2.1.3 Occupiers' liability1
Judicial notes:
1.
The liability of occupiers is addressed by Part IIA of the Wrongs Act 1958. It is at least very
probable, if not certain, that Part X of the Act also applies to such cases, except in the case
of the claims excluded by s45(1) of the Act. Some of the claims excluded are of considerable
practical importance. In particular, the effect of s45(1) (b) is that not only claims against a
negligent employer, but also claims against other persons arising out of a workplace
accident, are excluded from the operation of Part X. Such a person may be an occupier of
premises. See Kidman v Sefa [1996] 1 VR 86 and Spotless Services Australia Ltd v Herbath &
anor (2009) 26 VR 373.
2.
There are difficulties in reconciling Parts IIA and X. The suggested directions attempt to
reconcile those difficulties. Their drafting is not altogether appropriate for those cases in
which Part X does not apply.
3.
Part IIA, inserted by the Occupiers Liability Act 1983, is somewhat confusing. Section 14B(1)
states that the provisions of the Part apply in place of the common law rules which previously
determined the ‘standard of care’ required of occupiers. Part IIA commenced before the
decisions of the High Court in Hackshaw v Shaw (1984) 155 CLR 614 and Australian Safeway
Stores Pty Ltd v Zaluzna (1987) 162 CLR 479. It appears that ‘standard of care’ was an
intended reference to the different duties owed to invitees, licensees and trespassers at
common law, overlaid by the ‘active operations’ conception. By 1987, the reference had
ceased to have meaning. At common law, the ordinary principles of negligence law applied,
although the circumstances of entry continued to be relevant in determining the practical
content of the duty, and breach.
4.
Compatibly with what soon developed in the common law, subsection (3) expresses an
occupier’s duty in the language of the general law of negligence adapted to the situation of
occupancy. Note, however, that the subsection does not apply in the cases described in
subsection (5). In light of the stated purpose of Part IIA, it could have been expected that
subsection (4) would specify matters relevant to determining the standard of care in
particular circumstances. But it says that ‘in determining whether the duty of care…has been
discharged’, consideration must be given to certain matters. The difference between this
provision and s17C of the Wrongs Act 1936 (SA) - which focuses upon determination of the
1
Note: This charge is a guide only, and may require modification to fit the facts of an
individual case
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standard of care – was remarked upon by Redlich JA in Central Goldfields Shire v Haley
(2009) 24 VR 378, 407 [105]. On its face, the matters in subsection (4) are directed to
breach. That makes the opening words of the subsection – ‘without restricting the generality
of subsection (3)’ – difficult to understand. Despite the apparent application of subsection (4)
to breach, both Redlich and Neave JJA said in Central Goldfields that some of the matters
there set out may be relevant to determining the scope of the duty owed: [6], [118]. The
matter is further complicated by the fact that Central Goldfields was not decided as an
occupiers' liability case, so that much of what was said – including the possible application of
the principle in Brodie v Singleton Shire Council (2001) 206 CLR 512 to certain injuries
happening on private land – appears to be obiter dicta.
5.
Subject to the exceptions set out in s 45(1), Part X of the Act applies ‘to any claim for
damages resulting from negligence, regardless of whether the claim is brought in tort, in
contract, under statute or otherwise’. The duty imposed upon occupiers (save for the cases
mentioned in s 14B(5)) being stipulated by s 14B(2), and particular circumstances relevant to
breach being stated by subsection (4), it is doubtful if such a claim should be categorised as
one brought in tort, notwithstanding that, by s 14B(2), ‘(e)xcept as provided by subsection
(1) the rules of common law are not affected by this Part with respect to the liability of
occupiers to persons entering on their premises’. The question then arises whether a claim
against an occupier is a ‘claim for damages resulting from negligence…brought under
statute…’. The probable answer is that a claim governed by subsection (3) should be so
described. The duty imposed is to take reasonable care in all the circumstances of the case.
The matters made relevant to breach by subsection (4) are typically relevant to
determination of liability for negligence. Further, ‘negligence’ is defined by s 43 as ‘failure to
exercise reasonable care’. There is a possible contrary argument. The reference to statute
might simply be a reference to a common law claim for negligence which is permitted by a
statute – for instance, the Transport Accident Act or the Accident Compensation Act; see ss
45(1)(a),(b),(e),(f). But whilst the contrary argument, if accepted, would dispose of
difficulties in reconciling Parts IIA and X, it seems an improbable answer to the problem. In
any event, if an occupiers' liability claim was not a claim for damages for negligence brought
‘under statute’, it might be such a claim ‘brought…otherwise’, though the area of application
of that formula could be debated.
6.
Section 47 says that, except as provided by Part X, the Part is not intended to affect the
common law. Then follow Divisions 2 to 8, of which all but Division 8 touch upon substantive
law. Division 2 is headed ‘Duty of Care’. If s 48, headed ‘General Principles’ were understood
to deal both with the question whether a person falls under a duty of care in particular
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circumstances and, if so, whether the person breached that duty, it would not readily fit with
s 14B(3), which says that an occupier does owe an entrant a duty of care as there defined.
But if s 48 is understood to address breach - by its focus upon failure to take precautions
against risk of harm - then with some difficulty the provisions of s 14B(4) and ss 48(1) and
(2) can be reconciled. The directions below treat ss 48(1) and (2) as going to proof of
breach.
7.
Note: Part XII of the Wrongs Act would appear to apply in cases in which the occupier is a
public authority; see s 80(1). That makes s 83 potentially relevant. Semble, that each of
matters (a) and (b), like (c), is a matter requiring evidence.
8.
Note: Section 14A(a) of the Wrongs Act defines a landlord in certain circumstances to be an
occupier. In such cases, this charge may be adapted by replacing the word ‘occupier’ with
‘landlord’ as appropriate and making limited case-appropriate amendments to the shaded
section between paragraphs 18 and 19. At the end of this section are sample negligence and
breach of contract charges in relation to a claim by a tenant against a landlord. These
charges may need some adjustment so that they reflect the terms of the actual contract
between the parties in dispute.
Questions
Where the defendant's status as the occupier is in issue, add the following shaded section:
1.
Question (1) asks whether the defendant was the occupier of the premises/structure where
the plaintiff alleges [he/she] suffered injury. In this case, if you answer ‘yes’ to question (1)
then you go on to consider question (2).
2.
Whether the defendant was the occupier of the premises where the plaintiff alleges [he/she]
suffered harm is a question of fact for you to determine on the evidence you have heard.
Where the plaintiff's presence on the defendant's premises at the time of injury is in issue, add the
following shaded section:
3.
Question (1) asks whether the plaintiff was on the defendant's premises when [he/she]
alleges [he/she] suffered injury. In this case, if you answer ‘yes’ to question 1 then you go
on to consider question (2).
4.
Question (2) asks whether there was a breach of duty by the defendant of the duty of care
owed by it to the plaintiff which was a cause of accident and injury to the plaintiff. Within
that question there are two sub-questions:
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(a)
First, was the defendant in breach of the duty of care which, as occupier, that
[it/he/she] owed the plaintiff?
(b)
5.
Second, was any breach of duty a cause of the accident and injury to the plaintiff?
In this case, if you are to answer question (2) ‘yes’, you must answer each sub-question
favourably to the plaintiff.
Judicial notes
1.
If the issues raised by paragraphs 1-3 do not arise, then the issue raised by paragraph 4 will
be question (1) and subsequent references to question (2) in these directions should be
amended accordingly.
2.
In an occupier’s liability case – it must be subject to the operation of s14B(5) - the only
relevant duty is that stated in s 14B(3) of the Wrongs Act 1958. See Central Goldfields Shire
v Haley (2009) 24 VR 378; and, in respect of somewhat similar provisions in South Australia,
Neindorf v Junkovic (2005) 80 ALJR 341.
3.
A road authority is not an occupier of a road, and a road is not premises: Roads Management
Act 2004, s 108; and see Central Goldfields as to the position absent that provision.
Duty of Care
6.
The starting point for consideration of question (2) is this: As occupier of the
[premises/structure] the defendant did owe the plaintiff what the law calls a duty of care.
The duty, prescribed by an Act of Parliament, was to take such care as, in all the
circumstances of the case, was reasonable to see that the plaintiff was not 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.2
7.
The plaintiff contends, and the defendant denies, that the defendant breached that duty.
8.
The plaintiff contends, and the defendant denies, that breach of duty was a cause of the
accident and the plaintiff’s injury.
Breach
9.
In deciding what reasonable care required of the defendant, and whether the defendant
failed to take such care, the test is an objective one. You assess the practical content of the
2
Note: The duty is stated by reference to the plaintiff, not ‘any person on the premises’. This
emphasises that the content of the duty, and breach, must be considered in the particular
circumstances of the plaintiff.
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defendant’s duty by reference to the standard of care which you would expect of an
ordinary, reasonable occupier of premises of the type here in question, having regard to all
the circumstances. You judge whether or not the defendant breached its duty by asking:
what would we expect of a reasonably careful occupier in these circumstances? You decide
the content of the duty, and whether the plaintiff has established the breach alleged –
whether it be it by doing something or by failing to do something – by standing in the shoes
of a reasonable occupier before the plaintiff suffered injury, not with the benefit of hindsight.
Judicial note: Paragraphs 10-15 following are appropriate to a case in which Part X of the
Wrongs Act applies. If that is not the situation (see Judicial Note at the start of this subchapter)
omit those paragraphs and the last sentence of paragraph 16.
10.
The Act of Parliament which I mentioned a few moments ago sets out some principles which
you must apply in deciding whether the defendant breached the duty which [it/he/she] owed
the plaintiff.
11.
A defendant is not liable to a plaintiff for not taking precautions against a risk of injury
(‘harm’) unless the risk was foreseeable. What does ‘foreseeable’ mean? It means a risk of
injury of which the defendant actually knew, or one of which [it/he/she] ought to have
known. You will understand, then, that a defendant cannot avoid liability simply by saying
that [it/he/she] did not know of the risk which materialised, if [it/he/she] ought to have
known of that risk. Thus, the plaintiff may satisfy you either that the defendant knew of the
risk, or that a reasonable person in the defendant’s circumstances would have known of the
risk
12.
Next, a defendant is not liable to a plaintiff for not taking precautions where the risk that
injury will eventuate is insignificant. A risk of injury which is far-fetched or fanciful is an
example of a risk which is insignificant. In this case, has the plaintiff satisfied you that there
was a not insignificant risk of injury?
13.
Next, a defendant is not liable to a plaintiff for not taking precautions unless a reasonable
person in the defendant’s position would have taken those precautions. Here again, the
focus shifts away from the defendant to a reasonable person in the defendant’s position. Has
the plaintiff satisfied you that such a person would have taken the precautions which
[he/she] alleges the defendant did not take in this case?
14.
In deciding whether a reasonable person in the defendant’s position would have taken the
precautions, or steps, steps relied upon by the plaintiff, you should consider all the
circumstances which in your judgment are relevant. Parliament has said that you must
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consider particular matters. But Parliament has also said that you are not confined to
consideration of only those matters.
15.
I have referred a number of times to ‘taking precautions’. To be absolutely clear, taking
precautions can include both doing things which were not done and not doing things which
were done.
16.
Deciding what, if anything, a reasonable occupier would do by response to a foreseeable risk
of injury – and thus whether the defendant breached its duty of care to the plaintiff –
depends particularly upon balancing out the probability that the harm would occur if care
was not taken, the likely seriousness of the harm, and the burden of taking precautions to
avoid the risk of harm. Parliament has identified these matters as circumstances which you
must consider.
Judicial note: See s 48(2)(a),(b),and (c), which are in substance very similar to the content of s
14B(4)(a) and (g), though s 14B(4)(g) is in terms more expansive than s 48(2)(c). The direction
above does not mention s 48(2)(d), which is likely to be relevant only in a few cases. A jury should
not be instructed to consider a matter which has no possible application in the particular case. A
possible situation where subsection (2)(d) might apply is if a park was made available for the use
of citizens to play a social game or take a walk. If there was a risk of harm inherent in the design
or make-up of the park, it would be for the jury to consider how the social utility in making the
park available balanced against there being a not insignificant risk of harm to park users.
17.
To give you an example, in a particular case the balancing out might involve a foreseeable
substantial risk of injury, but the likelihood that any injury sustained would not be severe. At
the other end of the spectrum, the situation might be one where there was a foreseeable
small risk of injury of potentially severe injury. In each situation, the jury must decide
whether a reasonable occupier would have taken some, and what, remedial action. In
deciding those questions, the jury must bring to account all other relevant matters, including
the burden on the occupier of taking suitable remedial action.
18.
I have referred a number of times to you considering all the circumstances of the matter,
and have said that Parliament has set out a non-exhaustive list of matters which, so far as
they apply in the particular case, you must take into account. The balancing considerations
about which I have been speaking are important. Other matters which the Parliament has
said you must consider are the circumstances of the plaintiff’s entry onto the premises, the
nature of the premises, the knowledge which the defendant had or ought to have had of the
likelihood of persons being on the premises, the age of the person entering, the ability of the
entrant to appreciate the danger, whether the entrant was affected by voluntary
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consumption of alcohol or drugs, and whether the person entering was engaged in an illegal
activity.
Judicial note: The above direction sets out the matters mentioned in s 14B(4)(b), (c), (d), (e),
(f), (fa) and (fb). But the judge should only mention those matters which are pertinent in the
particular case. Most, but not the matters in (fa), (fb), and (possibly) (e), will be relevant in all
cases. The matters set out in (fa) and (fb) (see s 14G) are made generally relevant in damages
claims for injuries in negligence.
Where each of the matters mentioned in s 14B(b), (c), (d), (e), (f), (fa) and (fb) are relevant, the
following elaborations may be used:
(b)
The circumstances of entry. For example: was the plaintiff’s entry into the premises
consistent with the ordinary conduct of a person entering a supermarket to purchase items
for sale in a supermarket?
(c)
The nature of the premises. For example: [were/was] the [premises/structure] set up in a
manner which invited persons like the plaintiff to enter for the purpose of [purpose] and was
it a common and acceptable set up?
(d)
The knowledge of the occupier. For example: did the defendant appreciate, or should the
defendant have appreciated, that the nature or set-up of the [premises/structure] would be
likely to attract persons like the plaintiff onto the premises?
(e)
The age of the plaintiff. For example: Was the risk of harm greater in the case of an
elderly person, such as the plaintiff?
(f)
The ability to appreciate the danger. For example: was the plaintiff, a child (or person
with a mental impairment) less capable of appreciating the risk of harm than an adult of
ordinary intelligence and powers of observation?
(fa) Intoxication. Was the plaintiff affected by alcohol or drugs? Did the consumption of those
alcohol and drugs affect the plaintiff's capacity to appreciate the risk of harm when compared
with the capacity of an ordinary person unaffected by alcohol and drugs? Did the plaintiff's
level of intoxication contribute to the occurrence of the harm, or was the presence of
intoxication merely incidental?
(fb) Illegal activity. Was the plaintiff engaged in an activity which was illegal when entering the
premises? Was the harm suffered by the plaintiff caused or contributed to by [him/her]
engaging in that illegal activity? 'Illegal' must mean criminal.3
3
See Miller v Miller (2011) 242 CLR 446 in which the High Court dealt with the coherence between a
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19.
You will realise, I am sure, that the matters which Parliament has said you must consider are
matters which you would in any event sensibly consider in coming to a conclusion whether
the defendant breached its duty of care to the plaintiff.
20.
You will realise also that the list of matters does not say what, if anything, the defendant
should reasonably have done in response to the risk of injury. It does not tell you what the
remedial action should be. What the defendant’s reasonable response was is a matter for
your consideration, having regard to all the circumstances of the case.
If the plaintiff alleges negligence via the actions of one or more of the defendant's officers,
managers, foreman, or other employees, add the following shaded section:
21.
The defendant, in a case such as this, is in law responsible for the acts and omissions of its
[officers/managers/foremen] and other employees when acting in the course of their
employment. Any relevant acts or omissions by any such person are to be treated by you as
the acts and omissions of the defendant.
If the plaintiff alleges the breach consists of both a failure to warn and a failure to remove
dangers, add the following shaded section:
22.
The plaintiff alleges, broadly, two areas of breach of duty: First, failing to warn of dangers.
Second, failure to remove dangers.
23.
[Set out competing evidence and arguments].4
24.
The plaintiff must prove, as I have said, not only that the defendant breached [its/his/her]
duty of care to [him/her], but that such breach was a cause of injury to [him/her], if you are
to answer ‘yes’ to question (2). You will understand that the plaintiff does not have to prove
each particular of the breach of duty upon which [he/she] relies. But [he/she] must satisfy
you of at least one breach, and that such breach was a cause of [his/her] injury – not the
only cause, or predominant cause; a cause.
Causation
Judicial note: Another version of the causation direction, in a case to which Part X of the Act
applies, can be found under the causation heading in the Medical Negligence directions.
proscribed activity (criminal activity) and the imposition of a duty of care on a tortfeasor.
4
Note: Respecting the duty to warn, see Wrongs Act, s 50.
8
Judicial note: If the case is not one to which Part X of the Act applies – see paragraph 1 of in the
Judicial Notes to this charge– paragraphs 25-32 below should not be used. Instead, use
paragraphs 101-105 of the Industrial Accidents directions.
25.
I have discussed question (2) with you earlier. When it comes to determining whether there
was negligence on the part of the defendant which was a cause of accident and injury to the
plaintiff, the defendant’s negligence does not have to be the sole cause of the plaintiff’s
injury, loss or damage. It need only be a cause.
26.
There may be many causes of a plaintiff’s injury, loss and damage. But all that the plaintiff in
this case, like any plaintiff, must satisfy you of, on the balance of probabilities, is that the
defendant’s negligence was a cause of the injury, loss and damage of which [he/she]
complains.
27.
As a matter of law, however, before you can be satisfied that the act or omission by the
defendant was a cause of the harm suffered by the plaintiff, you need to be satisfied that,
without the negligent act or omission, the harm would probably not have occurred.
28.
We call this the 'but for' test: unless you can say, 'but for' the negligence the harm would
probably not have occurred, you cannot say the negligence was a cause of the harm.
29.
To take an example away from this case, ordinarily you might conclude that but for a driver’s
negligence in texting whilst driving he probably would not have driven into a pedestrian;
thus his negligence caused the pedestrian’s injuries. But if the facts were that the pedestrian
ran onto the road from behind a parked bus at that very moment the defendant’s car drew
level, so that whether or not the driver was texting the accident would probably have
occurred, a jury might conclude that it could not be said that ‘but for’ the driver texting the
accident would probably not have occurred. In those circumstances the driver’s carelessness
in texting at the time would not be a cause of the plaintiff’s injury.
30.
Causation is not some scientific or philosophical process, but a question of whether you, as
the triers of the facts, conclude that the defendant’s negligence was a cause of the injury.
31.
You might ask ‘Does the requirement that the plaintiff must prove that, but for the
defendant’s negligence, [he/she] would probably not have suffered injury mean that a
defendant’s negligent act or omission cannot be held to be a cause of the plaintiff’s injury if
it and some other cause were jointly sufficient to account for the occurrence of harm to the
plaintiff?’ The answer is ‘no’. The defendant’s negligence in such circumstances is regarded
as a necessary condition of the occurrence of the harm.
Judicial note: The above directions draw upon Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR
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420, [41]-[45], [55] (French CJ, Gummow, Hayne Heydon and Crennan JJ) and Strong v
Woolworths Ltd (2012) 285 ALR 420 [17]-[18], [20] (French CJ, Gummow, Crennan and Bell JJ).
Reference to the application of ‘common sense’ by the jury has been eschewed. Subject to the
possible operation of s 51(2), the causation test is the statutory one imposed by s 51(1) of the
Wrongs Act. The potential area of operation of s 51(2) remains uncertain. The above directions do
not address it.
Judicial note: The charges in this Charge Book do not address either s 51(1)(b) ('scope of
liability') or s 51(2) ('bridging the evidentiary gap'). If either issue arises, the matter is one for the
judge: Powney v Kerang and District Health [2014] VSCA 221. It will be rare that a scope of
liability question will arise in a case falling within an established class. But even there, a novel
situation may arise which will require close consideration of s 51(1)(b): Wallace v Kam (2013) 250
CLR 375.
If the plaintiff’s case relies upon what the plaintiff would probably have done had the defendant
not been negligent, add the following shaded section:
32.
In some cases, in deciding whether the defendant’s negligence was a cause of the plaintiff’s
injury, it is necessary for the jury to decide what the plaintiff would probably have done if the
defendant had not been negligent. This [is/appears] to be such a case. In deciding that
matter, the question is not what some other person, or a reasonable person, would have
done. It is what, in your judgment, this particular plaintiff would probably have done, having
regard to all the circumstances.
If the case requires a direction on onus, add the following shaded section:
33.
Finally, I should say that, in determining the answer to question (2), the plaintiff bears the
onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
Last updated: 24 September 2014
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