Lipman v Clendinnen [1932] HCA 24

Lipman v Clendinnen [1932] HCA 24 - HCA 1932 case summary — Zoe

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or path has a width varying according to the recesses and projections of the building from two feet seven inches to three feet four inches. Along its length it is separated from the lightwell by a low brick coping nine inches wide. It begins at a level lower than the lawn by nearly eighteen inches, and is reached from the lawn by two steps of brick. The top of these steps is formed with the coping by carrying its brickwork at the same level as the grass transversely across to the wall of the defendant's building. The transverse brickwork which constitutes the step is at the same time carried across to the neighbouring house to form the end of the lightwell. Thus, at the corner of the defendant's building the grass runs up to a brick bar or step from about the centre of which, and at the same level, the brick coping runs at right angles to form the division between the ramp and the lightwell. If anyone steps off the grass, or the bricks at which it ends, to the left of the coping which meets it at right angles, he will descend the steps on to the ramp; but if he steps to the right of the coping he will fall into the lightwell. A pittosporum hedge grows along the boundary fence from the lightwell to the street, and the tree nearest the lightwell is close enough to it to be likely to brush the face of one stepping directly across into the well. Otherwise there is no guard or protection. But in daylight the steps and the well are visible as soon as the corner of the house is reached and no one who looked would be in any danger unless his sight were deficient or his gait uncertain. At the back the defendant's building increases in width and a wall at right angles reaches to the neighbouring building. Both ramp and light- well end in the blank wall which is so carried across the intervening space. But in the side wall of the defendant's building, near the end of the ramp, a small door opens on to it. It is not constructed for ordinary use as an entrance and its dimensions are only three - feet ten inches in height and two feet six inches in width. Inside

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with the defendant in exchange for the use of the rooms to nine shillings a week and to undertake the duties of keeping e paths clean and the garden in order and to show prospective tenants over vacant flats and generally to take charge of so much the premises as were not in the occupation of other inmates. had the defendant's express authority to do what work she d obtain from tenants, and she was not expressly prohibited doing work for others. It seems that both the house agent for the and the occupants whom inquirers disturbed were accustomed to lirect prospective tenants and others who sought the caretaker to go ound by the path or ramp to the small door in order to find her. g to her difficulty in hearing them, she obtained the defendant's rity to put in the door a rotary bell which she could hear from rooms. For some time, when flats were vacant, a board was ited in front of the house inscribed " Flat to let apply side ," but this board was stolen or disappeared. Before the caretaker was appointed to that office she had done and domestic work by the day, and, among her employers ere the plaintiff's mother and sister, who lived in St. Kilda. At time they occupied one of the flats, the flat at the corner where te ramp begins. Apparently, when they left the flats to reside ere in St. Kilda, they continued the practice of employing casually. The plaintiff sometimes came to Melbourne and yed at the same place as her sister. During such a visit on the ve of Ist September 1931 her sister, who had complained of ing ill, asked the plaintiff to go to the flats in Robe Street and st the caretaker to come to her next day to do some domestic The plaintiff two years before had stayed with her mother e flats during two separate visits, but she did not acquaint with the ramp, the side door, or the mode of reaching the ker. Accordingly she asked her sister how she would get in with her, and received a direction to go to the right side of ing, down some steps, to walk as far as she could, and she

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that the change was not right, he would be just as much there pon business which concerned the shopkeeper, and as much entitled protection during this accessory visit, though it might not be to shopkeeper's benefit, as during the principal visit, which was. And if, instead of going himself, the customer were to send his ervant, the servant would be entitled to the same consideration as the master. The class to which the customer belongs includes s who go not as mere volunteers, or licensees, or guests, or 'servants, or persons whose employment is such that danger may be _ considered as bargained for, but who go upon business which concerns the occupier, and upon his invitation, express or implied" (per Willes J., Indermaur vy. Dames (1) ). The occupier has sufficient "interest " although the visitor comes upon business not with the

occupier but with others, if the occupier provides the use of his premises as a matter of pecuniary interest so that business of the kind may be transacted. In Smith v. London and St. Katharine Docks Co. (2) a tradesman who crossed a gangway for the purpose of business with a member of a ship's company was held to be an vitee of the Dock Company which supplied access to the ship. "In Elliott v. C. P. Roberts & Co. (3) a contractor for a building had _ agreed with the building owner to permit " specialists" to use his
scaffolding and a servant of a " specialist" was considered to be an invitee of the contractor in respect of the scaffolding. In Leveridge v. Skuthorpe (4) a girl was hurt at a hall let by the occupiers for an evening concert while she was assisting those who at the request of the hirers were decorating it for the performance ; she was held to be an invitee of the occupiers. The visitor comes on a matter of material interest to the occupier if his presence is in a general way ancillary to the business carried on by the occupier. 'Thus friends who attend the departure or arrival of travellers by come upon railway stations as invitees (Watkins v. Great Western Railway Co. (5); Redpath v. Railway Commissioners (6) : Langton v. Board of Land and Works (7) ). An actress is an invitee attending rehearsals in the expectation of engagement in the

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'It is only because she came upon the implied invitation, or at least with the tacit consent, of the caretaker that she comes within the general leave and licence of the defendant. Now, it is not easy to ~ see how the caretaker who agreed to take the rooms with the existing means of access could complain of any harm suffered by reason of its construction and unlit and unguarded condition. But it is

often stated that the owner in control of the access to premises, which he has let to a tenant, incurs to one who comes upon them as a visitor of the tenant no greater duty of care than he owes to the tenant. In Huggett v. Miers (1) Farwell L.J. said: " 1 altogether dissent from the contention . . . that . . . a member of the public using the staircase on the invitation of the tenant can have a greater right than the tenant himself." See, too, per Gorell Barnes P. (2) and Blaufarb v. Drooker (3). Accordingly, as no condition of apparent danger, either in the state of the premises themselves, or in the nature of the access leading to them, supplies "any reason in law for fastening upon the landlord a liability to a tenant who takes them unconditionally in that state, it has appeared to follow that with respect to strangers visiting the tenant the Jandlord must enjoy a like immunity. Thus, if a tenant is content to approach his dwelling by a ladder, by steep or narrow steps, by a plank, by a girder over a stream, by an unguarded flight of steps bridging an area, or by an unfenced or unlighted staircase, his visitors could not complain that his landlord did not provide an access of a different or a safer character. Compare per Atkin J. in Tncy v. Bawden (4); per Lush J. in Dunster v. Hollis (5); per Phillimore LJ. in Dobson v. Horsley (6); per Lord Buckmaster in Fairman vy. Perpetual Investment Building Society (7). Nevertheless, Tam unable to think that it is an accurate statement of the law that a landlord who is in possession and control of the means of to rooms occupied by his tenants owes to their visitors no higher duty of care than to the tenants themselves with reference ) the safe use of the approaches. The duties appear to me to arise different relations and, according to circumstances, either one

(1908) 2 K.B. 278, at p. 288. (4) (1914) 2 K.B, 318.

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tion to light his staircase; and by not doing it he was not ying a trap for the man" (per Buckley L.J. in Dobson v. Horsley ). In Lewis v. Ronald (2) an invitee who attempted to find his iy in the dark and fell down a flight of stairs failed in his action, se, knowing nothing of the place, he walked upon the assumption there was a continuously level surface, the actual condition of lings not being such as he could not reasonably have expected. Wilkinson v. Fairrie (3), although in itself a case of small importance doubtful correctness, has occasioned some observations which e often been cited. According to Isaacs J. in Gorman v. Wills the case should be regarded as one relating only to licensees. considered, it is a decision that no breach of duty is committed by directing a volunteer to take a stairway dangerous only because it is then in darkness. In Indermaur v. Dames (5), in the Common Pleas, Willes J. said of it: "In the case of Wilkinson v. Fairrie lied upon for the defendant, the distinction was pointed out ordinary accidents, such as falling down stairs, which ought to be imputed to the carelessness or misfortune of the sufferer, and nts from unusual, covert danger, such as falling down into it." In the Exchequer Chamber Blackburn J. appears to have that the case ought to be supported on the ground that the chose to go into the premises and wander about in the in a way the defendant could not anticipate (Indermaur v. a as reported in the Law Times (6), combined with the » Journal report (7)). These cases explain and illustrate Sumner's observations, but they suggest that he meant to only to risks arising from physical features of the occupier's ises which were not so incongruous with its character or the purposes for which it was known to be appropriated as to falsify reasonable expectation. It is difficult to believe that a licensor, tho actually witnessed his licensee walking in the dark along a path familiar to him in which there was a dangerous obstacle apparent n daylight but not discernible at night, would not be guilty of a ch of duty if he failed to warn him. Compare Kimber v. Gas ight and Coke Co. (8). (1) (1915) 1 K.B., at p. 640. (4) (1906) 4 CLLR. 764. (2) (1909) 101 L.'P. 534. (5) (1866) LR. 1 C.P., at p. 288. (3) (1862) 1 H. & C. 633; 158 E.R. (6) (1867) 16 LT. 293, at p. 294

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care on his part would not disclose and which, considering the nature of the premises, the occasion of the leave and licence, and the circumstances generally, a reasonable man would be misled into failing to anticipate or suspect. Three of the requirements contained in this statement are clearly fulfilled by the facts of the present case. The injury suffered by the plaintiff was undeniably caused by the state or condition of the premises. That condition was known to the defendant. It was unknown to the plaintiff. Nor can there be much doubt about the danger of this condition. At a turn where a continuous level surface ends in a step, the existence of an adjacent pit nearly six feet deep with its abrupt edge uniform with the step in level and alignment would, I think, provoke in any but the thoughtless an instinctive apprehension of mischance. In daytime the lightwell can be seen and avoided, but, even so, a false step, an impulsive movement, a failure of bodily control or a momentary inattention to direction may have serious consequences. The real difficulty lies in the question whether in darkness the danger possesses the qualities of "concealment and surprise." I have come to the conclusion that an affirmative answer should be given to this question. In the first place, I do not think the exercise of ordinary care would disclose the danger to a visitor who was unaware of the existence of the lightwell. It is true that my inspection of the premises was conducted in daylight, but I feel little doubt that, unless the visitor carried a light, he would be unlikely as he passed between the walls of the two buildings to ascertain the presence of the cavity except by tumbling into it. I do not think the windows of the lighted room at the corner of the flat would illuminate the ramp and the well. To carry a light or obtain matches appears to me to be a precaution in excess of the degree of care which ordinary prudence would dictate in the use of an approach to a side door of suburban flats, notwithstanding that it contains steps. In the next place, the particular construction of the ramp and lightwell is quite unusual. Such things must rarely exist at the ground level of an ordinary dwelling. An open pit, whatever its purpose, placed at the edge of a grass plot in proximity to a pathway leaving the grass, is at least surprising. The juxtaposition of the pit, the steps and the lawn at the corner on the way to the door, appears to me

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Judgment (83 paragraphs)