The enactment of occupiers’ liability legislation in four Australian jurisdictions between 1983 and 2002 has given rise to important problems about the relationship between the legislation and the common law of negligence. From 2002 onwards, the civil liability legislation has added another dimension of difficulty: the courts have to contend not only with the relationship between each enactment and the common law, but also with that between the two sets of statutory provisions. As the Chief Justice of Western Australia said in Town of Port Hedland v Hodder, in many cases courts are failing to grapple with these issues. In this two-part article the authors explore the relationship between the occupiers’ liability Acts and the common law, and between those Acts and the civil liability legislation. With the aid of comparative insights, and applying principles of statutory interpretation, they offer conclusions as to the way in which occupiers’ liability actions should be pleaded and determined in the four occupiers’ liability Act jurisdictions. Key provisions are gathered together in a table which appears at the end of Part Two of this article.The authors state
Australian Safeway Stores Pty Ltd v Zaluzna (‘Zaluzna’) changed the direction of Australian occupiers’ liability law. Prior to the 1980s, the law in Australia followed the traditional approach of the common law to questions of occupiers’ liability: in the words of the leading Irish text, ‘[t]he law relating to occupiers’ liability for injuries to entrants on their premises represented one piece of dry land which was not swamped when Lord Atkin, in Donoghue v Stevenson, opened the floodgates of the modern law of negligence’. Starting in the 19th century, the courts, concerned to protect the freedoms of the landowner class, had divided entrants on premises into categories. Thus, for example, the duty to an invitee (a person who entered at the invitation of the occupier, express or implied) was to exercise reasonable care to prevent damage from unusual danger of which the occupier knew or ought to have known, whereas the duty to a licensee (a person merely permitted to be on the premises) was the lower duty to warn of any concealed danger on the premises known to the occupier. Other categories included entrants under a contract, where the duty depended on the terms of the contract, and persons who entered as of right, for example under a statutory right of entry. The lowest category of entrant was the trespasser, as respects whom the occupier’s obligation was limited to abstaining from intentional or reckless injury.
Though some courts in the United States had held that the categories were superseded by the general law of negligence, elsewhere in the common law world it came to be assumed that they were too firmly entrenched to be dislodged by judicial decision. The problems were particularly acute in England in the 1950s, as a result of some unsatisfactory House of Lords decisions. Accordingly, England chose the path of statutory reform. The Occupiers’ Liability Act 1957, 5 & 6 Eliz 2, c 31 (‘1957 OLA’) provided that all lawful visitors would henceforth be owed the ‘common duty of care’.
Trespassers thus remained outside the purview of the Act. In contrast, Scotland three years later enacted legislation which applied the same duty of care to all entrants including trespassers. Eventually, after the House of Lords had moved away from the old restrictive rule by holding that trespassers were owed a duty of common humanity, the Occupiers’ Liability Act 1984 (UK) c 3 extended a duty of care to them also. The 1957 OLA has provided the impetus for statutory reform in other parts of the common law world: starting with Hong Kong in 1959, it has been copied in at least 10 jurisdictions and adopted in at least five others. Beginning in the 1970s, Canada developed its own versions of occupiers’ liability legislation: six of the nine common law provinces now have occupiers’ liability Acts. Occupiers’ liability legislation was also enacted in Bermuda and Ireland.
The Australian experience has been different. It was not until the 1980s that occupiers’ liability legislation began to appear, and then only in a minority of jurisdictions — Victoria in 1983, Western Australia in 1985 and South Australia in 1987. In each case, the legislation applies to all entrants, including trespassers, though in Western Australia a lower duty is owed to persons who enter the premises with the intention of committing, or in the commission of, an offence punishable by imprisonment. Prior to this, the High Court had made a determined attempt to overcome the restrictions of the common law in a series of decisions which held that the limitations on the liability of the occupier qua occupier did not preclude the recognition that the occupier might owe a duty of care in another capacity. Though this line of authority was rejected by the Privy Council in 1964, the High Court continued to develop this jurisprudence, especially after the abolition of appeals to the Privy Council in 1975. Ultimately Deane J, in two important judgments, suggested that it was no longer necessary to distinguish between the occupier’s special duty and the ordinary duty of care: the two streams of authority had become one, and all that was necessary was to ask whether the occupier owed a duty of care under the ordinary principles of negligence. This was the view ultimately adopted by the majority of the High Court in Zaluzna.
This decision, it might have been thought, rendered the Australian legislation unnecessary: proposals for legislation in New South Wales and Tasmania were abandoned, although occupiers’ liability legislation was unexpectedly inserted in the Civil Law (Wrongs) Act 2002 (ACT), a package of consolidating legislation and reform measures enacted in response to the Review of the Law of Negligence: Final Report (‘Ipp Report’). Since 1987, it is the common law of negligence that has made the running in questions of occupiers’ liability. The principles initiated by Zaluzna have been developed by a series of High Court decisions, and it is the common law which is now the chief focus of the leading texts.
However, in the jurisdictions with an occupiers’ liability Act (‘OLA’), these developments are only of indirect relevance. The OLAs generally say that the provisions of the Act apply in place of the rules of the common law. The courts have had to develop the law by the processes of statutory interpretation, and the common law jurisprudence is at best only indirectly relevant. The OLAs, however, only apply to the extent that they say they apply. The boundaries of the legislation have to be carefully observed, and in areas outside those boundaries the general law of negligence takes over. It has sometimes been said that it is not important whether the Act or the common law applies, because the common duty of care under the Acts is so similar to the duty of care which applies under the general law of negligence. Not everyone agrees, however. Buss JA of the Western Australian Court of Appeal has been a leading figure in highlighting the problem of these boundary disputes. In Department of Housing and Works v Smith [No 2], his Honour drew attention to the unsatisfactory nature of the relationship between the Occupiers’ Liability Act 1985 (WA) (‘WA OLA’) and the common law of negligence, in particular the juridical basis of the occupier’s duty of care, and said:
It is unnecessary to resolve the issue in the present case. However, the true position should be determined by this court in an appropriate case. The unsatisfactory state of the law … must not remain unresolved indefinitely.
The authors agree with the view of Buss JA that it is important to determine the juridical boundaries of the OLAs, and this is the problem that is discussed in Part One of this article. However, this is not the end of the story. The civil liability Acts (‘CLAs’) enacted in Australian jurisdictions in 2002 and 2003 have added another dimension of complexity to Australian occupiers’ liability law. This problem is unique to Australia because no other common law jurisdiction has equivalent legislation. In nearly all cases the CLAs have implemented a recommendation of the Ipp Report that the factors which should be taken into account in determining whether a reasonable person would have taken precautions against the risk of harm should be set out in statutory form. So, in the OLA jurisdictions, there is a potential conflict of statutory factors: does one set of factors apply to the exclusion of the other, or do the courts take an eclectic approach and apply both? These issues are discussed in Part Two of this article.