What duty of care do property owners owe to visitors?

Date: Feb 03, 2014
Document Type: Newsletter

In law school, one of the first cases many students would encounter is that of Donoghue v Stevenson [1932] AC 562, which was a matter that established the principle that one person owes another a duty of care – paving the way for the concept of modern negligence.

The basic facts of Donoghue v Stevenson involved Mrs Donoghue consuming a bottle of ginger beer with a snail in it. Mrs Donoghue felt ill and bought an action against the manufacturer, Mr Stevenson. The House of Lords found for Mrs Donoghue and ruled that it was reasonably foreseeable that an injury may be suffered due to the acts or omissions of Mr Stevenson. Lord Atkin set out the duty by saying (at 580): “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”

Reference to ‘neighbour’ in this instance is broader than the people in the immediate vicinity, with Lord Atkin observing that ‘neighbour’ in a legal context are (at 580) “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”

The decision in Donoghue v Stevenson established the general laws of duty of care under negligence in relation to occupier’s liability – meaning that a person who is an occupier of private property has a duty to take reasonable care in the preventing of foreseeable risks of injury to anyone who comes onto the land or premises.

Who is an occupier?
An occupier is someone who ultimately decides who to let in, or exclude from the land, building or premises in their possession.

When determining the liability of an occupier, the consideration is whether the risk of injury is real, and what a reasonable owner or occupier would do under the circumstances in the prevention of injury.

Can a person still be liable for the injuries caused by a trespasser?

How a person enters into the land may not determine whether they are owed a duty of care (see Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614; Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479). However, the situation that gives rise as to how a person entered into the premises may still be a consideration.

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