Injuries at home, on land or other premises

Contributed by RobertGuthrie and current to 27 July 2018

Injuries which occur in the home or on privately-owned land or other premises may come under the area of law known generally as occupier’s liability.

Occupier’s liability deals with the extent to which an occupier of premises is responsible for the safety of others who enter those premises. This section will discuss injuries in the home and in shops, but not injuries to workers in the course of their employment. The latter will be considered separately later.

The Occupier’s Liability Act 1985 (WA) which is discussed below, has simplified the law which deals with personal injuries suffered due to unsafe premises, and clarifies the rights of a person to receive compensation. In Westralian Caterers Pty Ltd v Eastmet Limited (1992) 8 WAR it was held the Occupier's Liability Act 1985 (WA) replaced the former common law rules with a single standard of care in terms of the general duty of care.

Who is an occupier?

The starting point in relation to matters which fall under the Occupier’s Liability Act is to establish who is an occupier for the purposes of the Act. This is important because the Act attaches significant obligations and responsibilities to an occupier.

An occupier is a person who has the power to decide who is and who is not allowed onto the land or premises (see s.2). Usually the occupier will own the premises; however, this will not always be the case. In certain circumstances a licensee or an independent contractor may be considered to be the occupier of premises (see s.6).

A licensee is a person who has permission to use the premises, but who does not own it. An independent contractor likewise may have permission to use land or premises.

In order to determine who is an occupier the legislation looks at who has control of the land or premises when an injury to someone occurs. The person who has control (rather than simply having permission to use the land) will be considered the occupier. In some cases this is not always clear. For example, in the case of a tenancy or sub-tenancy, if the landlord is responsible for the maintenance or repair of the premises, then he or she will also be responsible for any injuries arising from a failure to maintain or repair (see s.9). In most other circumstances, the tenant will be considered to be the occupier, because of the level of control the tenant will have over the land and who is to come onto the premises and therefore responsible for injuries occurring on the premises.

Limits on a landlord's responsibility

In Jones v Bartlett [2000] HCA 56; (2000) 75 ALJR 1 the High Court had to decide whether the owners of a house at Mt Pleasant in Western Australia were liable to the son of the tenants of the house, who injured himself by carelessly putting his knee through a glass door in the house. The claim was bought on the basis that the owners of the home were liable by reason of s.9 of the Occupier’s Liability Act. The injured person alleged that the owners should have had the glass door inspected prior to entering into the lease with his parents and replaced it with laminated safety glass. However, the High Court held that the glass door was, at the time of commencement of the lease, undamaged and in proper working order. The duty to have the glass door inspected was held not to be one relating to maintenance and repair. Accordingly, it is not a duty of the landlord arising under s.9 of the Act. Importantly the High Court held that the tenant was the occupier for the purposes of section 9.

What are the occupier's responsibilities?

Once it is determined who is the occupier, the Act provides that he/she must take all reasonable care to see that a person on the premises will not suffer injury due to the condition of the premises, or due to anything which the occupier has done or has failed to do (s.5). Premises include land, buildings and any other fixed or movable structure, including any vehicle, boat or aircraft (s.2).

If the occupier does not take reasonable care then he or she may have to pay compensation to anyone who is hurt or has property damaged while on the premises (s.5).

In deciding whether the occupier will be held liable in a particular case, the courts will also consider (without lessening the general duty to take all reasonable care):

• the possible seriousness and likelihood of an injury occurring;
• how the injured person came to be on the premises;
• the nature of the premises;
• whether the occupier knew or ought to have known that people were likely to be on the premises;
• the age of the injured person;
• the ability of the injured person to appreciate the danger; and
• how difficult or expensive it would have been for the occupier to protect people from the danger that caused the injury, as compared to the risk of the danger (s.5).

Exceptions

The duty to take reasonable care does not apply to any person who willingly accepts the risks involved in entering premises. Trespassers, in certain circumstances, may be assumed to accept the risk of entry (ss.5(2) and 5(3)).

However, an occupier will be liable for any injuries occurring on premises where she or he has deliberately intended to create a harmful danger, or has acted with reckless disregard for a person’s safety (ss.5 and 8). For example this may occur if the occupier sets a trap or hazard to deter others coming onto their land, rather than creating a barrier or system which is not intended to harm.

The occupier will not be held responsible for injuries or damage due to the negligence of an independent contractor, if the occupier acted reasonably in choosing and supervising the contractor, and in arranging to have the work done (s.6).

An occupier can avoid liability by agreement or contract which excludes liability under the Act. However, the occupier will still be responsible for any person entering premises who is not party to that an agreement, whether or not the occupier was bound to allow entry or use of the premises by that person (ss.5(1) and 7).

Section 10 of the Occupiers Liability Act 1985 (WA) provides that in considering damages to be awarded to the plaintiff the court must consider any contributory negligence of the plaintiff. The onus of proving contributory negligence is on the defendant. Damages are otherwise assessed as in tort.

Compensation for occupier's negligence

The payment of compensation to a person injured where the occupier is negligent is assessed by the courts and will take into account the economic loss sustained, the cost of medical care and the pain and suffering of the injured person. . (See for example Blaine v The Owners of Duesburys House Strata Plan 7239 [2010] WADC 81 – where a Strata Company was held liable for injuries sustained when the plaintiff fell down steep stairs).