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LIABILITY OF PROPERTY OWNERS & LANDLORDS

REAL ESTATE LIABILITY IN MELBOURNE

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Liability of Property Owners & Landlords

Occupational Health and Safety Act 2004

SECTION 26 – DUTIES OF PERSONS WHO MANAGE OR CONTROL WORKPLACES

1    A person who (whether as an owner or otherwise) has, to any extent, the management or control of a workplace must ensure so far as is reasonably practicable that the workplace and the means of entering and leaving it are safe and without risks to health.

2    The duties of a person under sub-section (1) apply only in relation to matters over which the person has management or control.

3    An offence against sub-section (1) is an indictable offence.

However, the Court can hear and determine the offence summarily (section 53 of, and Schedule 4 Magistrates’ Court Act 1989).

“Workplace" means a place, whether or not in a building or structure, where employees or self-employed persons work.

A Landlord may be a person who has the management and control of the building or structure being the workplace.

WRONGS ACT 1958 (VICTORIA)

Section 14 relates to Occupiers’ liability. It provides that a reference to the occupier of premises include a reference to the proprietor of premises let under a tenancy (including a statutory tenancy not amounting in law to a tenancy) who:

    i)    Is under an obligation to the tenant to maintain or repair the premises; or

    ii)    Is, or could have put himself in, a position to exercise a right to enter on the premises to carry out maintenance or repairs; and

An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.

In determining, whether the duty of care has been discharged consideration shall be given to:

a)    The gravity and likelihood of the probable injury;

b)    The circumstances of the entry onto the premises;

c)    The nature of the premises;

d)    The knowledge, which the occupier has or ought to have of the likelihood of persons or property being on the premises;

e)    The age of the person entering the premises;

f)    The ability of the person entering the premises to appreciate the danger;

g)    Whether the person entering the premises is intoxicated by alcohol or drugs voluntarily consumed and the level of intoxication;

h)    Whether the person entering the premises is engaged in an illegal activity;

i)    The burden on the occupier to eliminate the danger, or to protect the person entering the premises from the danger as compared to the risk of the danger to the person

NEED MORE INFORMATION

Behan Legal assists and advises on these important issues. For an appointment, call  03 9646 0344 .

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