• "Nowhere is that need for exceptional caution more important than in a case where the ultimate outcome turns upon the resolution of some disputed issue or issues of fact" : Webster v Lampard (1993) 177 CLR 598.
93 In Agar v Hyde (2000) 201 CLR 552 at 577, Gaudron, McHugh, Gummow and Hayne JJ at [24] referred to the observations on Barwick J in Philip Morris Inc v Adam P Brown Male Fashions Pty Limited (1981) 148 CLR 457 at 473 to the following effect:-
"[In] fact pleading as it was introduced in the judicature system, there is necessity to assert or identify a legal category of action or suit which the facts assert may illustrate, involve or demonstrate and on which the particular relief claimed in based or to which it is relevant."
94 Their Honours in Agar (supra) then stated at 578:-
"The result is that frequently the conventional form of pleading in an action of negligence will not reveal the alleged duty with sufficient clarity for a court considering an application for summary termination of the proceeding to be sure that all of the possible nuances of the plaintiff's case are revealed by the pleadings. Further, and no less importantly, any finding about duty of care will often depend upon the evidence which is given at trial. Questions of reliance or knowledge of risk are two obvious examples of the kinds of question in which the evidence given at trial may take on considerable importance in determining whether the defendant owed the plaintiff a duty of care."
95 I accept, for reasons discussed below, the submission made on behalf of the respondents at [63] of the written submissions to the effect:-
"… This case is one where it is not only not useful but likely to result in error if an attempt is made to describe the extent of the duty separately from the facts that give rise to the claim."
(2) Issues of risk and danger
96 An issue raised by the allegations in the Fifth Further Amended Statement of Claim is whether, at the time the lease was granted, there existed a foreseeable risk arising from the possibility of hotel patrons entering upon the reserve.
97 The relevant test expressed by Dixon J in Aitken v Kingborough Corporation (1939) 62 CLR 179 at 210 focuses attention on the nature of the danger itself assessed prior to the event according to the obviousness of the danger and the care ordinarily exercised by the public. Observations on this test were made by Brennan J in Romeo v Conservation Commission (1998) 192 CLR 431 at 445 and 455.
98 On the respondents' cases, at the time that the lease was granted by the applicants, the hotel premises had been modified so as to create an entertainment area on the seaward side of the hotel. On the basis of the material tendered in the present applications, the respondents contended that it was foreseeable that hotel patrons attending or present on the hotel premises on New Year's Eve who were unfamiliar with the reserve might wander off the hotel premises onto it.
99 In the way in which the respondents plead and particularise their respective cases, they contend that there was a forseeable risk and a danger arising from a combination of static factors that operated on the two properties, namely, the location of the two properties being contiguous to each, the absence of a protective fence or barrier to prevent or limit entry onto the reserve, the fact of the cliff face and, what is said to be, concealment of the cliff by the vegetation (the tea trees) that was located in the area between the property boundary and the cliff.
100 The respondents' cases are brought upon the basis that neither of them were unfamiliar with the area between the boundary of the two properties and they had no knowledge or appreciation that beyond the vegetation there was a cliff, that is, of what amounted to a concealed danger.
101 In my opinion, there are a number of factual matters, some involving complexity, which would render the present cases unsuited to being determined summarily. Reliance was placed by Mr Connor upon observations of Hayne J in Modbury (supra) at 289, [103] which I have extracted in paragraph [84].
102 I further accept Mr Connor's submissions that these cases do not arise in a settled area of the law of tort in which the liability of landlords in negligence has been plainly established. That is a separate and relevant matter in deciding whether the respondents' cases against the applicants should be summarily dismissed. Reliance was placed in the written submissions for the respondents upon the observations of Gaudron J in Northern Sandblasting (supra) in relation to the liability of landlords in negligence, namely:-
"… there has been no systematic development of the law of negligence in its application to landlords. Thus, neither the content nor precise nature of the duty owed by a landlord can be discovered from the case law."
103 I consider this is particularly relevant in a case involving a commercial lease of hotel premises. In Jones v Bartlett (supra), Gummow and Hayne JJ at 169 observed:-
"This case, like Northern Sandblasting , is concerned with a letting for residential purposes. What follows is to be understood with that in mind. That which is required in respect of premises let for commercial or educational or other purposes may well differ, but that is not for decision in this case."
104 The nature of the respondents' cases as framed in the respective pleadings and particulars involves, in part, allegations of negligence by omission including, in particular, the failure to erect a barrier or fence on the boundary between the hotel premises and the reserve, the failure to ensure a warning sign was erected and a failure to install illumination. The respondents' cases, however, are not entirely based on such omissions.
105 They allege that the applicants modified the premises so as to make them suitable for the conduct of entertainment on a comparatively large scale under the authorisation obtained by them, before the lease, for conducting entertainment on the hotel premises. As a consequence of those innovations, the plaintiffs contend the hotel operated for the purpose of the supply of beverages (including alcohol), and as a venue or place of entertainment at least at times, for comparatively large crowds of people.
106 The abovementioned innovations undertaken prior to the lease proceeds upon the basis that it was known and envisaged before the lease was granted that such large groups of people including, in particular, young patrons, would attend and assemble on the premises for functions such as New Years' Eve Celebrations.
107 The development of the hotel prior to the lease with a view to expanding business was, the respondents claim, undertaken without necessary precautions having been taken to guard against hotel patrons walking onto adjacent land where there existed a real and foreseeable danger.
108 The fact that the danger (the cliff) or the concealed danger (the cliff behind the tea trees) was located on the reserve land and not on the applicants' land is a matter, as I have earlier noted, emphasised in the submissions for the applicants. In many circumstances such a fact may be critical. However, the operation of the danger in the present case is one for consideration on the particular facts of the case as pleaded.
109 An example or an analysis of the point may be considered as follows. Whilst two parcels of land in different ownership may be readily identified by title and survey boundary details, in their physical form where they are contiguous with one another and there is no evident physical separation between them to a person who unknowingly crosses the boundary (there being no structural barrier), other circumstances may potentially arise. On one of the two parcels of land (Lot A) the owner, or if it is leased, the lessee, may carry on an activity that attracts members of the public on to that land. The neighbouring lot (Lot B) may not attract any visitors by reason of its undeveloped condition or lack of access. Where there is a known danger on Lot B and the only persons ever likely to access Lot B are visitors to Lot A, then a question could, in my opinion properly, arise as to whether there is a duty or responsibility of or in the owner and occupier of Lot A at a particular point or points in time to take steps to implement appropriate safeguards on the boundary. Of course, issues concerning "knowledge", "control" of land and control of risk amongst others may arise for consideration.
110 Senior counsel for the respondents has contended that, having regard to relevant provisions in the lease, the applicants had both control in respect of the leased premises and the power to implement safety precautions. The issue of "control" in respect of premises has been an important issue in many cases in determining the issue of "duty" and the nature and extent of the duty. However, it is unnecessary in these applications to determine whether ultimately the respondents' reliance upon the issue of control in the context of other matters will or will not encounter difficulties at trial.
111 In addition to the position that existed at the commencement of the lease, the respondents also contend that, during the term of the lease, the applicant lessors, had retained control over the outside areas of the hotel/motel premises. Reliance in this regard is placed, in particular, upon the provisions of clause 4(e) of the lease which referred to "absolute control" being vested in the applicants over the "outside of the premises and the entrances to the premises". This, the respondents' contend, vested in the applicants power which the respondents will seek to argue at trial should have been exercised before the date of the accident to fence off the hotel premises from the reserve land and to have put in place other safety measures that have been particularised.
112 In relation to premises that are the subject to a lease, it has been recognised that on the question of the duty of care in a landlord, difficulty may arise in determining the nature and extent of any duty: Jones v Bartlett (supra) per Gummow and Hayne JJ at 214. It was there observed:-
"… the 'circumstances' to be considered may differ between landlord and tenant and landlord and other persons. There is no necessary correlation between the respective duties, although the latter is likely to be less stringent than the former …"
113 As their Honours stated in that case, the duty of the landlord owed to third parties, in many cases, will be narrower than that owed by an occupier such as a tenant. However, the issue for consideration and determination on the present strike-out applications is whether, on all the facts and circumstances that have been identified as those relied upon by the respondents, if proved, they are capable of supporting a duty in the applicant/lessors to ensure that the condition of the premises as leased did not lead to a foreseeable risk of injury. As Gummow and Hayne JJ observed in Jones v Bartlett (supra), the duty of care of a landlord to a third party is only attracted by the presence of dangerous defects, examples of which were provided at [197]. It is important in this context to observe their Honours further observation on the nature of the dangers that may give rise to the duty:-
"197. These involve dangers arising not merely from occupation and possession of premises, but from letting out of premises as safe for purposes for which they were not safe. What must be involved is a dangerous defect of which the landlord knew or ought to have known."
114 A distinctive and, perhaps novel, factual aspect in the present case is, as discussed earlier, that the immediate danger associated with the accidents (falling from the cliff) did not exist within the boundaries of the hotel/motel premises. However, the plaintiffs' case is that the cliff, in the absence, inter alia, of a barrier or fence on the boundary of the premises, always posed a potential to a particular class of persons, namely, hotel patrons (including the respondents) who crossed the unmarked boundary between the two premises.
115 The significance of these matters to the respondents' cases in the determination of the present applications is not so much how they may inform the nature and extent of the duty, but is in recognition of the fact that a duty of care between landlord and "other persons" than the lessee will depend upon "the circumstances" including the physical relationship of the leased premises to adjoining premises and activities carried on on the former.
116 The present proceedings involve a question as to a duty of care said to arise in connection with premises carried on for commercial purposes, namely, as a hotel/motel and as an entertainment venue. The decisions of the High Court in Northern Sandblasting (supra) and in Jones v Bartlett (supra) were concerned with a letting for residential purposes. Gummow and Hayne JJ in Jones v Bartlett at [169] observed that what was stated in Jones v Bartlett was to be understood in the context of a residential lease and, as noted earlier in this judgment, their Honours stated:-
"… that which is required in respect of premises let for commercial or educational or other purposes may well differ, but that is not for decision in this case."
117 The respondents alleged that the premises were not reasonably fit for the purpose of conducting comparatively large scale events which may bring patrons into close proximity to the danger on the reserve land. It is part of their case that the applicants ought to have been aware of that fact at the time they leased the hotel/motel and during the term of the lease.
118 Gummow and Hayne JJ observed in Jones v Bartlett (supra) at [177] that some dangerous defects will exist at the time of entry into a tenancy agreement while others might develop during the course of the tenancy. Rather than determining into which category it falls, their Honours observed:-
"… a better approach is to look at the origin of the defect, particularly whether it arises from faulty design or workmanship, at whatever stage, or whether it arises from a lack of repair. Those responsible for negligent design or building will ordinarily be liable as primary tortfeasors. Liability for disrepair will ordinarily fall upon the party with the obligation to repair. Liability for negligent repair ordinarily will fall on the repairer."