Landlords and Tenants Beware, Know Your Occupier Liability Rights and Obligations and Ensure You Insure


This update is co-authored by Daphne Schilizzi, Student Paralegal 

The recent WA District Court case of Baker v Lock [2018] WADC 48 provides a useful reminder of how important it is for landlords and tenants to be appropriately insured.

The facts of the case are as follows:
  • The plaintiff, Mr Baker, visited a residential premises to pay for repairs to his motorcycle which one of the defendants, Robert, had agreed to undertake;
  • While living there, Robert was also conducting a small business of a repair mechanic from a shed on the premises;
  • During his visit, the plaintiff sustained severe burns after an explosion and fire was caused by one of the defendants lighting a cigarette near an open drum of paint thinners in the shed.
  • Although occupied by Robert and his sister Jo-Anne, the premises was owned by their parents, William and Lynette Lock, co-defendants in the action.

The plaintiff sued the landlords, William and Lynette, on the basis that, as occupiers of the premises they:

  1. owed him a duty of care;
  2. that duty was breached; and
  3. that breach caused his injuries.
Occupier or Landlord?

In order to determine their liability under the Occupiers’ Liability Act 1985 (WA) (OLA), the trial judge needed to decide whether William and Lynette were actually the occupiers of the premises.

Under Section 2 OLA, an occupier of a premises is a person occupying or having control of land or other premises. His Honour found that William and Lynette, although the owners of the premises, were landlords and not occupiers and that the rental arrangement between them and their children amounted to a periodic verbal tenancy. In making this decision, His Honour made no new legal findings, but what he considered relevant in his determination provides a useful guide for those wondering whether they fall into the category of occupier or not. His Honour relied on the following:

  • On the facts, the premises were solely occupied by the Robert and his sister Jo-Anne;
  • Although their parents owned the premises, they were neither present at the time of the incident nor had they been, besides sporadic visits, for around three to four years;
  • Control of who could visit the premises rested with Robert and sister Jo-Anne, not them; and
  • The payments, made by Robert and Jo-Anne to their parents, although non-commercial and of variable amounts, amounted to rent not board.
Practical considerations

As noted above, while no new law was created here, the case is a timely reminder to landlords (and tenants) to ensure they are properly insured for public liability and that when leasing premises, each party is aware of their rights and obligations under the OLA as occupier, whether a landlord or tenant, particularly in the absence of a written lease.

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.