MICE INFESTATION

by Michelle Nguyen, Hunt and Hunt Lawyers

After one of its worst wildfire seasons and a global pandemic, Australia is now facing its latest end-of-days challenge: a “monumental” plague of mice.

Millions of rodents are running amok particularly in parts of Australia’s eastern states, with residents sharing horror encounters on a daily basis and the storage industry has also had issues.

So what are a facility’s liability if stored goods are damaged as a result of the mice infestation?

In the event that damage occurs to a Storer’s goods, the Standard Self Storage Agreement provides some protection for the Facility. Assuming the Facility is using the latest version of the Agreement, clause 16 states that:

The Storer acknowledges that to the extent permitted by law, having regard to any non-excludable consumer guarantees under any applicable consumer protection laws (Non-Excludable Guarantees), the Storer’s goods are stored at the sole risk and responsibility of the Storer who, except to the extent of any negligence by the FO, is responsible for any and all theft, damage to, and deterioration of its goods … The Storer, except to the extent of any negligence by the FO, bears the risk of any and all damage caused by flood, fire, leakage or overflow of water, mildew, mould, heat, spillage of material from any other storage space, removal or delivery of the goods, pest or vermin or any other reason whatsoever.

Generally speaking, the Facility will not be found liable to a Storer unless the Facility is negligent or has breached a consumer guarantee under the ACL. Consumer guarantees are a set of rules that apply to goods and services purchased by consumers. The Facility provides a storage service.

At a high level, the service the Facility provides must be: l provided with due care and skill; l fit for any specified purpose (express or implied); or l provided within a reasonable time (when no time is set).

One way the Facility can demonstrate that it provides its

“Millions of rodents are running amok particularly in parts of Australia’s eastern states, with residents sharing horror encounters on a daily basis and the storage industry has also had issues.

services with due care and skill is by taking all reasonable steps to prevent any damage by the mice. For example if the facility has undertaken both trapping and baiting measures to mitigate the degree of the infestation at the facility.

While a Facility’s liability is determined on a case by case basis, we believe that these preventative measures will assist in showing that the facility has taken active steps to try and prevent damage. On that basis, we strongly recommend you continue with your trapping and baiting procedures.

In anticipation of an increase of mice during the winter season, we recommend the facility take any other measures it believes are appropriate to reduce the risk of damage. For example, the facility may send a notice to its storers which: l addresses the current mice problem; l refers to clause 16 in the

Agreement regarding the storing of goods at the Storer’s own risk; and l encourages Storers to make their own arrangements to protect their goods. l