THE OCCUPIER'S RESPONSIBILITIES

People can make a claim for damages for their injuries if they can prove that the injuries were caused by the occupier's negligence [Civil Liability Act 1936 s 20(1)].

In deciding whether the occupier was negligent a court will consider [Civil Liability Act 1936 s 20(2)]:

the nature and size of the premises
the nature and size of the danger
how the person came to be exposed to the danger
the age of the injured person
whether the occupier knew, or ought to have known, there was a danger, or that people were coming on to the property
what had been done to reduce or warn people about the danger
whether it would have been reasonable to expect the occupier to do anything else to reduce the danger
anything else that seems relevant

Prior to 1987 courts looked very closely at how the person came to be on the land when deciding how careful the occupier had to be. As a result of amendment in 1987 to what was then called the Wrongs Act (the current Civil Liability Act), and as a result of a High Court decision in Australian Safeway Stores Pty Ltd v Zaluzna (1990) 162 CLR 479, it is no longer important to classify the injured person as a licensee or invitee.

The court will however take into account how the person came to be on the land in deciding how careful the occupier should have been for that person's safety.

If a person is a trespasser no duty of care is owed [Civil Liability Act 1936 s 20(6)] unless the person's presence was reasonably foreseeable and the dangers were such that precautions should have been taken for his or her protection.

When the occupier is a friend, he or she may be willing to admit negligence in order to help the injured persons but the occupier must be careful not to breach the conditions of an insurance policy. Many policies contain a term forbidding such admissions. In practice, occupiers should get their own legal advice, even if they are insured.

Drakos v Woolworths

A customer slipped on oil spilt on the floor of a supermarket. The supermarket staff gave evidence that there was a plan to regularly inspect the floors and clean any spills. The court decided that the customer had to show not only that she slipped on the oil because the floor was not regularly inspected, but also that if it had been inspected this would have avoided the incident. The claim succeeded but not all of the judges agreed.

Source: Drakos v Woolworths (1991) 56 SASR 431

Demczuk v Polish Society

The owner hired out a hall for a dance. The hirers asked the owners not to apply a sawdust like substance to the floor but the owners did because too much wax had been applied to the floor during polishing and consequently it was sticky. A patron at the dance slipped and injured herself while dancing the polka. The court held the owner responsible, but not the hirers because the hirers had left it up to the owner to prepare the floor for the dance.

Source: Demczuk v Polish Society Don Mikolaja Inc (1987) 46 SASR 223