1.-Occupiers-Liability PDF

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Occupiers Liability Occupier’s Liability – Topic Overview

1. Historical Introduction 1.1 The different categories of entrant in English law

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1.2 Australian Common Law Position

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1.3 Difficulties with the common law position

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1.4 Occupier’s liability integrated into general negligence law 1.5 Summary of current common law position in Australia

2. Occupier’s Liability Act 1985 (WA)

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3 2.1 Definitions

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2.2 Application of the statute

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2.3 Duty of care

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2.4 Standard of care (breach)

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2.4.1 Standard of care owed to criminals

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2.4.2 Negligence of Independent Contractors

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2.4.3 Contracting out

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2.4.4 Landlord’s Liability

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2.5 Interaction with Civil Liability Act 2002

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Occupiers Liability

Occupiers’ Liability  

1. Historical introduction Occupiers’ liability was recognised as an independent tort in England in the 19th century. Liability and Standard of care varied with category of entrant: o Invitee, o Licensee o Trespasser  The categories were mutually exclusive.  Lipman v Clendinnen (1932) 46 CLR 55:

1.1. The different categories of entrant in English law  Invitee: o the occupier had a duty to ‘use reasonable care to prevent damage from unusual danger which he knows or ought to know’ (Indermaur v Dames (1866) LR 1 CP 274)  Licensee: o the occupier merely had to warn of any unusual or concealed danger of which he/she had actual knowledge and which would not be obvious to the reasonably careful entrant (Phipps v Rochester Corporation [1955] 1 QB 450)  Trespasser: o the occupier had to refrain from doing harm wilfully or with reckless disregard for the trespasser’s safety. There was no duty to protect the trespasser from concealed dangers (Robert Addie & Sons (Collieries) Limited v Dumbreck [1929] AC 358).

1.2. Australian case-law pre-Zaluzna  Adopts the threefold classification of entrants outlined above: o Public Transport Commission (NSW) v Perry (1977) 137 CLR 107.  ‘any duty owed by the owner or occupier to the injured person in respect of his injuries must be found… in the legal relationship of the injured person to the occupier’. 1.3. The High Court finds the Anglo-Australian categories problematical  Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234 o ‘The problems involved in the former approach included the rigidity of the classification of entrants, and the artificiality of distinguishing between the static condition of premises and activities conducted on the premises’.  Hackshaw v Shaw (1984) 155 CLR 614 o ‘[There are] significant areas in which it would be more than somewhat unreal and quite unjust to determine the existence and content of a duty of care by reference to whether an Aboriginal plaintiff, to whom notions of personal ownership or occupation by others of particular parts of his communal environment are likely to be culturally incongruous, came upon land which might lie within his inherited spiritual custodianship as ‘invitee’, ‘licensee’ or ‘trespasser’…’.

1.4. Zaluzna: occupiers’ liability is integrated into the general law of negligence  ‘It should now be again accepted in this country that the so-called ‘special duty’ which an occupier of land owes to an invitee is, on analysis, properly to be seen as the ordinary common law duty to take reasonable care’ o (Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7).  ‘All that is necessary is to determine whether … the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to

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Occupiers Liability

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the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk’ o (Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479). ‘The fundamental problem remains the extent to which it is reasonable to require occupiers to protect entrants from a risk of injury associated with the condition of the premises. That problem is no longer addressed by prescriptive legal rules which attempt to establish precise and different standards of care for different classes of entrant’ o (Neindorf v Junkovic [2005] HCA 75).

1.5. Summary of current common law position in Australia  Four factors to consider: 1. Was there the required degree of proximity? 2. Was the injury/damage reasonably foreseeable? 3. Was there a ‘real risk’ of injury/damage? 4. How would a reasonable person have responded to this risk?

2. Occupiers’ Liability Act 1985 (WA) 2.1 Definitions  Section 2 (‘Definitions’) o occupier of premises means person occupying or having control of land or other premises; o premises includes any fixed or movable structure, including any vessel, vehicle or aircraft.

2.2. Application of the statute  No need to establish status of injured person – common law distinctions are abolished  Section 4: o Section 5 to 7 apply ‘in place of the rules of the common law’ o Injury to persons is covered: s 4(1)(a) o Damage to property is also covered, but in limited circumstances: s 4(1)(b) o Danger may be due to ‘the state of the premises’ or anything done on the premises.

2.3. Duty of care  Section 5(1): o ‘An occupier of premises is required … to show … such care as in all the circumstances of the case is reasonable to see that [the entrant] will not suffer injury or damage by reason of any such danger’. o It is irrelevant if the person is a trespasser etc – the duty applies 2.4. Standard of Care (Breach)  Section 5(4): o Lists the factors which are to be taken into account in determining whether there has been a breach of the statutory duty of care o The list is not exhaustive o Even though the duty will extend to trespasser, the circumstances of entry onto the premises and the condition of the premises are among the factors to be considered (Di Vincenzo v McKrill [2005] WASCA 222).

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Occupiers Liability 

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2.4.1. What standard of care is owed to the criminal (eg, burglar)? Section 5(3): o A person entering on the premises with intention of committing an offence only gets the benefit of the standard in section 5(2):  The occupier owes a duty not to create danger with the deliberate intent of doing harm… or to act with deliberate disregard  Equivalent to Addie v Dumbreck. 2.4.2. Negligence of independent contractor Section 6: o The occupier is not automatically liable for the negligence of an independent contractor o But he/she must exercise reasonable care in selecting & supervising the independent contractor.

2.4.3. Contracting out Section 5(1): recognition of the right to contract out o ‘…except in so far as he is entitled to and does extend, restrict, modify, or exclude by agreement or otherwise, his obligation towards that person…’.  Section 7: can only contract out if the entrant is a party to the contract

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2.4.4. Landlord’s liability Section 9: A landlord is liable together with the occupier where the landlord is responsible for the maintenance or repair of the premises.  A landlord is not an occupier: Jones v Bartlett (2000) 205 CLR 166

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2.5. Interaction with Civil Liability Act 2002  CLA defences apply o Section 5O  no obligation to warn of obvious risks o Section 5H  no liability for obvious risks in a dangerous recreational activity (eg, diving into shallow water).

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Occupiers Liability Answering an Occupier’s Liability Question: I What does my client want? a. Apply: i. E.g. Jake is concerned about having to pay tortious damages (money) for the injuries sustained by sleazy (dog bite injury), cheesy (broken leg & property damage) and Cathy (chainsaw lacerations).  [My client] o Wants to escape liability under the OLA o May be able to use the OLA in order to gain [what he wants] II. Does the OLA apply? 1. Is the harm in question covered by the OLA? a. Section 4(1)(a) Injury to person b. Section 4(1)(b) Any property brought onto the premises in the possession and control of that person – whether it is owned by that person or not i. Apply – therefore, the harm suffered by [person] is/is not covered by the OLA 2. Is either party an occupier? a. Section 2 of the OLA = a person having control of the premises 3. What is the premise? a. Section 2 = includes any fixed or moveable structure, including any vessel, vehicle or aircraft i. Apply 1. What is the premise where the harm occurred? 2. Who has control? = the occupier III. As the occupier, does [name] owe a duty to [harmed person]? 4. Section 4(1): Creates the duty: “Occupiers owe a duty to persons entering the property in respect of dangers… which are due to the state of the premises or anything done or omitted to be done on the premises” a. Was [harmed person] entering on the land? b. Was [harmed person] injured by something done or omitted to be done on the land? i. Yes to both = occupier owes a duty to this person IV What is the scope of this duty? 5. Section 5(1): Scope of Duty: “such care as [is reasonable] in all the circumstances” 6. Therefore we must determine what is reasonable a. Section 5(4) of OLA = in determining what is reasonable, consideration should be given to: i. S5(4)(a): Gravity and Likelihood 1. Gravity: a. What is the potential magnitude of the potential harm? 2. Likelihood: a. How likely is this to occur? ii. S5(4)(b): Circumstances of entry 1. Section 5(3): A person entering on the premises with intention of committing an offence only gets the benefit of the standard in section 5(2):  The occupier owes a duty not to create danger with the deliberate intent of doing harm… or to act with deliberate disregard (Equivalent to Addie v Dumbreck.)  Was the plaintiff a trespasser?  Did he/she have intent to iii. S5(4)(c): The nature of the premises 1. What type of premises is it? a. Apply

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Occupiers Liability 2.

What dangers are to be expected on this type of premise? a. Apply i. Is this the type of danger that caused the harm complained?

iv. S5(4)(d): Knowledge of the occupier has (or ought to have had) of person being on the premises 1. Apply v. S5(4)(e): The age of the person entering the premises 1. Apply vi. S5(4)(f): The ability of the person entering the premises to appreciate danger 1. Apply a. Why was the injured person on the premises? i. Was it their job = should know of danger ii. Past experience on that premise vii. S5(4)(g): The burden on the occupier to take reasonable precaution (i.e. not to prevent the harm). 1. Apply – how hard would it have been to protect against the risk? a. Cost, difficulty etc. VII Did the occupier breach his/her duty? (Weigh up the factors above) b. Plaintiff will argue: c. Defendant will argue: d. Assume breach is satisfied VIII Did this breach cause the harm so complained? e. Section 5C of CLA – causation applies i. S5C(1)(a) The fault was a necessary condition of the harm ii. S5C(1)(b) It is appropriate to hold the occupier liable

1. Assume both are satisfied – not being assessed on this aspect IX Defences 7. No duty to warn of obvious risk: CLA s5O 8. No liability for harm from obvious risk of dangerous recreational activities: CLA s5H 9. Contributory Negligence: CLA 5K a. Presumption of contributory negligence for intoxication: CLA s5L

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