Legal Principles that Determine Duty of Care Owed by Occupier
Discuss Whether the defendant owed a duty of care towards the plaintiff.
Whether the defendant owed a duty of care towards the plaintiff
According to Civil Liability Act 2002 (NSW) (the Act), an occupier of private land owes a duty to exercise reasonable care to avert foreseeable risk of injury to any other persons on that land. Any person who suffers injury resulting from the breach of the occupier’s duty, the occupier shall be held liable for the injuries unless it can the occupier uses a defense.
The defenses that can be used by an occupier are stipulated under section [5L] and section [5M] of the Act. Under section [5L] of the Act, the occupiers are safeguarded from liabilities for injuries sustained by another person due to materialization of an obvious risk of a hazardous recreational activity as was held in Sharp v Parramatta City Council . Under section [5M] of the Act, an occupier is safeguarded from any liability that arises due to any injury suffered by a person while being involved in a recreational activity despite being given a risk warning as was observed in Alameddine v Glenworth Valley Horse Riding .
An ‘obvious risk’ is defined as one that is either an incident of or inherent of that activity. Further, for an activity to be dangerous, a significant risk of physical harm must exist, however, a dangerous recreational activity usually depends on specific circumstances (Foley and Christensen 2016). In regards to a risk warning to be adequate, it is important that such warning about risk is given in a manner that is likely to reasonably warn people about the risk prior to the engagement into any dangerous recreational activity. The warning must include general nature of the particular risks which must be incident to or inherent in the activity.
In Papantonakis v Australian Telecommunications Commission  156 CLR 7, a more definitive statement had been explained with respect to duty of care under the law of negligence in Australia. While determining the duty of care that an occupier of land owes to an invitee is perceived as a common law duty to take reasonable care under the negligence law. While the duty is a duty to exercise reasonable care and the standard of such reasonable care must be that of the standard of a reasonable man.
In Hackshaw v Shaw  155 CLR 614, it was further held that an occupier of the land is under general duty to exercise care to any person who enters upon the land as a licensee, invitee or trespasser under circumstances that gives rise to the general duty. It was also held in Public Transport Commission (NSW) v Perry  that any special duty that an occupier owes does not confine the burden and scope of the general duty.
The General and Special Duty of Care owed to Invitees by an Occupier of Land
A general duty of care arises from various relationships between the person upon whom the duty is imposed and the person to whom such duty is owed. On the contrary, a special duty of an inviter may arise from one class of relationship only that is, the relationship between the occupier of a premises and the invitee. Negligence may be defined as an omission to do something that any prudent person would, under given circumstances, would do or not do in order to avoid any risk of injury that is foreseeable and is likely to cause injury to the person who he or she owes duty of care (Luntz et al. 2017).
The special duty of care that an occupier owes to an invitee requires the occupier to exercise reasonable care to prevent damage from any particular damage especially any unusual danger of which the occupier is aware or should have knowledge about as was established in Indermaur v dames .
In Cook v Cook , it was held that in an action against an occupier under the negligence law, it is not necessary to consider whether the occupier owed both the general and special duty to the invitee. It is only necessary to determine whether under every circumstance including defendant’s occupation of premises and the manner in which the plaintiff entered upon the premises, that the defendant owed a duty of care towards the plaintiff.
In order to determine the existence of such duty, a degree of proximity of relationship must be present. The standard of its existence shall be reasonable foreseeability of the risk of injury to the visitor. Further, such a duty shall be said to have been exercised if any prudent person would have responded to the foreseeable risk in the same manner under such circumstances (Luntz et al. 2017).
As per the circumstances of the case, it can be inferred that the plaintiff entered into the premises lawfully which establishes a relationship between plaintiff and a defendant which itself gives rise to a duty of care on part of the defendant to exercise a reasonable care towards the plaintiff and avoid any risk of injury that was foreseeable.
In regards to the risk of injury, the appellant or the defendant claimed to be unusual and not foreseeable. As per the general duty of care under the negligence law, it was established in Donoghue v Stevenson  that the risk of injury must be foreseeable which the defendant had failed to avoid. In the present case, the respondent or the plaintiff contended that the floors of the Mount Waverley supermarket had vinyl tiles on the floor that was covered with a moist film, as it was a rainy day.
Defenses available to Occupiers under Civil Liability Act 2002 (NSW)
However, the appellant or defendant contended that the floors of the supermarket were mopped as on the date of the incident an employee was directed to mop up the excess water that was being carried in by the customers with their wet feet, clothes, shopping bags and umbrellas. The respondent further contended that the Appellant failed to establish whether the employee had mopped the moisture on part of the surface where the she fell down.
The appellant was aware of the moisture which implies that the there was an obvious risk and such risk of injury was foreseeable. The appellant owed a duty of care that is owed by an inviter to an invitee as was established in Indermaur’s case. The duty requires the invitee to exercise reasonable care on his part for his own safety and expect the occupier or inviter to exercise reasonable care to avoid any damage that arises from any unusual danger. Such unusual danger must have been within the knowledge of the occupier. However, in case any act of negligence is established, it is for the courts to determine whether such reasonable care has been exercised by way of notice, guarding, lighting or whether the injured was contributory negligent.
The duty of care which the occupier of premises owe to the invitee or licensees is a distinct and separate duty, which arises from the mere fact that the occupier owns the premises and is responsible for the conditions of the premises. The special duty that arose in this case is not dependent on an act that is done by appellant or any omission made by him. The occupation of dangerous premises is itself adequate to give rise to duty of care towards the person who enters or is foreseeable to enter into the premises as is respondent, in this case.
As was established in the Donoghue’s case, the neighbor relationship established that a person owed a duty of care towards his or her neighbor and must undertake every necessary measure to avoid any risk of injure that is foreseeable. Unlike the trial judge, in this case, the Full court considered the neighbor relationship principle while determining the existence of general duty of care and special duty of care between the parties. It held that occupancy of dangerous premises shall be considered as a significant factor to establish a neighbor relationship in order to give rise to duty of care towards person who enter into premises with permissions. However, the law does not state that duty of care towards an invitee is held liable only in some cases such as the inviter-invitee relationship.
If the facts of the case establish a single relationship, only duty of care shall be determined to be existing between the concerned parties and that is a special duty of care, in the event such parties are an occupier and an invitee. Under such circumstances, both the general duty and the special duty shall be considered as the same.
The appeal was dismissed with costs. Based on the facts of the case, the court inferred that duty of care imposed by law on the appellant was to exercise reasonable care towards the respondent was solely because of the reason that the relationship that existed between the parties was that of the inviter and invitee. The relationship of inviter and invitee has been understood to give rise to the duty of care that is defined in Indermaur v Dames.
Alameddine v Glenworth Valley Horse Riding  NSWCA 219.
Civil Liability Act 2002 (NSW)
Cook v Cook  6I ALJR 25; 68 ALR 353
Donoghue v Stevenson  UKHL 100
Foley, M. and Christensen, M., 2016. Negligence and the Duty of Care: A Case Study Discussion. Singapore Nursing Journal, 43(1).
Hackshaw v Shaw  155 CLR 614
Indermaur v dames  LR I CP 274, at p 288
Luntz, H., Hambly, D., Burns, K., Dietrich, J., Foster, N., Grant, G. and Harder, S., 2017. Torts: cases and commentary. LexisNexis Butterworths.
Papantonakis v Australian Telecommunications Commission  156 CLR 7
Public Transport Commission (NSW) v Perry  137 CLR 107 at p131
Sharp v Parramatta City Council  NSWCA 260.
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