← The hardest concepts in Australian law
In one breath
At common law in Australia the liability of an occupier of premises is not a separate regime with its own classes of visitor; it is part of the law of negligence, so the occupier owes a duty to take reasonable care to avoid foreseeable risks of injury to people who come onto the land. The old categories of invitee, licensee and trespasser no longer decide the duty, although the visitor’s circumstances still affect what care is reasonable.
The picture
The partition wall that was knocked down
A house once had three rooms, each with its own rules. One was for invited guests, where the host had to make everything safe. One was for people who merely had permission, where the host had only to warn of hidden dangers. One was for intruders, where the host owed hardly any duty at all. Everything depended on which room the visitor stood in, and the arguments were mostly about which room it was.
The partitions were knocked down. There is now one open room and one rule: take reasonable care to avoid foreseeable risks of injury to those who may come in. Where a visitor stands still matters, but only as a fact bearing on what care was reasonable: a child wandering onto a pool deck is not the same as a burglar, and a paying guest’s expectations are not those of a trespasser at night. The occupier looks at the whole picture, including the likelihood and seriousness of harm, the cost of precautions, and what the occupier knew or should have known.
Where the picture stops working
Knocking down walls did not remove every difference. State and Territory statutes now regulate occupiers’ liability in different ways, for example by dealing with obvious risks, recreational activities or entrants who are committing offences, so the open room may have new fittings in each jurisdiction. The duty also concerns the state of the premises and activities on them, not a guarantee that the premises are safe.
How it really works
- 1Place the rule. The common law approach is the same across Australia, but civil liability legislation in each State and Territory, and in some places specific occupiers’ legislation, modifies it.
- 2Identify the occupier: the person with sufficient control over the premises. More than one person may be an occupier.
- 3Ask whether a duty of reasonable care was owed to the entrant. The entrant’s category no longer settles the question.
- 4Apply ordinary breach principles. Was the risk foreseeable and not insignificant, and would a reasonable person in the occupier’s position have taken precautions, given their burden, the likelihood and seriousness of harm and the entrant’s circumstances, such as age?
- 5Check the legislation for provisions on obvious risks, recreational activities, warnings and contributory negligence, any of which may reduce or remove liability.
Why people get it wrong
- Memorising invitee, licensee and trespasser as the test. They are no longer the way the duty is decided.
- Treating the occupier as an insurer of safety. The duty is one of reasonable care.
- Assuming trespassers are owed nothing. A duty of reasonable care may still arise.
- Assuming a duty to protect against attacks by third parties is automatic. It depends on the foreseeability of the risk and on whether precautions would have made a difference.
- Overlooking contributory negligence, which can reduce the damages.
A worked example
The facts are invented
Tarn Supermarket’s floor near the produce is wet where a refrigeration unit has leaked for hours, and staff have done nothing. Elsie slips and is injured. It does not matter which label once applied to her. The occupier owed a duty of reasonable care, the risk was obvious to staff, the precautions of a mop and a warning sign were cheap, and a court is likely to find a breach.
Change the facts: the same wet floor is in a locked storeroom, where a burglar breaks in and slips. A duty of care may still be owed, but what care is reasonable is quite different, and legislation in some places limits liability to entrants who are committing offences. Change them again: a reservoir is plainly visible and signposted, and an adult swims there anyway. The obvious nature of the risk may defeat the claim, and statutes in some places address obvious risks.
Try it
A visitor is injured on a shop floor that staff left wet for hours without warning. The shop argues that the visitor was a mere licensee, who could only expect a warning of known hidden dangers. How does the argument fare?
Landmark authorities
Read the sources themselves; this list is a starting point.
- Hackshaw v Shaw, (1984) 155 CLR 614
- Australian Safeway Stores Pty Ltd v Zaluzna, (1987) 162 CLR 479
- Modbury Triangle Shopping Centre Pty Ltd v Anzil, (2000) 205 CLR 254
- Neindorf v Junkovic, (2005) 222 CLR 44
Where to go next
More hard concepts in Australia law
- The duty of care and salient features (Tort law)
- Causation and the scope of liability (Tort law)
- The parol evidence rule and the reading of contracts (Contract law)
This page is an educational overview. It is not legal advice and not a substitute for the sources: the statute, the rule, the case itself. Australia is a federation: the Commonwealth, the six States and the Territories each make law, and the High Court is the final court for all of it. The common law, by contrast, is one law across the country. Each page says whether the rule is constitutional, federal or common law shared by every jurisdiction, or State-by-State legislation that varies, and flags where the States and Territories differ. Each page states the usual formulation of the rule and names landmark decisions; check the primary sources of your own jurisdiction before relying on any rule.