie down and remain in one position whilst it was in the tavern it was free to roam anywhere within the bar area that it wished. At times a bowl of water was placed by the kitchen door for the use of the dog.

7 Although many customers were quite happy with this situation, there is unchallenged evidence that others made complaints to the male defendant about the presence of the dog. In this regard the plaintiff himself had concerns that the dog was "hard to see". He told the male defendant a number of times that the dog "was a nuisance and an accident waiting to happen". The latter's response was to shrug his shoulders and say "well the owner drinks here".

8 Ms Maxine Sizer who had been employed at the tavern as a bar person for five years up until 1997 had also complained about the dog. Her concern was that the presence of the dog contravened the Health Act. She raised the matter with the male defendant and requested that he "ask Bob not to bring the dog into the tavern". According to Ms Sizer, the male defendant "didn't answer, he just walked off".

9 It is Mr Scott's evidence that he "was never asked to remove the dog because it was dangerous". However, the male defendant did say that "the dog is not supposed to be here" and asked Mr Scott to take it outside. As I understand Mr Scott's evidence he may well have complied with that request on that occasion but subsequently continued to bring the dog inside.

10 The plaintiff arrived at the tavern at approximately 2.00 pm on 26 May 2000. He had previously arranged to meet his son there in order to discuss the work that they would be doing the following day. The plaintiff entered through the rear door and seated himself on a barstool. He noticed Mr Scott's dog laying down in the vicinity of the toilets at the rear of the bar area.

11 The plaintiff bought himself a beer and had another when his son arrived approximately half an hour later. While the two men were drinking, Larry Bryan was seated on a barstool to the plaintiff's right.

12 It is the plaintiff's evidence that after he had consumed approximately three midstrength beers he decided to go to the toilet. He stood up from his barstool, turned left towards the toilets and then "went straight down". He did not have a chance to brace himself and "went down like a ton of bricks".

13 It is the plaintiff's evidence that he did not initially know what had caused him to fall but when he fell down the dog "skittled away" and then came back to lick him. His son yelled for it to go.

14 When the plaintiff had last seen the dog it had been lying down approximately 4 to 5 m away from his barstool and he had not noticed it to move from that position. The plaintiff had not expected the dog to be under his feet when he got up off the barstool and he did not look down as he commenced to walk to the toilet.

15 It is Larry Bryan's evidence that when he entered the bar he had also noticed the dog in the vicinity of the toilets. When his father got off the barstool, "he turned to walk and fell straight down on his knees". Larry Bryan then saw the dog half underneath his father and half out. He immediately yelled to the dog to get out. Prior to then Larry Bryan had not noticed the dog in the close vicinity.

16 Mr Melville Moyle was another regular customer at the tavern, who at the time of the accident was seated further along the bar having a drink with his wife. He did not see the accident, but heard a commotion, looked over and saw the plaintiff on the floor with the dog wandering away from him. When he first saw the plaintiff on the floor the dog was "a couple of feet" away.

17 Mr Kenneth Aitken was another regular patron, who at the time of the accident was seated at the opposite end of the bar to the plaintiff. Because of the configuration of the bar he had a full view of the plaintiff and Larry Bryan at an angle from behind. He differs from other witnesses in that he says that the plaintiff was seated to Larry Bryan's right. Prior to the accident Mr Aitken noticed that the dog "came up and sat behind (the plaintiff) - just behind his stool". He then saw the plaintiff stand up and suddenly collapse as if he had had a heart attack. The plaintiff landed on his knees and "the dog ended up underneath him".

18 During cross-examination Mr Aitken acknowledged that he could be mistaken in his recollection about some aspects of the incident because in recent times he had experienced a number of "mini strokes" and was first asked to remember what had happened only six weeks prior to trial.

19 Mr Robert Scott was also seated towards the opposite end of the bar from the plaintiff. He did not observe the accident but turned to look when someone said "Murray's fallen over". As the plaintiff walked past Mr Scott said "are you alright", and the plaintiff responded "of course I am right".

20 The final witness to the accident was Mr Kevin Gleeson, another regular patron of the tavern, who at the material time was talking to Robert Scott and the male defendant. It is Mr Gleeson's evidence that prior to the accident Larry Bryan called the dog over and was patting it. The dog remained in a position between the plaintiff and Larry Bryan. When the plaintiff got up off his barstool and turned left to go to the toilet "there was nothing there for him to trip over. The dog wasn't there".

21 Mr Gleeson differed from other witnesses in respect of the persons who were present in the tavern at the material time. In this regard he was adamant that Mr Aitken and Mr Moyle could not have possibly witnessed the accident because "they wasn't there".

22 The evidence generally establishes that as a result of the fall, the plaintiff sustained injuries to both knees. (Because I was not dealing with the issue of quantum of damages I did not hear evidence as to the nature of these injuries.)

23 With the exception of Mr Gleeson, there are no substantial conflicts in the evidence of the witnesses. Mr Gleeson did not impress me as a credible witness, and in my view his version of events should not be accepted. Accordingly, I am satisfied that when the plaintiff got up off his barstool and turned to go to the toilet he fell to the floor because he had tripped over the dog.

24 I also find that prior to the accident the dog had left its position near the toilets and had laid down adjacent to the plaintiff's barstool. Larry Bryan had not called the dog over, and he and his father were both unaware that the dog was there.

25 When the plaintiff had last seen the dog it had been laying down 4 or 5 metres away. The plaintiff did not look to his feet as he moved away from the barstool. If he had looked down he would have noticed the dog and the accident would not have occurred.

26 The statement of claim pleads that the defendants owed the plaintiff a duty of care under the Occupiers Liability Act to ensure that the premises were free of obstacles. It is also pleaded that the defendants were negligent in that they:

"(a) permitted a patron to bring and allow a dog on to and within the bar premises contrary to the provisions of the Health Act and the Health(Food Hygiene) Regulations 1993;

(b) knew or ought to have known the presence of a dog in the bar section of the tavern was a danger of which the defendant knew or ought to have known;

(c) failed to warn or otherwise take such steps as were necessary and appropriate to prevent the plaintiff from tripping and falling on the animal which was in the circumstances a foreseeable risk."

27 With regard to the first of these particulars, it is my view that a breach of the Health Act and Regulations does not of itself establish that it was negligent to allow the dog into the tavern. Those provisions are concerned with matters of hygiene rather than the physical risk that the presence of an animal might pose to persons such as the plaintiff. The relevance of the health legislation is that it confirms the undoubted power that the defendants had to have the dog removed.

28 The remaining particulars of negligence effectively plead that the dog was a danger of which the defendants knew or ought to have known, and in respect of which they should have taken appropriate steps to prevent an incident such as that as occurred with the plaintiff. To the extent it is alleged that the defendants ought to have warned the plaintiff of the alleged danger, I consider that a case has not been made out. This is because the plaintiff was as aware of the "danger" as the defendants and in fact had himself previously made a number of complaints to that effect.

29 In my view the essential questions on which liability turns are whether or not the defendants owed the plaintiff a duty of care because there was a foreseeable risk of a patron tripping over the dog, and if so, whether the discharge of that duty of care required that they take steps to keep the dog out of the tavern. Given that the defendants had the power as occupiers of the premises to have the dog removed, these questions come to be considered pursuant to the provisions of the Occupiers Liability Act 1985. Subsection 5(1) of that Act provides as follows:

"... the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, ... be such care as in all the circumstances of the case is reasonable to see that the person will not suffer injury or damage by reason of any such danger."

30 As I have previously noted, there has been no challenge to the evidence that there had previously been complaints to the male defendant that the dog was "an accident waiting to happen" and that it should be removed from the tavern. Although the male defendant did initially request that the dog be removed, he did not persist with this request when it was ignored. In these circumstances I consider that the defendants' failure to remove the dog was something "omitted to be done on the premises and for which the occupier is by law responsible". The question nevertheless remains whether the presence of the dog on the premises was a "danger" within the meaning of s 5 of the Occupiers Liability Act.

31 The presence of the dog was a danger if it gave rise to a foreseeable risk of a patron tripping and falling and suffering injury. In this regard, it is relevant that the dog was not in any way restrained and was free to roam the bar and change positions at will. Patrons seated or standing at the bar would usually be facing away from the dog and would not necessarily observe its movements. Accordingly, it should have been obvious to the defendant that the dog might get under the feet of a patron unobserved causing him to trip and fall. It follows in my view that the presence of the dog in the tavern did constitute a "danger".

32 This being so the defendants were obliged to exercise such care as in all of the circumstances was reasonable to ensure that their patrons did not suffer injury by reason of the presence of the dog. That duty could only be discharged by ensuring that the dog was kept out of the premises or alternatively by having it restrained by a leash in a fixed position.

33 The only burden on the defendants in eliminating the danger by these means was the risk of losing a regular customer. That burden was negligible compared to the risk of the danger to other patrons, and in my view the defendants failed to discharge their duty of care. That breach of the defendants' duty of care was the direct cause of the plaintiff's accident, and the defendants are accordingly liable for the plaintiff's injury.

34 In coming to this conclusion I have had regard to the decision of the New South Wales Court of Appeal in Kelly's (Coleambally) Pty Ltd v Malone [2001] NSWCA 146 which was relied on by the defendants in their submissions against a finding of liability. However, that was not a case of occupiers liability, but a claim by an employee who tripped over a dog outside the employer's premises. The dog was habitually outside the premises and it was claimed that the employer was negligent in failing to warn her of the risk of tripping over the animal. In my view the principles enunciated in that decision are of little assistance in the present case.

35 The defendants also rely on a plea that the plaintiff was contributorily negligent in that he tripped over the dog when he knew it to be in the bar and failed to look where he was going.

36 The facts relevant to the question of contributory negligence are that the plaintiff was aware that the dog was in the bar and when last seen was 4 to 5 metres away from him, that the dog was liable to change positions from time to time, and that it was "an accident waiting to happen". In these circumstances the exercise of reasonable care for the plaintiff's own safety required that he check the position of the dog before moving away from his barstool. The plaintiff failed to do this, and accordingly in my view he was contributorily negligent.

37 With regard to the question of apportionment of liability, I consider that the degree of negligence of the plaintiff was much less than that of the defendants. The defendants made what was effectively a deliberate decision to allow the dog continued entry into the bar (and on the evidence clearly for the reason that they wished to retain the dog's owner as a regular customer). The plaintiff on the other hand failed to look at his feet as he got off the barstool which was simply a matter of oversight.

38 In my view a just and equitable apportionment in these circumstances is that the plaintiff's damages should be reduced by 25 per cent.

39 For the above reasons I find that there should be judgment for the plaintiff for 75 per cent of his damages to be assessed.