Injury or Damage due to Defective Premises

Last updated 28 March 2018

If a person is injured or their property is damaged as a result of some defect in the premises (which includes land), the occupier of the premises might be liable to pay damages to the injured person. The law governing this type of liability is known as the law of occupiers’ liability.

The occupier

An occupier is the person in possession of the premises. The person in possession of the premises has the power to admit or exclude people wanting to enter the premises.

Often, an occupier will also be the owner of the premises, but owning the premises is not the same thing as being in possession of that premises. A landlord owns a rented house, but it is the tenant who has possession of it. Therefore, if someone comes onto the rented premises and suffers an injury, it may be the tenant and not the landlord who will be liable as the occupier. Generally, however, the landlord has the primary responsibility to ensure the premises are safe.

Two or more people can be occupiers. For example, if a couple purchase a home together and live there, they are both occupiers. Similarly, if two or more people sign a tenancy agreement, they are both occupiers.

The person whose business is being carried on in a shop or other commercial premises is the occupier.

Public places, such as playgrounds and parks, are occupied by the local government or other body that exercises control over them.

Occupier’s duty of care

At common law, an occupier owes a duty to take reasonable care to avoid foreseeable risks of injury to entrants.

Breach of duty

In assessing whether an occupier will be liable for injuries sustained by an entrant, a court will next assess whether the occupier has breached their duty of care.

Specifically in respect to occupiers’ liability, reasonable care is the amount of care that an ordinary person of common sense would have taken in the circumstances. There is no hard and fast rule about what amounts to a lack of reasonable care. It depends very much on the nature of the premises, the type of danger and the reason for the entry. A highly polished floor might not be an unusual danger in a ballroom, but it would be in a supermarket. A defective front step would be a danger to most people calling at a private residence, but it would not be so to a tradesman who had been requested to come and repair the step.

Causation

The mere occurrence of an accident is not enough to succeed in establishing that an occupier is liable for any injury that results from that accident. The injured person must also prove causation by establishing that, if the occupier had taken reasonable care, the person would not have been injured.

Specifically in respect to occupiers’ liability, if a danger or risk is obvious, then the occupier may not be liable for any injury. At common law it has been held that an occupier is in most cases entitled to assume that an entrant will take reasonable care for their own safety, and where a risk is obvious to an entrant exercising reasonable care for their own safety, then it may not be necessary for the occupier to warn the entrant about that risk (see Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431).

Landlords

In general terms, a duty of care is owed by landlords to tenants at common law on the basis that there is proximity (or a relationship) between a landlord and tenants, family and entrants onto the property.

However, the duty of landlords (in residential premises) is only to take reasonable care to avoid foreseeable risks of injury from defects of which they are advised or of which they would reasonably become aware by appropriate inspection (see Jones v Bartlett (2000) 205 CLR 166 ).

In addition to the duties owed at common law, a landlord of a dwelling house has a statutory duty under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) to keep the premises in good order and repair.

People entering business premises

An occupier of a business premises is liable to a person who suffers injury on the premises if the occupier failed to take reasonable care to protect the entrant from dangers of which the occupier knew or should have been aware of. The duty of care and standard of care is usually higher where a person enters upon premises for the purpose of a commercial transaction. This stems from the fact that the occupier of the commercial premises is likely to make a profit from the entrant.

This usually includes supermarkets. The occupier of a supermarket must, for example, be taken to be aware that spillages will occur from time to time and should have a system in place to detect and remove spillages as frequently as is reasonably practicable.