HI5018 Introduction to
Business Law
Week 4
Law of Torts (2)
Occupier’s Liability
Occupier’s Liability
 Occupiers must take reasonable care and owe a common
law duty of care to ensure that anyone (even a trespasser)
who comes onto those premises is not injured:
Hackshaw v Shaw (1984)
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Occupier’s Liability
Who is an occupier?
 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:
Consolidated Broken Hill Ltd v Edwards [2005]
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Occupier’s Liability
 This tort is now part of negligence:
Australian Safeway Stores Pty Ltd v Zaluzna
(1986)
 Occupiers owe a duty of care to entrants to
ensure they do not suffer injury on the premises.
 Where the risk is obvious, the duty will be
minimal.
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Occupier’s Liability
 To establish occupier’s liability, a plaintiff must
prove:
 The defendant has occupation or control of the land
or structure; and
 The defendant was negligent,— that is, there was a
duty of care owed that was breached and damage
was sustained by the plaintiff.
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Categories of negligence
Product Liability
(Defective Products)
 Manufacturer’s liability exists in both common law and
statute.
 The defect must be hidden and unknown to the
consumer:
Grant v Australian Knitting Mills (1936)
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Categories of negligence
Defective structures
 Where the premises suffer a defect and it could be
reasonably foreseen that a person could suffer injury
as a result, the builder, architect or engineer may be
liable if the plaintiff suffers damage as a result of the
defect:
Bryan v Maloney (1995)
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Categories of negligence
Negligent misstatements
“a statement of fact, advice or opinion made in
business that is relied upon by another but which is
inaccurate or misleading”
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Categories of negligence
Negligent misstatements
 Duty on the defendant to avoid making careless
statements which cause harm.
 Hedley Byrne v Heller (1964) established that the law
will imply a duty of care in the making of statements.
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Categories of negligence
Negligent misstatements
 A duty of care extends not only to professional
advisers but also to persons who provide information:
MLC v Evatt (1968)
 This duty of care also extends to advice that is given
in ‘serious circumstances’: Shaddock v Parramatta
City Council (1981)
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Categories of negligence
Negligent misstatements
 A duty of care also arises and exists where there is a
‘special relationship’ between the parties:
San Sebastian v Minister Responsible for
Administering Planning and Assessment Act (1986)
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Categories of negligence
Negligent misstatements
 An inadequate response can amount to a negligent
misrepresentation if it is relied upon by the plaintiff:
Pyrenees Shire Council v Day (1998)
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Categories of negligence
Negligent misstatements
 A plaintiff must establish the following to recover damages:
 A duty of care - professional relationship or causal;
 A breach of duty - D ought to have known that P would rely upon
the statement and was requested for a serious purpose; and
 Damage - causal connection between D’s omission and the
damage suffered - the causative element.
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Employer liability
Employer liability or Vicarious liability
 Vicarious liability is a form of strict liability which has
the effect of making the employer an insurer of the
employee.
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Employer liability
Employer liability or Vicarious liability
 An employer may be vicariously liable where an
employee acting in the course of their employment
injures another person:
Cassidy v The Minister (1951)
 The action of the employee must be connected to the
employment:
Deatons Pty Ltd v Flew (1949)
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Employer liability
Employer liability or Vicarious liability
 An independent contractor cannot make
an employer vicariously liable.
 An employer who is vicariously liable
may have an action against the negligent employee for
breach of a term of their contract of employment:
Lister v Romford Ice & Cold Storage (1957)
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Intentional torts
Trespass
 Trespass is a direct interference with the person or
property of the plaintiff by the intentional or negligent
actions of the defendant and is actionable per se
(without proof of damage).
 The defendant must have intended to do the harmful
act.
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Intentional torts
Trespass to land
 Areas covered include:
• entry upon land without permission;
• remaining after permission has expired; and
• leaving things on the land.
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Defamation
What does defamation mean?
 Defamation involves a false statement about a person
that is likely to damage their reputation in the
community.
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Defamation
Defamation action - What is required?
 Step 1: Is the material defamatory?
 The material was defamatory according to its
‘ordinary and natural meaning’ and
Mirror Newspapers Ltd v Harrison (1982)
 in the circumstances was defamatory
Morosi v Broadcasting Station 2GB P/L (1980)
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Defamation
Defamation action - What is required?
 Step 2: Does the material refer to P?
 The statement referred to or identified the plaintiff – or
it can be reasonably concluded that those who know P
would conclude the statement is about P:
E Hulton & Co v Jones (1910)
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Defamation
Defamation action - What is required?
 Step 3: Was the statement published?
 Made known to a third party capable of understanding
the defamatory meaning.
 Step 4: Does D have any defences?
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Miscellaneous torts
Public Nuisance
 An unlawful act which interferes with an enjoyment
or right of the public, of which the plaintiff is a
member, but one where the plaintiff can show that
they have suffered special damage over and above
that of the public.
 The remedy for a plaintiff is usually damages and/or
an injunction.
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Miscellaneous torts
Private Nuisance
 The person who has a legal right to actual possession
(occupier) of the land can complain and must establish:
• indirect interference with the use or enjoyment of
their land by the defendant by things coming on to
the land; and
• damage — either physical damage to land, buildings
or goods or an interference with the enjoyment of
the land.
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Miscellaneous torts
Private Nuisance
 Remedies:
 The usual remedy is an injunction to stop the nuisance.
 Although an alternative remedy to going to court may
be abatement.
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