Occupiers of commercial and residential premises owe a duty of care to the people entering their premises to take reasonable care to protect them against injury, damage or loss attributable to the dangerous state or condition of the premises. Occupiers often, and in some cases are legally required to, have insurance that covers them for public liability claims of this nature. This means that more often than not public liability claims are made against insurance companies.
The occupier is the person in occupation or control of the property, which is usually either the landlord or the tenant. Landlords that do not occupy their premises are only liable for any loss or damage caused by their failure to properly maintain and repair the premises. Where the landlord's duty finishes, the tenant's duty usually begins.
The law does not expect occupiers to remove all potential hazards from their land. In assessing the standard at which an occupier must keep his or her premises for the purposes of determining liability, the Courts take the following into consideration:
- The nature and extent of the premises and the arising danger;
- The circumstances in which the person was exposed to that danger;
- The person's age and ability to appreciate the danger;
- The occupier's awareness of the danger and of the person's entry on the premises; and
- Measures taken by the occupier to reduce and warn against the danger.
Some common examples of situations where the dangerous state or condition of premises may lead to liability on the part of occupiers include:
- Slipping or falling on wet floors;
- Tripping on obstacles that have been left in high traffic areas; and
- Poorly maintained equipment that is faulty or malfunctions.
An occupier is required to take reasonable and practicable measures to address the danger in the circumstances. Depending on the situation, this could mean warning people against the danger, taking steps to reduce it or eliminating it all together. Because the reasonable standard of care owed is assessed in light of the particular circumstances, it is possible that an occupier will have fulfilled its duty by taking no measures.
Public liability arises in all sorts of contexts including in shops, sporting fields, hotels, commercial buildings and residential premises. Roads and footpaths however fall into their own category as the Civil Liability Act 1936 excludes road authorities (often local Councils or the State Government) from being found negligent for a failure to maintain, repair or renew the roads. This means that generally speaking, if the Council fails to repair a road defect which causes you to trip, they will not be held liable for your injuries. There are however some specific circumstances where such a claim might succeed, and it is recommended to seek legal advice if you find yourself in this situation.
If negligence is proven, and the occupier does not fall into one of the exempt categories noted above, the types of loss commonly claimed include pain and suffering, medical and treatment expenses, care and domestic assistance, and loss of income. The type and amount of compensation awarded depends on the nature and extent of the injuries suffered and the effect on the life of the injured person.
The law is realistic in its approach to occupiers liability and the Courts have recognised that occupiers cannot be expected to remove absolutely all possible risks. A level of responsibility is imposed on individuals to look after their own safety, which means that not all injuries suffered on someone else's land will result in a successful legal claim against the occupier. It is therefore important to consult a personal injury lawyer before embarking on any claim.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.