What it does
The Occupiers’ Liability Act 1985 (WA) is a short, ten-section statute whose central purpose is to replace the common-law rules governing an occupier’s duty of care toward entrants with a statutory standard that is both simpler to state and more flexible in application. Section 4(1) expressly provides that ss 5–7 “shall have effect, in place of the rules of the common law,” for determining the care an occupier must show toward a person entering premises in respect of dangers “due to the state of the premises or to anything done or omitted to be done on the premises” for which the occupier is legally responsible. That substitution is not total: s 4(2) preserves the common-law rules that identify who the occupier is, ensuring that the statutory duty is imposed on the same person or entity that the common law would have selected.
At the heart of the statute is s 5(1), which imposes a single, overarching duty: the occupier must show “such care as in all the circumstances of the case is reasonable to see that [the entrant] will not suffer injury or damage by reason of any such danger.” The duty is owed both to the person and to property brought onto the premises that remains in that person’s possession and control. The phrase “except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise” acknowledges that the duty can be varied by contract or by other lawful means, subject to the anti-avoidance rule in s 7.
Two important qualifications immediately narrow the duty. Under s 5(2), the full duty does not apply to risks “willingly assumed” by the entrant; in those cases the occupier owes only a residual duty not to create a danger with deliberate intent to harm or to act with reckless disregard of the entrant’s presence. Section 5(3) goes further: a person on the premises with the intention of committing, or in the commission of, an offence punishable by imprisonment is owed the s 5(2) residual duty. These provisions create a clear hierarchy: invitees and lawful visitors receive the full reasonableness standard; those who willingly accept risk or who are trespassing for criminal purposes receive markedly less protection.