Occupier’s Liability: Duty of Care to Entrants
**Occupier’s Liability**
Occupiers of premises owe a duty of care to people (known as ‘entrants’) who come onto those premises.
Hackshaw v Shaw [1984] High Court of Australia
A farmer, Shaw, caught a thief stealing gasoline from his property. He fired two warning shots at the car. Unfortunately, he shot the thief’s girlfriend (Hackshaw), who was crouching in the front seat below the level of the dashboard. It was accepted that Shaw hadn’t known that Hackshaw was in the car.
Did Shaw owe a duty of care to Hackshaw despite the fact that she was a trespasser on his land? Did Shaw breach a duty of care to Hackshaw when he fired his rifle at the car?
Shaw was liable to Hackshaw for negligence. Shaw owed a duty of care to Hackshaw to avoid injuring her by shooting at the car. As it was night, the risk of injuring someone was significantly higher.
Consolidated Broken Hill Ltd v Edwards [2005] New South Wales Court of Appeal
- The plaintiff was injured while attempting to cycle across a bridge that had no railings and carried a railway spur line across a dry creek bed on land owned by Consolidated Broken Hill (CBH).
- CBH was aware that pedestrians and cyclists used the bridge as a shortcut.
Was the risk of injury so obvious that the defendant company was not in breach of its duty of care?
- By deliberately failing to take steps to prevent members of the public from gaining access, CBH created a situation where people could assume that they could use the bridge as a shortcut. In such circumstances, CBH acted unreasonably in allowing carriages to be parked across the bridge.
Reinforces the principle that occupiers of land owe a duty of care to persons who come onto their land, including trespassers.
In general, an occupier of premises owes a duty to take reasonable care to ensure that anyone on the premises doesn’t suffer injury or damage because of the state of the premises or things done or omitted to be done about the state of the premises.
Risk Includes
- Magnitude
- Cost of removal
- Probability
- Ordinary or mundane
- Obvious
Factors in Deciding a Discharge of Duty of Care
- Gravity/ likelihood
- Circumstances of entry
- Nature of premises
- Knowledge of occupier of the likelihood of persons on their premises
- Age of person entering
- Burden on the occupier of eliminating danger/ protecting the person
Neindorf v Junkovic [2005] High Court of Australia
- A woman tripped and fell on an uneven surface in the driveway of the appellant’s house while attending a garage sale.
- She had not been paying attention to the driveway.
Did the appellant owe the respondent a duty of care, and had there been a breach of that duty?
- The risk was found to be mundane and obvious, so the duty of care that existed did not apply to this situation.
- Contributory negligence applies if the person entering the premises is intoxicated by the voluntary consumption of alcohol or drugs.
The onus is on the plaintiff to establish that the defendant has not taken reasonable care.
e.g. spilling substance in a supermarket, the plaintiff must prove
- What a reasonable system is
- If the system was employable in a reasonable amount of time, etc.
Recreational Providers and Occupiers Generally
Obvious Risk
Recreational activity: Any sport, for enjoyment, relaxation, or pleasure, or performed at a place such as a park, beach, or other public open space.
- Diving from a bridge/ rope swing
- BMX, skating, horse riding, wakeboarding, etc.
Risk warnings