Published on 9 April 1998. Last modified on 28 July 2010.

At the time of the inquiry (which commenced in July 1984), the common law on this subject was excessively technical and lacked uniformity. The outcome of a case would depend on the relationship between the occupier and the visitor—for example, whether they were invited onto the property or were trespassing. This process of classification often operated in an arbitrary manner.

During the course of the reference, the High Court handed down its decision in the case of Australian Safeway Stores Pty Ltd v Zaluzna (1987). In this case, the Court held that the rules described above should be abolished and that the law in this area should be governed by the general principles of negligence. This approach then became the law in the ACT. The ALRC, therefore, investigated the merits of the Safeway Stores decision to determine whether its principles should continue to have effect.

As a related issue, the Commission evaluated the English common law rule exempting landlords from liability to visitors (see Cavalier v Pope [1906] AC 428). Because, technically speaking, tenants were the occupiers of property, landlords could not be held liable for loss suffered by a person coming onto the leased property. It was uncertain whether this rule applied in Australia. One of the chief criticisms of this rule was its rigidity: it applied whether the landlord or the tenant was responsible for undertaking the repairs.

A Discussion Paper, Occupiers' Liability (ALRC DP 28), was released in 1987 and the final report (ALRC Report 42) in 1988.

Key recommendations

  • The most desirable outcome—the introduction of a single, flexible standard—had already been achieved by the High Court decision in the Safeway Stores case. Consequently, it was unnecessary for legislation to change the current position.
  • The rule in Cavalier v Pope should be abolished. As a consequence, a landlord's liability would be determined by the general common law principles of negligence.

Implementation

The Attorney-General referred the matters investigated in ALRC Report 42 to the Law Reform Committee of the ACT in September 1990. The Committee's findings (ACTLRC 2), released in March 1991, supported the ALRC's recommendations. In May 1991, the Law Reform (Miscellaneous Provisions) (Amendment) Act 1991 (ACT) came into effect, abolishing landlord's immunity from liability.

The High Court decision in Northern Sandblasting Pty Ltd v Harris (1997) abolished the Cavalier v Pope rule for all Australian jurisdictions.