Occupier’s Liability

1
Occupiers Liability

• The law of occupiers liability is concerned with
  the duty of care owed by occupiers of premises or
  land toward visitors, whether invited or
  uninvited, who suffer either personal injury or
  property damage during the course of their
  visits.
• An occupier is the person who has control over
  the premises.

2
Occupiers Liability

• Historically, special rules determined who the
  visitor was
• a trespasser one who was there without the
  occupiers permission
• a licensee a person permitted or invited to be
  there
• an invitee the same as a licensee except that
  there must in addition have been something in the
  nature of a business relationship between
  occupier and invitee
• an entrant as of right this covered a
  heterogeneous group of people who had a right to
  go onto the occupiers land, including visitors
  to public facilities such as parks and
  playgrounds, the person who came to read the
  meter and the fireman who came to extinguish a
  fire or
• a contractual entrant these were people who had
  paid to use the occupiers premises, such as
  cinema goers.

3
Occupiers Liability

• This tort is now part of negligence
• CASE Australian Safeway Stores Pty Ltd v Zaluzna
  (1986)
• An occupier is any person who has occupation or
  control, whether it is partial or whole, of land
  or a structure standing on the land
• CASE AC Billings Sons Ltd v Riden 1958

4
Occupiers Liability

• To establish occupiers liability, a plaintiff
  must prove
• the defendant has occupation or control of the
  land or structure and
• CASE AC Billings Sons Ltd v Riden 1958
• the defendant was negligent, i.e., duty, breach
  and damage

5
Occupiers Liability

• Occupiers must take reasonable care and owe a
  common law duty of care to ensure that anyone
  (even trespassers) who comes onto those premises
  is not injured
• CASE Hackshaw v Shaw (1984)

6
Occupiers Liability

• An occupiers potential liability may evolve from
  two main sources
• from the static nature or state of structures on
  the land and
• CASE AC Billings Sons Ltd v Riden 1958
• from activities pursued on the land
• CASE Modbury Triangle Shopping Centre Pty Ltd v
  Anzil 2001

7
Occupiers Liability

• The test for determining what the occupier must
  do to discharge their duty of care is twofold
• Is the risk real?
• and
• What would a reasonable person do about it?
• CASE The Council of the Shire of Wyong v Shirt
  (1980)
• Where the risk is obvious, the duty will be
  minimal
• CASE Romeo v Conservation Commission of the
  Northern Territory (1998)

8
Occupiers Liability

• In Victoria, occupiers liability is also partly
  regulated by statute
• s 14B(3) Wrongs Act
• An occupier of premises owes a duty to take such
  care as in all the circumstances of the case is
  reasonable to see that any person on the premises
  will not be injured or damaged by reason of the
  state of the premises or of things done or
  omitted to be done in relation to the state of
  the premises.

9
Occupiers Liability

• Where the danger is unnatural or hidden, a public
  authority owes a duty of care, at common law, to
  warn persons using the area of foreseeable risks.
• CASE Romeo v Conservation Commission of the
  Northern Territory (1998) - obvious
• CASE Nagle v Rottnest Island Authority (1993) -
  hidden

10
Occupiers Liability

• In order to determine if a public authority owes
  a duty of care, under legislation, a court must
  also take into account
• the financial and other resources that are
  reasonably available to the authority for the
  purpose of exercising those functions
• the broad range of an authoritys activities
• evidence of compliance with general procedures
  and any applicable standards
• (s 83 Wrongs Act)

11
Product Liability

• Defective Products
• Manufacturers liability exists in both common
  law and statute
• CASE Donoghue v Stevenson 1932
• The defect must be hidden and unknown to the
  consumer
• CASE Grant v Australian Knitting Mills 1936

12
Vicarious or employer liability

• A person can be held responsible for the acts or
  omissions of another, even though they may not
  have been personally at fault
• Vicarious liability is a form of strict liability
  which has the effect of making e.g. the employer
  an insurer of the employee

13
Vicarious or employer liability

• An employer may be vicariously liable where an
  employee acting in the course of their employment
  injures another person
• CASE Cassidy v The Minister 1951
• CASE Century Insurance Co Ltd v Northern Ireland
  Road Transport Board 1942
• CASE Deatons Pty Ltd v Flew (1949)
• CASE Starks v RSM Security Pty Ltd 2004
• An independent contractor cannot make an employer
  vicariously liable

14
Vicarious or employer liability

• The 2 main tests used by the courts to determine
  the nature of the relationship are
• the control test
• and (as a supplementary test)
• the integration or enterprise test
• CASE Stevens v Brodribb Sawmilling Co Pty Ltd
  (1986)
• CASE Hollis v Vabu Pty Ltd (trading as Crisis
  Couriers) (2001)

15
Vicarious or employer liability

• An employer who is vicariously liable may have an
  action against the negligent employee for breach
  of a term of their contract of employment
• CASE Lister v Romford Ice and Cold Storage 1957

16
Vicarious liability

• The relationship of principal and agent also
  gives rise to vicarious liability on the part of
  the principal for torts committed by the agent
• CASE Soblusky v Egan (1960)
• CASE Gutman v McFall 2004