2.1.

4 Occupiers’ liability

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Judicial notes:

1. The liability of occupiers is addressed by Part IIA of the Wrongs Act1958. 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 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 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. 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:

First, was the defendant in breach of the duty of care which, as occupier, that [it/he/she] owed
the plaintiff?
Second, was any breach of duty a cause of the accident and injury to the plaintiff?

5. 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 Act1958. 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.[1]

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 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 top of this page) 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 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 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.[2]

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].[3]

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 notes:

1. 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 2.1.4 Medical negligence .
2. If the case is not one to which Part X of the Act applies – see paragraph 1 of the first Judicial Note
on this page – paragraphs 25-32 below should not be used. Instead, use paragraphs 110-114 in 2.1.2
Industrial accidents.

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
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.

[1] 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.

[2] See Miller v Miller (2011) 242 CLR 446 in which the High Court dealt with the coherence
between a proscribed activity (criminal activity) and the imposition of a duty of care on a tortfeasor.

[3] Note: Respecting the duty to warn, see Wrongs Act, s 50.

Last updated: 8 September 2016

Note: This charge is a guide only, and may require modification to fit the facts of an individual case.

In This Section See Also

2.1.4.1 Landlord's liability 2.1 Negligence

2.1.1 Transport accidents

2.1.2 Industrial accidents

2.1.3 Bullying/harassment/stress claims

2.1.5 Medical negligence

2.1.6 Professional negligence

2.1.7 Manufacturers and importers

2.1.8 Negligence defences

2.1.9 Multiple defendants, with and without

contribution proceedings