Duty – occupiers' liability

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This article is a topic within the subject Torts.

Contents

Required Reading

Sappideen, Vines, Grant & Watson, Torts: Commentary and Materials (Lawbook Co, 10th ed, 2009), pp. 359-62 [11.85-11.95].

Introduction

[1] Traditionally, there have been laws governing the duty of care owed by the occupiers of land to those who enter their land. The laws governing this were formalised in Lipman v Clendinnen[2] and distinguished between different classes of people. However, that approach changed in Australia in two ways:

  • Some of the legislatures passed statutes which dictate that occupiers' liability should be dealt with in the same way as normal negligence.
  • The High Court in Australia Safeway Stores Pty Ltd Zaluzna decided that occupiers' liability should be dealt with in the same way as normal negligence.

Traditional approach

Traditionally, people entering a property were classified by the following categories:

  1. Invitees - people who enter for business purposes.
    • There is a duty of harm to prevent harm from unusual damage (known to the defendant).[3]
  2. Licensees - friendly visitors.
    • There is a duty of care to warn of concealed danger known to the defendant and unknown to the plaintiff.
  3. Trespasser - people who enter the property without permission.
    • Only a duty to prevent reckless or intentional harm
    • Children who trespass may be considered licensees.
    • Repeated or habitual entry will also apply an ordinary duty of care (once it becomes foreseeable and known to the defendant).

Current approach

However, Australian Safeway put an end to this old approach. The ordinary principles of negligence now apply to occupiers' liability and there is no need to classify.

End

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References

Textbook refers to Sappideen, Vines, Grant & Watson, Torts: Commentary and Materials (Lawbook Co, 10th ed, 2009).

CLA refers to Civil Liability Act 2002 (NSW)

  1. Textbook, p 359 [11.85]
  2. (1932) 46 CLR 550
  3. Indermaur v. Dames (1866) L.R. 1 C.P, 274
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