NEGLIGENCE. OCCUPIER’S LIABILITY. INJURY. ON THIS DAY IN 1987, the High Court of Australia delivered Australian Safeway Stores Pty Ltd v Zaluzna  HCA 7; (1987) 162 CLR 479 (10 March 1987).
An occupier of premises owes a duty of care under the ordinary principles of negligence to take reasonable care for the safety of a person who enters the premises, irrespective of whether they are an invitee, trespasser or licensee.
Per Mason, Wilson, Deane and Dawson JJ at 488:
“We think it is wholly consistent with the trend of recent decisions of this Court touching the law of negligence, both in this area of an occupier’s liability towards entrants on his land and in the areas which were the subject of consideration in San Sebastian Pty. Ltd. v. Minister Administering the Environmental Planning and Assessment Act 1979  HCA 68; (1986) 68 ALR 161 and Cook v. Cook  HCA 73; (1986) 61 ALJR 25; 68 ALR 353, to simplify the operation of the law to accord with the statement of Deane J. in Hackshaw, at pp.662-663:
‘… it is not necessary, in an action in
negligence against an occupier, to go through the
procedure of considering whether either one or
other or both of a special duty qua occupier and an
ordinary duty of care was owed. All that is
necessary is to determine whether, in all the
relevant circumstances including the fact of the
defendant’s occupation of premises and the manner
of the plaintiff’s entry upon them, the defendant
owed a duty of care under the ordinary principles
of negligence to the plaintiff. A prerequisite of
any such duty is that there be the necessary degree
of proximity of relationship. The touchstone of
its existence is that there be reasonable
foreseeability of a real risk of injury to the
visitor or to the class of person of which the
visitor is a member. The measure of the discharge
of the duty is what a reasonable man would, in the
circumstances, do by way of response to the
1300 00 2088
ON 23 January 1998, the High Court of Australia delivered Pyrenees Shire Council v Day  HCA 3; 192 CLR 330; 151 ALR 147; 72 ALJR 152 (23 January 1998).
The High Court rejected the “doctrine of general reliance” of Sutherland Shire Council v Heyman (1985) 157 CLR 424 (1985) 157 CLR 424.
1300 00 2088
ON 23 NOVEMBER 2000, the High Court of Australia delivered Modbury Triangle Shopping Centre Pty Ltd v Anzil  HCA 61; 205 CLR 254; 176 ALR 411; 75 ALJR 164 (23 November 2000).
The High Court held that the owner/occupier of a shopping centre did not breach its duty of care to an employee of a tenant who was attacked in the unlit shopping centre car park.
Per Gleeson CJ:
“That an occupier of land owes a duty of care to a person lawfully upon the land is not in doubt. It is clear that the appellant owed the first respondent a duty in relation to the physical state and condition of the car park. The point of debate concerns whether the appellant owed a duty of a kind relevant to the harm which befell the first respondent. That was variously described in argument as a question concerning the nature, or scope, or measure of the duty. The nature of the harm suffered was physical injury inflicted by a third party over whose actions the appellant had no control. Thus, any relevant duty must have been a duty related to the security of the first respondent. It must have been a duty, as occupier of land, to take reasonable care to protect people in the position of the first respondent from conduct, including criminal conduct, of third parties.” at 
“The most that can be said of the present case is that the risk of harm of the kind suffered by the first respondent was foreseeable in the sense that it was real and not far-fetched. The existence of such a risk is not sufficient to impose upon an occupier of land a duty to take reasonable care to prevent harm, to somebody lawfully upon the land, from the criminal behaviour of a third party who comes onto the land. To impose such a burden upon occupiers of land, in the absence of contract or some special relationship …, would be contrary to principle; a principle which is based upon considerations of practicality and fairness. The principle cannot be negated by listing all the particular facts of the case and applying to the sum of them the question-begging characterisation that they are special. … Most of the facts said to make the case special are, upon analysis, no more than evidence that the risk of harm to the first respondent was foreseeable.” [at 35]
1300 00 2088
ON 10 NOVEMBER 2009, the High Court of Australia delivered Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem  HCA 48 (10 November 2009).
Early on New Years day in 2003, Mr Moubarak and Mr Bou Jajem were injured on the premises of Adeels Palace Restaurant in the Sydney suburb of Punchbowl. The men were shot by another patron who had earlier been involved in a dispute on the dance floor, left the premises and returned with a gun.
The men sued for damages, alleging that their injuries were the result of Adeels’ negligence in failing to provide any or any sufficient security on the night of the incident. The men succeeded before the District Court of NSW and NSW Court of Appeal. However, the High Court allowed Adeels’ appeal and set aside the earlier decisions.
The High Court held that the evidence did not establish that action could have been taken to prevent the violent conduct occurring. The court held that the evidence only went as far as showing that the provision of more security might have prevented the damage but did establish, on the balance of probabilities, that it would have prevented the damage.
The court held that it was unnecessary to determine whether or not there was a breach of duty of care because the men had not established that Adeels’s failure to provide any or any sufficient security was a necessary cause of their damage as required under s5D of the Civil Liability Act 2002 (NSW).
1300 00 2088
The NSW Department of Education & Communities from time to time publishes Legal Issues Bulletins.
As at 12 October 2014, there are 54 Legal Issues Bulletins. The bulletins, which are prepared as general information for officers of the department, cover issues such as criminal offences, confidentiality, power to search students, discipline, child protection, police interviews, accidents, personal injury, occupational health and safety, insurance and subpoenas. The bulletins may be accessed by visiting http://www.dec.nsw.gov.au/about-us/information-access/legal-issues-bulletins.
1300 00 2088
ON 14 AUGUST 1997, the High Court of Australia delivered Northern Sandblasting Pty Ltd v Harris  HCA 39; (1997) 188 CLR 313; (1997) 146 ALR 572; (1997) 71 ALJR 1428 (14 August 1997).
A landlord has a duty to its tenants to use reasonable care and skill to provide safe premises. The obligation is limited to repair of defects which the landlord was or should have been aware. The landlord must reasonably respond to any information it receives as to the existence of any defect.
The court held that the rule in the English decision of Cavalier v Pope Cavalier v Pope  AC 428 (a landlord is immune from liability in tort for defective premises causing injury) should no longer be followed in Australian law as it is inconsistent with the principles concerning of duty of care developed since Donoghue v Stevenson.
1300 00 2088
ON 18 JUNE 2002, the NSW Civil Liability Act 2002 was enacted.
The substantive provisions commenced retrospectively on 20 March 2002. There have been successive amendments, notably those which commenced in December 2002 and 2004 and June 2006.
The Act modifies the Australian common law with respect to civil liability claims in New South Wales, except those set out in s3B.
The Act limits the circumstances in which people may recover damages for civil wrongs and the amount of damages and costs they recover.
The significant features of the Act include:
- Statement of principles for determining negligence.
- Modification of causation test.
- No duty to warn of obvious risk.
- No liability for materialisation of inherent risk.
- No liability for harm suffered from obvious risks of dangerous recreational activities.
- No duty of care for risk warning of dangerous recreational activity.
- Standard of care for professionals.
- Contributory negligence can defeat a claim.
- Fixing damages for economic and non-economic loss, including thresholds, discounts and maximum limits.
- Limiting interest.
- Restrictions for persons in custody.
- Restrictions for mental harm.
- Allocation of proportionate liability for concurrent wrongdoers.
- Limiting liability of public authorities.
- Restricting recovery for intoxicated persons.
- Exclusion of liability for persons acting in self defence, good Samaritans, food donors or volunteers.
- Apologies not to affect liability.
- Limiting damages for birth of a child.
- Exclusion of liability for trespass or nuisance by ordinary use of aircraft.
- Costs restrictions.
The Act does not apply to claims (or parts of claims) regarding:
- Intentional acts with the intent to cause injury or death or sexual assault or other sexual misconduct.
- Dust diseases.
- Motor Accidents and public transport accidents.
- Workers, Victims and Sporting Injuries compensation.
1300 00 2088