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Journal article

Two problems of occupiers’ liability - part one: the Occupiers’ Liability Acts and the common law

27 Aug 2015

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.

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