Baker V Gilbert: Kralc Wholesale Pty Ltd

lts. In the Australian Law there was nowhere mentioned that householders will be considered negligent if they are unaware about any defect in their property. Gilbert was swimming in the pool with the permission of Baker.[1] After swimming when she was going to climb the ladder then she fell and got seriously injured. Then she had alleged on several grounds that Baker was negligent in maintain the ladder properly. If he would have maintained the ladder properly then this incident would not have occurred. Appeal was made on several grounds but it mainly fall under the below two categories:

• Garling DCJ unable to find about the instability of the footpale and it was mainly caused by the inadequate tightened bolts.
• Garling DCJ was also erred in finding that as an occupier of the premises Mr. Baker should have maintained or inspected the footpale and the ladder.[2]

Rule: in this case Common law of negligence would be applicable. Common Law simply says that if many persons enter the premises of the occupier then it is his duty to take care of those premises. They are in the premises which belong to the occupier so he should not be negligent in performing his duties. Even the tort of negligence would be applied in this case. Generally torts are created by common law and these statutory wrongs are analogous to torts. Tort is generally considered as a crime and all the claims in tort are civil claims which are bought up by the individual’s concerned. Torts can be committed by anyone whether it’s individual or companies.[3] Tort liability includes both vicarious liability and personal liability. It includes false improvement, assault, battery and a very expensive tort of negligence. Negligence can happen anywhere, whether it is on roads, or it is in somebody’s place or anywhere else. It is necessary that in all case of torts damages will be awarded. It will depend upon case to case basis. Generally people have the right for any legal distress if they can prove the probabilities that they have been a victim of tort. In some of the cases victim can even ask for an injunction from the courts so that tort can be prevented.[4]

Application: now after understanding the issue and provisions relating to the case we will understand how these provisions is applied in this case. The court’s judgement will also be discussed here. The main problem was that the nut was not tightened up to the coaming properly, and so the footpale was not stable. This resulted in the fall of Gilbert. Garling DJ was simply claiming that the footpale was not properly fixed which was very critical for the people who were swimming there.  He stated that it was the premises of Mr. Baker and so he responsible for the safety of the people coming in his premises. But unfortunately the footpale was not stable and Gilbert got hurt very badly. So Mr. Baker had breached his duty of care. He should have been careful since he owed a duty of care to all the people in the swimming pool. Some of the cases were very similar to this case. One of the cases which were very similar to this one was the case between Short v Barret. In this case a visitor came to his friend’s place where he fell of a timber deck balcony because one of the planks on the side of the balcony gave away. The house owner was simply not aware about this defect in his balcony.[5]

There was another case between Stannous v Graham where plaintiff had rented the premises of the defendant as a holiday flat. The problem in this case was that there were loose steps in the premises which even the defendant was unaware. Due to this plaintiff had fallen and had several personal injuries. It was finally concluded that defendant was not to blame since he was not aware about the defect in the premises. Hence on the basis of this even Court had decline to impose and tortious duty on the owner to inspect the premises for the purpose of discovering some defects which were not known.

On the basis of the above two cases I would want to support the defendant that is Baker. Gilbert came in the premises of Baker and she got injured since the footplate was not stable. Mr Baker’s liability was given in the judgement of Deane in Hackshaw v Shaw and was also approved by the High Court in Australian Safeway Stores Pty Limited v Zaluzna. The first most important thing to determine is to whether the defendant owed any duty of care under the ordinary principles of the negligence to the plaintiff. Since defendant owes a duty to the plaintiff this means that there must be a degree of proximity of relationship. So there would be a reasonable risk of injury to the visitor who is a member. Breach of the duty would depend upon on a situation in which a reasonable person would do to give response to the foreseeable risk. In the case of Short v Barret, before finding that there was no negligence from the side of the occupier it was seen that balcony showed that there were no signs of crack and there was indication that the balcony was unsafe. It was a sudden incident which evens the occupier didn’t expect. Defendant received no warning that the balcony would be unsafe.  It is not always possible to give warning to everyone; sometimes warnings can be implied from the circumstances.[6]

Conclusion: The conclusion reached by the judge was that it would not uphold the appeal by the appellant. Mr Baker was responsible for the injury which was caused to Gilbert. He had breached the duty of care. The judge had decided to dismiss the second appeal with costs. Garling was responsible to find out the appellant responsible for any consequences that had raised in the negligence of ladder’s maintenance.[7] During the day when Gilbert got hurt Baker had inspected the pool and have noticed that there were some issue with the footplate. This shows that there was a sign of warning that something was wrong with the footplate. So he should have given warnings to all the people who went for swimming. But unfortunately he failed to give any warnings to anyone. Due to this Gilbert got hurt and suffered with several injuries. Court had also find out that there was a gap between the footplate and coaming and so this was the sign which should have given to all the people swimming in the pool. Even this was accepted by Baker that the bolts were not adequately tightened. He had noticed himself that the ladder needed an inspection just before the accident. But unfortunately he had failed to do so and ultimately Gilbert got injured. This case was very different than the case examples which were given above. In the above cases occupiers were not at all aware about the defect in their premises. If they were aware that some signs of warnings must have been given by them to the plaintiff. In this case Baker was aware about the situation but still his dint informed about it to all the people. So he was wrong in this case and had breached the duty of care, He was proved negligent in this case and so the Court had dismissed the second ground of appeal and had also proposed that the appeal should be dismissed with costs.[8]

References 

Baker G, Gilbert G and Petersen S, 'Book Reviews' (2001) 60 Art Journal

Baker R, The Norton Book Of Light Verse (Norton 1986)

Baker V Gilbert' (prezi.com, 2016) <https://prezi.com/-_yutnr81lge/baker-v-gilbert/> accessed 24 September 2016

'BAKER V. Gilbert, Francis, Baker Assoc., Inc' (Casetext.com, 2016) <https://casetext.com/case/baker-v-gilbert-francis-baker-assoc-inc> accessed 24 September 2016

Barret R and Daudon M, 'Transformation Of Acridines And Azepines Into The Corresponding 3-Oxo-Heterocycles By Means Of Hypervalent Aromatic Iodine Compounds' (1991) 122 Monatshefte f�r Chemie Chemical Monthly

Markesinis B, Deakin S and Dias R, Tort Law (Clarendon Press 1994)

New South Wales Court Of Appeal' (https://www.vrlaw.com.au, 2016) <https://www.vrlaw.com.au/cases/pdfs/200403010934400.gilbert.pdf> accessed 24 September 2016

'Tort: Negligence: Proximate Cause' (1904) 3 Michigan Law Review.