Occupiers’ Liability Flowchart
Occupiers’ Liability is the branch of law that deals with injuries caused by the
condition of the premises or the activities that have taken place on the premises.
Thompson v Woolworths
• Occupiers owe a general duty of care to those who enter upon their land
lawfully Australian Safeway Stores v Zaluzna
• Is there a reasonably foreseeable risk of injury to the visitor? Ie Was the risk of
harm/injury to the visitor or class of persons of which the visitor is a member,
reasonably foreseeable in the circumstances? Romeo v Conservation
Commission
Occupiers’ Liability
Australian Safeway Stores v Zaluzna; Thompson v Woolworths
1. Is the Defendant the occupier of the premises?
Occupier must be a person who
• Owns or is on and
• Controls
the relevant land
Eg tenant, business owner, homeowner
The control exercised over the land is the source of the duty of care owed by the
occupier Thompson v Woolworths
Premises includes land and immoveable objects on it (lifts, escalators, stairs,
driveways , roofing, windows etc) and moveable structures (eg ladders,
scaffolding)
Danger can arise out of the static conditions of the premises or out of the
activities conducted on the land Thompson v Woolworths
2. Was the risk of harm/injury to the visitor or class of persons of which the visitor is
a member, reasonably foreseeable in the circumstances? Romeo v Conservation
Commission
Consider the following:
• The obviousness of the risk ie is it visible and readily apparent?
• The significance of the risk ie Is it the type of hazard commonly found, is it
minor? Neindorf v Junkovic
3. Was the risk of harm of a kind that it was reasonable to expect the occupier to
respond to? Neindorf v Junkovic
• Look at ability of occupier to control or minimise the risk
• Occupiers are under a duty to take reasonable steps to ensure their properties
are free from defects. However there is no such thing as “risk free” premises.
• No duty to remove a minor defect commonly encountered that should be
obvious Neindorf v Junkovic
• Consider the practical realities of responding to a particular hazard and the
reasonableness of the expectation that people will take some level of care for
their own safety Thompson v Woolworths
4. Was the conduct of the Plaintiff on the premises a serious criminal offence and
did that unlawful conduct materially contribute to his/her injury/death?
• S54 Civil Liability Act provides liability is excluded if the conduct of the
Plaintiff was an offence (this could possibly include trespassers).
Duties to Third Parties to Control the Conduct of Others
Modbury Triangle Shopping Centre v Anzil
The general rule is that “one man is under no duty of controlling the other”. Smith
v Leurs
However, in exceptional cases the occupier may be directly liable for their failure,
or the failure of their servants or agents, to exercise care over the conduct of
persons who cause harm to the visitor. Modbury Triangle Shopping Centre v Anzil
1. Is there a special relationship between the Plaintiff and Defendant?
These relationships can create a situation where the Defendant is required to
control the activities of a third party as part of their duty to the Plaintiff:
o Employer-employee
o Hospitals-patients
o Schools-children
o Prisons-prisoners
o Parents-child
Courts will also consider if there is a contract between the Defendant and
Plaintiff and the content of the obligations contained therein Modbury Triangle
Shopping Centre v Anzil
2. If not, the Courts take a multi-factorial approach to evaluate whether it is
reasonable for a duty to be imposed in all the circumstances. Modbury Triangle
Shopping Centre v Anzil
The following factors may point towards the imposition of a duty of care to
control the conduct, including criminal conduct, of third parties:
o High degree of foreseeability and predictability of the risk of harm from
the conduct of the third party to the entrant
o The occupier knows of the risk of harm from the third party and is able to
control or manage the situation
§ Where the harm is caused by the random criminal conduct of
third parties it may be harder for the Plaintiff to prove the
occupier had control.
o There is reasonable reliance by the entrant on the occupier to protect
his/her personal security from a third party’s harmful conduct.
o There is an assumption of responsibility (obligation) by the occupier for
the class of persons that the visitor comes within eg a contract to that
effect
This duty does not extend to occupiers of licensed premises being required to
protect intoxicated patrons from harm caused by self-induced intoxication CAL
No 14 Pty Ltd v Motor Accidents Insurance Board
• Note: s49 Civil Liability Act A person’s intoxication is not relevant to whether
or not the person is owed a duty of care (and the person is exposed to
increased risk because his/her capacity to exercise reasonable care and
skill is impaired due to being intoxicated.
• The fact that at person is intoxicated does not in itself increase or
alter the standard of care owed.
• However no damages will be awarded to the Plaintiff if he/she was
intoxicated unless the injury/death is likely to have occurred even if
he/she had not been intoxicated s50
