Occupiers' liability and the Erin Andrews decision

Occupiers' liability and the Erin Andrews decision

Due to the facts of the case, US TV personality Erin Andrews' claim for damages relating to psychological injury has been making headlines worldwide in recent days. Earlier this week, a jury awarded her US$55 million dollars in damages, 51% of which is to be paid by her stalker, and 49% to be paid by the owners of the hotel where the incident occurred. This last point is important, as it may be considered highly unlikely that the stalker is going to be in a position to pay much, if any, of the US$28+ million dollars that he owes. The hotel's insurers, on the other hand, are likely to be in a position to meet their proportion of the jury's damages award. For Victorian observers, there are a few things worth noting:

  1. You cannot get astronomical damages awards in Victoria, or indeed anywhere in Australia. Had this matter arisen in Victoria, the maximum that the victim could be awarded under the Wrongs Act is $485,000 for pain and suffering, with additional compensation payable for lost earnings and the cost of gratuitous care.
  2. From a legal perspective, the liability of the stalker in this case was a given. As a general rule, however, it is rarely financially viable to pursue a claim against a private individual who does not have an insurance company standing behind them. Though you might'win' the legal case, you are often left with an unenforceable judgment - you simply can't get the money out of the uninsured wrongdoer.
  3. The big fight in the Andrews case was about whether the hotel owners were liable for injury arising from the criminal acts of a third party (i.e. the stalker) which occurred on their premises. This is known as'occupiers' liability'.

The evidence in this case was that the stalker had enquired with hotel staff as to whether Andrews was staying at the hotel. Andrews' lawyers argued that the hotel ought to have immediately advised Andrews of this, and that had they done so, Andrews would have immediately called the police.

Occupiers' liability is a complex area of law. Australian courts have generally been less willing to find against occupiers than their US counterparts. The leading case on point in Australia is the High Court's decision in Modbury Triangle Shopping Centre v Anzil (?Modbury').

The Modbury decision confirmed that as a general rule, an occupier is not required to take reasonable care to prevent injury to a person resulting from the criminal acts of a third party. There are exceptions to this rule, including circumstances where a'special relationship' exists between the occupier and the third party, circumstances where there is a high degree of certainty that injury will occur unless action is taken to prevent it, and circumstances where the occupier ought to have be aware that the third party's presence posed an imminent risk to the safety of others.

Arguably, none of the'Modbury exceptions' would apply in the Andrews case.

If you or someone you know has been the victim of crime, it may be possible to pursue a claim with the Victims of Crime Assistance Tribunal (Other). Details as to eligibility and how to apply can be found here. If you consider that the occupier of the location where the crime occurred may be negligent in the circumstances in which injury occurred, contact Redlich's Work Injury Lawyers on (03) 9321 9988.

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