Review of the Carriers and Innkeepers Act 1958, May 1998Chapter 7 – Comparison With Other States[Return to Table of Contents]OVERVIEW7.1 The majority of the Australian States and Territories have legislation similar to the Victorian Act. The relevant Acts are:
7.2 The first three Acts deal exclusively with the relationship between innkeepers and their guests. The Tasmanian Act and the WA Act primarily govern licensed premises, and deal only incidentally with liability for the property of guests. However, the WA Act is more restricted than the Tasmanian Act, as it deals only with property which is lost or damaged on licensed premises, while the Tasmanian Act is not so limited. 7.3 In South Australia, legislation governing innkeepers’ liability was repealed by the Liquor Licensing Act 1985 (SA), and has not been replaced. Queensland’s legislation was repealed by the Liquor Act 1992 (Qld), and also has not been replaced. 7.4 This Chapter outlines the relevant provisions in the Acts listed above, and compares those Acts to the Victorian Carriers and Innkeepers Act 1958 ("Victorian Act"). "INN" AND "INNKEEPER"7.5 In the ACT, an "inn" is "any hotel, inn, tavern, public-house or other place of refreshment", and the word "innkeeper" means the "keeper of any such place".[257] The ACT definition does not oblige an innkeeper to provide sleeping accommodation where so required, as does the Victorian Act. The ACT definition is therefore very broad, arguably even broader than the common law definition. On the basis of this definition alone, the ACT Act appears to apply even to restaurants. However, the broad definition of inn is restricted by the definition of "guest", discussed below. 7.6 The NT Act uses the expression "hotel" rather than "inn". A "hotel" is defined as including "a common inn", and further includes "any premises used for the purposes of providing board and lodgings for members of the public as a commercial enterprise and includes a boarding-house, guest-house and lodging-house". Expressly excluded from the definition are caravan parks, tents, mobile homes or cabins.[258] The definition therefore extends the common law definition, and is broader than that in the Victorian Act, as it expressly includes any commercial enterprise providing board and lodgings for the public. Unlike the common law and the Victorian Act (which is based on the common law), the NT Act seems to apply even to boarders and lodgers, so overcoming the difficulties due to the distinction between guest and lodger at common law.[259] Further, the NT Act usefully nominates types of accommodation excluded from the operation of the Act.[260] 7.7 In NSW, an "inn" means a "common inn", or in other words, an "inn" as defined by the common law. An "innkeeper" is the keeper of an "inn".[261] 7.8 The Tasmanian Act includes a definition for an "accommodation provider", rather than an innkeeper. An accommodation provider is a person who is the holder of an accommodation licence or permit, or who provides tourist accommodation under the authority of a general accommodation exemption. "Tourist accommodation premises" are those premises specified in an accommodation licence or an accommodation permit, or in which tourist accommodation is provided under the authority of a general accommodation exemption.[262] The Tasmanian Act is therefore more limited than the common law, which applies to innkeepers irrespective of whether they hold a licence or not. The Tasmanian Act may also be more limited in its application than the Victorian Act, as it applies only to premises that are licensed as tourist accommodation premises. This would depend on the application of the licence system. It is not clear from the Act whether such establishments as guesthouses, bed-and-breakfast operations and other smaller accommodation establishments would be "tourist accommodation premises" under the Act. 7.9 The WA Act applies only to "licensed premises", which are those premises specified by the relevant authority in relation to a permit or licence.[263] The WA Act is perhaps the most limited in its application, as it is restricted to establishments that have been granted a liquor licence. This indicates the problems that may arise by combining legislation on innkeeper’s liability with legislation governing licensed premises. "GUEST"7.10 The ACT Act does not include a definition of "guest". The common law definition therefore applies.[264] 7.11 In the Northern Territory, a person is a "guest" only where sleeping accommodation has been engaged by or for him or her.[265] This definition is to the same effect as that in the Victorian Act. The definition restricts the common law meaning of guest as, at common law, it is no longer necessary to engage sleeping accommodation to be a guest.[266] 7.12 In NSW also, a traveller is deemed to be a "guest" only where sleeping accommodation at the inn has been engaged by or for him or her. As noted above, at common law a person need not engage sleeping accommodation to be considered a guest. The Act further specifies when a traveller becomes a "guest" and when he or she ceases to be one, according to the traveller’s entitlement to use the sleeping accommodation as a traveller. In short, a traveller becomes a guest on the day on which he or she is entitled to use the sleeping accommodation, and ends on the day when he or she ceases to be so entitled.[267] This is perhaps to the same effect as the Victorian definition of guest. As discussed in Chapter 6, the definition is unclear in this respect, as it may be argued that a traveller is entitled to "use sleeping accommodation" on the day that he or she checks out, as he or she was entitled to use that accommodation for part of that day, albeit not for sleeping. However, it may also be argued that such an interpretation places an unfair burden on the innkeeper who will remain liable even after the guest checks out at, say, 10am, if the property remains on the premises. 7.13 In Tasmania, a "guest" is a person who is temporarily absent from his or her usual residence, and who has engaged sleeping accommodation or on whose behalf sleeping accommodation has been engaged, at tourist accommodation premises.[268] The Tasmanian definition is therefore similar to that in the Victorian Act. The primary difference is the inclusion of the requirement that a person be temporarily absent from his or her usual residence. This aspect of the definition was no doubt introduced to overcome the problems in the common law in relation to the requirement that a person traditionally had to be a "traveller" to be a guest.[269] While the common law has now accepted that even a local resident dropping in to an inn for temporary refreshment may be a guest, the Tasmanian Act prefers the traditional requirement that a person must be away from his or her home, and therefore a traveller, to be a "guest". 7.14 The WA Act applies to "lodgers". A person is a lodger if he or she spent the previous night at the premises, or is booked to spend the forthcoming night there. The licensee or a member of his or her family, or an employee, will not be a "lodger" within the meaning of the Act.[270] The definition of lodger is, despite the different term, to the same effect as the Victorian Act as it requires a person to book overnight accommodation in order to be considered a "lodger". Confusion may arise, however, from the use of the term "lodger" given the problematic common law distinction between lodger and guest. The additional requirement that a lodger not be a member of the hotelkeeper’s family or an employee is in effect a restatement of the common law position. At common law, family and employees are well-recognised exceptions to an innkeeper’s liability. LIABILITYExclusion or preservation of common law7.15 The NSW Act expressly preserves the common law liability of an innkeeper.[271] 7.16 The NT Act expressly excludes the common law liability of a hotelkeeper.[272] However, the Act provides that a hotelkeeper will be generally liable for the loss of or damage to property brought to the hotel by a guest, which is essentially a restatement of the common law position.[273] 7.17 The other Acts are silent on this point, which means that, where the legislation does not cover a particular point, the common law will apply. 7.18 The Victorian Act, like the NSW Act, expressly preserves the application of the common law.[274] The Committee considers that this is one of the major problems with the Act, given the uncertainty of the common law in this area.[275] Liability for goods not in safekeeping7.19 Under the ACT Act, an innkeeper’s liability for loss of or damage to goods not in safe keeping is limited by the Act to $40.[276] In New South Wales, the amount is $100.[277] In Tasmania, the sum is nil.[278] The prescribed amount in Western Australia and Northern Territory is $200.[279] 7.20 The caps on liability in other States are therefore all roughly the same as the $100 cap imposed by the Victorian Act.[280] It seems that all of the sums prescribed by the Acts are as outdated as that set under the Victorian Act. The Committee considers it preferable to set a cap on liability which cannot be outstripped by inflation, by using a multiple of the daily tariff of an accommodation establishment.[281] Statutory notice required7.21 In all of the States and Territories with relevant legislation, the limitation of liability is subject to the display of a notice as prescribed by the various Acts.[282] In New South Wales and the Northern Territory, the notice is included as a Schedule to the Acts, while in Tasmania the notice must be in a form approved by the Commissioner.[283] In the ACT the notice must set out the provisions of section 4 of the ACT Act.[284] In WA, the notice need not be in any particular form but must indicate that liability may be limited to the prescribed amount.[285] All of the Acts require that the notice be conspicuously displayed on the premises.[286] 7.22 In this respect, the Acts are identical to the Victorian legislation.[287] The Committee considers it desirable that liability be subject to the conspicuous display of a prescribed notice. Guests are in this way made aware of their rights and obligations under the Act in respect of loss or damage to their property.[288] Liability for goods in safe keeping7.23 In all of the States and Territories with relevant legislation, liability is unlimited where property is deposited with an innkeeper, or his or her servants, for safekeeping.[289] In all of the States and Territories except Western Australia, the innkeeper may require the guest to place the goods in a sealed container.[290] In Western Australia, there is a broader obligation that the lodger must have complied with any requirements of the licensee with respect to safekeeping.[291] 7.24 In New South Wales, the Australian Capital Territory and the Northern Territory, liability is also unlimited where property is offered to the innkeeper for safekeeping and was refused, or the guest was unable to deposit the goods for safekeeping due to the default of the innkeeper.[292] 7.25 The obvious difference between these Acts and the Victorian Act is that liability in Victoria for property deposited for safekeeping is not unlimited, but is subject to a $2000 cap. The Committee considers that the States should, as far as possible, be in line with one another, and that the cap on liability in Victoria in this respect should be abolished.[293] 7.26 The Victorian Act also provides for liability, in line with the Acts in New South Wales, the Australian Capital Territory and the Northern Territory, where property is offered for safekeeping and is refused, or the guest is unable to deposit the goods for safekeeping due to the innkeeper’s default. However, in Victoria the innkeeper may refuse to take property into safekeeping provided she or he has a reasonable excuse for doing so.[294] The Committee considers that the extension of liability is reasonable, as the innkeeper should be liable where he or she offers a safekeeping service but has wrongfully refused to take custody of goods offered for safekeeping. However, the Committee prefers the Victorian approach of allowing an innkeeper to refuse to take custody of the property "on reasonable grounds", as the innkeeper should not be obliged to accept custody of goods which are, for example, dangerous, of excessive value or too large to be placed in safe custody.[295] The Committee also considers that an innkeeper should have the right to inspect the property, as provided for in a draft international code on this subject.[296] No limitation where innkeeper negligent7.27 All of the Acts under discussion provide that the limitation on liability does not apply where the damage to or loss of a guest’s property is due to the default, neglect or wilful act of the innkeeper or his or her servants.[297] 7.28 The Victorian Act is identical in this respect. The Committee holds the view that the imposition of liability on innkeepers for damage or loss caused by their negligent or wilful acts is fair.[298] Further, the Committee notes that to attempt to exclude liability for negligent acts may be in breach of State and Federal fair trading legislation.[299] Defences7.29 Most of the Acts are silent on the subject of defences, with the result that the common law defences probably apply. However, the NT Act specifically provides that a hotelkeeper will not be liable where he or she establishes that the loss or damage is due to:
7.30 These defences mirror those available at common law.[301] As at common law, the NT Act places the burden of proof of these defences on the innkeeper. It is doubtful whether expressly including the defences in legislation adds anything, as they would be implied by the common law. However, it was necessary to include them in the NT Act as that Act expressly precludes the application of the common law relating to innkeeper’s liability. If, as the Committee recommends, new legislation is enacted in Victoria which expressly excludes the operation of the common law, it will be necessary to include specific defences in the new Act. The Committee considers that the above defences are appropriate for inclusion, but that the language should be updated to remove references to any outdated or archaic terms.
7.31 The NSW Act expressly excludes liability where the traveller is not a guest within the meaning of the Act (unless the loss was due to the negligence of the innkeeper or his or her servants).[302] The Victorian Act does likewise.[303] It is doubtful, however, whether such a provision is necessary. The liability provisions only apply to the property of a "guest" (or "lodger") within the meaning of the various Acts, and therefore the innkeeper would not be liable if a traveller was not a "guest", even without such an express provision. Liability for vehicles7.32 In the Northern Territory and in New South Wales, an innkeeper is not liable for damage to or loss of a vehicle brought to the hotel by the guest, or property left in or on the vehicle.[304] The ACT Act also does not impose liability on innkeepers for damage to vehicles or property on or in vehicles.[305] The Tasmanian and WA Acts do not include a provision in respect of damage to vehicles. 7.33 The Victorian Act expressly excludes damage to vehicles.[306] The Committee considers that the most valid argument in favour of an innkeeper not being liable for loss of or damage to vehicles is that most cars are insured by their owners for theft and damage. However, that argument could equally be applied to a guest’s property not deposited for safekeeping. The distinction must be that innkeepers are in a better position to protect property which is inside the hotel than in a carpark or in the street, and that the liability for guests’ property generally is a long established and seemingly widely accepted (even by the industry[307]) principle, that it merits special treatment.[308] SUBMISSIONS ON VICTORIA'S ABILITY TO COMPETE7.34 Submissions to the Committee from hotel owners and representatives of the hotel industry were overwhelmingly in favour of retaining the Act unchanged, while modernising the language of the Act. In short, hotel owners were concerned by the possibility of any increase in liability. Hoteliers argued that increased liability would result in increased insurance premiums and high compliance costs, which would be passed on to the consumer, ultimately to the disadvantage of the tourism industry in Victoria.[309] 7.35 One of the primary concerns of hoteliers, therefore, is that any change to the legislation would place the Victorian industry in a different position to the other States. However, as indicated above, Victoria is the only State which has a cap on liability for property deposited for safekeeping. While the Committee understands the concerns of hotel owners in relation to increased exposure, for the reasons discussed at length in Chapter 6, it considers it appropriate for Victorian hoteliers to be subject to unlimited liability for property in safekeeping in line with their interstate counterparts. 7.36 The remaining issue with liability then, is liability in respect of property not deposited for safekeeping. As outlined above, the legislation in other States and Territories imposes a cap on liability that is roughly equivalent to the Victorian limit. Again, hotel owners are opposed to any change of this limit on liability for the reasons given above.[310] The Committee notes the concerns of the hotel industry, but considers the sum of $100 to be outdated for the reasons discussed in Chapter 6. An alternative method of capping liability favoured by the Committee is discussed in Chapter 10.[311] INNKEEPER'S LIEN7.37 The innkeeper’s lien has been abolished in NSW[312], and retained in the NT Act.[313] The ACT and Tasmanian Acts are silent on the issue. 7.38 The Victorian Act has also abolished the innkeeper’s lien.[314] As outlined in Chapter 5, the Committee considers that innkeepers and their guests should be protected from the uncertainties of the common law, and therefore agrees with the abolition of the common law lien. The Committee holds the view that disputes between innkeepers and guests should be resolved by the application of fair and clearly drafted legislation.
Scrutiny
of Acts and Regulations Committee |
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