Eligibility for Occupier’s Liability Claim

To bring a claim for damages, you would need to demonstrate that:

Significant Injury

Whether bodily, psychological or psychiatric, your injury must be assessed by an approved medical practitioner to determine the degree of impairment. The severity of your injury will be examined in accordance with a formula set out by law, meaning that all injuries are subject to the same assessment.

To be considered ‘significant’, your degree of impairment must satisfy a threshold level:

• Physical Injury (other than spinal) – Impairment must be more than 5%
• Psychiatric Injury – Impairment must be more than 10%
• Spinal Injury – Impairment must be 5% or more

The following injuries do not require an assessment:

1. Loss of foetus
2. Loss of a breast; or
3. Psychological or psychiatric injury arising from the loss of a child due to an injury to the mother or foetus or child before, during or immediately after birth; or
4. Asbestos-related conditions

Negligence

To be compensated for an injury sustained on private property, you would need to prove fault on the part of the occupier. To show that an occupier ‘failed to exercise reasonable care’, you must satisfy the following 3 elements:

1) That the occupier owed you a duty of care

In most circumstances, an occupier will owe a duty of care to all those who enter their premises. This means ensuring the area is reasonably safe and taking all necessary steps to minimise the risk of injury where possible.

2) That the occupier breached that duty of care

An occupier can be deemed to have breached their duty of care by failing to taking all practical and reasonable steps to keep those who enter their premises safe from harm.

So what is practical and reasonable? A court will consider what steps a ‘reasonable person’ would have taken in the same circumstances and whether those measures would have eliminated or minimised the risk of injury.

Reasonable Foreseeability

The risk must have been ‘reasonably foreseeable’ meaning that a reasonable person would have anticipated the risk of injury and taken the necessary precautions to avoid that risk eventuating. It is unlikely that an occupier would be liable where the risk was insignificant or there was a low risk of harm materialising.

Importantly, the exact way in which the injury occurred does not have to be foreseeable. It is the general nature of the harm that should be anticipated by a reasonable person in the same circumstances.

Example A store owner fails to provide adequate systems of inspection, which results in a customer falling on a wet floor and injuring themselves. In these circumstances, the risk of harm is foreseeable. It is likely that a reasonable person would have taken precautions to reduce the possibility of an injury occurring. Had the occupier erected a warning sign, the injury might have been prevented.

In deciding how a reasonable person might have reacted, the following 4 areas are considered:

•  How probable was the risk?

If the risk of injury was highly improbable, it would be assumed that a reasonable person would not have taken measures to prevent it.

Alternatively, where a risk is so obvious or is a matter of common knowledge, then an occupier would not have a duty to warn those who enter the premises.

Example A guest at a residential property is dancing on a table. He is injured by a ceiling fan after waving his arms in the air. An occupier could not be expected to warn all those who enter the property of such an obvious risk. It is assumed that guests would already be aware of the potential harm.

• How serious could the potential harm be?

The likely seriousness of the injury is also important when considering reasonable foreseeability. The magnitude may be different for certain individuals, such as small children or the elderly, for example. A higher degree of care is required for those who are particularly vulnerable.

Example Several children are running around at an ‘all ages’ youth disco organised by the local council. A 7 year old boy slips over and suffers a severe leg injury. Given that young children were in attendance, it is likely that a reasonable person would have taken further precautions. Had the event coordinator arranged for targeted supervision, the injury might have been avoided.

• How great would the burden of taking precautions be?

Although a risk may be foreseeable, certain matters such as cost or convenience might make it difficult for an occupier to take the necessary precautions.

Example A guest suffers a significant injury after tripping in the stairwell of her friend’s apartment building. She claims that the fall was due to a lack of slip-resistance on the stairs. An occupier is expected to take all reasonable precautions to minimise the risk of injury. However, an occupier cannot be expected to ensure premises are completely hazard-free. This is particularly true where the likelihood of harm occurring is low and the effort required to remove or minimise the risk is great.

• What was the social utility of the occupier’s conduct?

An occupier’s duty may be lowered if their actions provided a benefit to society. This is rarely applied and only in extreme circumstances is an occupier’s duty discharged.

Example A new gym member suffers a serious back injury whilst performing an advanced abdominal exercise, which was at the direction of a personal trainer. The exercise was not in the program yet the trainer chose to prescribe it to challenge his client. Although physical activity is beneficial, the exercise in question has no benefit to new or inexperienced clients. The risk of harm outweighs the social utility.

Other matters to be taken into consideration when determining whether a breach has occurred are:

• The circumstances of entry
• Who is the entrant and what is their reason for entering the premises?
• The nature of the premises
• What purpose does it serve?
• The occupier’s knowledge of people being on the premises
• Did the occupier know (or should they have known) that people would be on the premises?
• The age of the visitor
• How old was the entrant when the injury occurred?
• The visitor’s ability to recognise the danger
• Was the risk concealed?
• Whether the visitor was intoxicated or engage in an illegal activity
• The burden on the occupier of eliminating the danger
• How quickly and easily could the occupier remove the risk? Would the cost be reasonable?

Trespassers

If a visitor has entered a property without permission or refuses to leave when being requested by the occupier, that standard will be lower than for those who enter the premises lawfully.

Contributory Negligence

A court will also consider whether your actions contributed to the injury. Where you have not taken reasonable care for your own safety, the occupier’s liability is reduced. If you are found to have been extremely negligent, your claim may be dismissed.

In order to establish whether you contributed to the harm suffered, a court will consider what you knew or ought to have known at the time of the incident.

Example A slightly intoxicated bar patron is seriously injured after falling down a dimly lit staircase. The occupier is liable for not ensuring that the stairs within the venue were adequately illuminated. However, their liability is reduced given that the patron is likely to have taken more care had they not been intoxicated.

3) That you have suffered a loss as a result of the breach

Finally, you would need to demonstrate that the occupier’s action (or failure to take action) was the direct cause of your injury. This requires proof that your injury would not have occurred had it not been for the conduct of the occupier.

Example A shopping centre employee is seriously injured after being attacked by 3 assailants whilst walking to his car at night. At the time of the incident, the car park lights had been switched off. Although the shopping centre owes the employee a duty of care, it cannot be said that it’s action directly caused the injury.  That is, the attack may still have occurred had the car park been adequately lit.

Voluntary Assumption of Risk

In rare cases, a claim may be dismissed if the occupier was fully aware of the nature and extent of the risk and voluntarily chose to accept it. The occupier must have had knowledge that there was a possibility of harm occurring. Where the risk was obvious, it is assumed that the occupier was aware of it.

Example A man suffers a serious leg injury at a trampoline center after landing on one of the joins. Upon entering the premises however, he passes several signs outlining the risks and dangers associated with the use of the centre’s trampolines. One of the terms specifically states that by using the equipment, a customer is deemed to have accepted those risks. Given that the visitor had knowledge of the potential dangers and willingly volunteered to use the trampolines, it is unlikely that the centre would be liable.

Damages

Damages are essentially the monetary payment that a court may award to an injured party. The purpose of damages is to compensate for the loss, harm or injury suffered. This applies to pain and suffering, loss of earnings and expenses incurred or future expenses that you may incur because of the injury.

The most challenging aspect is often the inability to carry out your everyday activities. Compensation for loss of enjoyment of life (or pain and suffering) may be available where your injury has affected your ordinary activities.

Typically, the following areas will be taken into consideration:

• Sleep;
• Mobility;
• Cognitive function;
• Self-care capacity;
• Ability to perform household duties;
• Recreational activities;
• Social activities;
• Sexual life; and
• Enjoyment of life.

As it can be difficult to place a monetary value on such matters, a court will often refer to the following when determining the amount of money required to compensate a person for pain and suffering:

• Your pre-injury lifestyle;
• Deprivation of enjoyment of life;
• Psychological distress;
• Previous awards;
• Reasonable needs;
• Community standards.

The maximum amount of damages that may be awarded to a claimant for non-economic loss is $577 050.

 Where to Now?

If you believe that your injury was the result of another person’s negligence, it is critical that you seek legal advice as soon as possible. Your lawyer will need you to provide as much information as possible so it’s a good idea to keep a record of details such as:

1. Conversations you had with the occupier or staff members following the incident;
2. Police statements (if applicable);
3. Hospital or GP visits;
4. Witnesses or other people involved; and
5. Photos of the premises

The key piece of advice from our end is to act immediately by speaking to one of our lawyers today. We will listen, identify your needs and provide you with up-to-date and carefully considered advice based on your individual circumstances.

Our priority is to ensure that your matter is resolved as quickly and efficiently as possible. An out-of-court settlement is ideal however, where a fair agreement cannot be reached, we will assist you in further pursuing your rights in court.

Our extensive experience in litigation will ensure you are provided with expert knowledge and strong representation throughout the entire process. Don’t delay, call us on 1300 057 056