People can make a claim for damages for their injuries if they can prove that the injuries were caused by the occupier's negligence [Civil Liability Act 1936 (SA) s 20(1)].
In deciding whether the occupier was negligent a court will consider [Civil Liability Act 1936 (SA) s 20(2)]:
- the nature and size of the premises
- the nature and size of the danger
- how the person came to be exposed to the danger
- the age of the injured person
- whether the occupier knew, or ought to have known, there was a danger, or that people were coming on to the property
- what had been done to reduce or warn people about the danger
- whether it would have been reasonable to expect the occupier to do anything else to reduce the danger
- anything else that seems relevant
Prior to 1987 courts looked very closely at how the person came to be on the land when deciding how careful the occupier had to be. As a result of amendments in 1987 to what was then called the Wrongs Act (the current Civil Liability Act 1936 (SA)) and the High Court decision in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479;  HCA 7, it is no longer important to classify the injured person as a licensee or invitee. The court will still however take into account how the person came to be on the land in deciding how careful the occupier should have been for that person's safety.
If a person is a trespasser no duty of care is owed [Civil Liability Act 1936 (SA) s 20(6)] unless the person's presence was reasonably foreseeable and the dangers were such that precautions should have been taken for his or her protection.
When the occupier is a friend, he or she may be willing to admit negligence in order to help an injured friend but the occupier must be careful not to breach the conditions of an insurance policy. Many policies contain a term forbidding such admissions. In practice, occupiers should get their own legal advice, even if they are insured.
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