- Supermarkets and Shopping Centres;
- Sporting venues;
- Swimming pools;
- Building sites;
The list is really endless.
On occasions, a person might be entitled to enter someone’s property or undertake an activity on the property because of a contract such a when the person buys a ticket to a concert or pays for a recreational course. The ticket will sometimes have terms and conditions limiting the venue operator’s liability to pay damages to a patron.
On other occasions, an injury can be caused by the activities of a venue patrons not controlled by the venue operator eg patrons at a hotel.
Whether you can claim damages for injuries suffered in such circumstances depends on the facts of each case.
Duty of Care
In many cases, the visit is for reasons which benefit the owner or person in control of the venue eg if you are shopping or going to the cinema. Sometimes you are simply a visitor eg attending a building site to speak to a friend, and on other occasions you may have no reason to be on the site and hence you are a trespasser.
Since 1987, the law imposes a duty on a person having occupation and control of the property to take reasonable care to avoid exposing persons lawfully entering the property to a foreseeable risk of injury arising out of the condition of the property or out of a danger due to the state of the property or anything done (or not done) on the property.
The particular risk of injury from the hazard must be reasonable foreseeable. In other words, the risk must be one which was known or which ought to have been known by the person having occupation and control of the property.
Legislation in Western Australia outlines what action must be taken by the person in occupation and control of the property to satisfy the duty owed to the person lawfully on the property. Each claim will be considered on its merits but the court will determine if there is evidence to satisfy various tests. The probability of injury from the harm must have been sufficiently serious that some action should have been taken by the person in control of the property (without the benefit of hindsight), to eliminate or reduce the hazard. The burden in terms of cost, inconvenience etc on the person should also be considered.
Finally, injury suffered by the person must have been caused by the occupier failure to take proper care and again, there are various tests for determining this “causation” issue.
For general comments on damages go here .
The legislation outlines thresholds and caps relating to the assessment of these claims, which are basically the same as claims made by road accident victims. For more information, go here. Occupier liability claims have a threshold for non pecuniary loss/general damages ($21,000 in 2017/18) which is phased out for claims above $84,460. The statutory formula is a little complicated but basically, there are four rules which apply after the Judge has assessed the persons general damages for pain and suffering;
- where damages are assessed at below $21,000 no damages are payable;
- where damages are assessed at between $21,000 and $62,500, the threshold $21,000 is deducted from the amount assessed by the Court to determine the amount payable;
- where damages are assessed at between $62,500 and $83,500, a threshold amount continues to be deducted but the amount tappers to zero as the assessed damages approached $83,500;
- where damages are assessed at an amount above $83,500, there is no deduction and damages are payable in the full amount.
and there is another threshold for gratuitous services ($6,500 for 2017/18). In terms of economic loss, the same cap applies to road accident victims.