ACCIDENTS ON PRIVATE & PUBLIC PROPERTY

This section deals with accidents and injuries that occur on property - whether private or public. Private land includes private homes and gardens, cinemas and shopping centres. Public land is land owned by the Crown (that is, the Commonwealth or State Government or a statutory body) to which the public has access, such as public roads, parks and government offices.

The area of law about compensation for these accidents and injuries is mostly under the Civil Liability Act 1936 and is known as occupier's liability.

WHO IS LIABLE?

When someone is injured by something dangerous on private land, the occupier is responsible. He or she is the person in occupation or control of the place - that is, the one who has the right to decide who to admit and who to exclude from the land or premises. The occupier may be, but is not necessarily, the owner.

Both tenants and landlords are occupiers and are responsible for injuries caused by defects in rented premises [Civil Liability Act 1936 s 19]. The responsibility of a landlord is limited to injury, damage or loss that happened because he or she did, or failed to do, a certain thing while carrying out an obligation to maintain or repair the premises, or where the landlord did not carry out that obligation [Civil Liability Act 1936 s 21].

All occupiers, whether owners or tenants, should take out house and contents insurance (see insurance) which must include cover for people injured by dangers on the premises (public liability insurance). This latter insurance is cheap and can be taken separately if required. When someone has been killed as a result of a danger on private premises, the dead person's spouse or children may have a claim against the occupier.

In some cases, someone other than the owner or tenant has been held by the court to be the occupier, but this is rare and depends on the facts of the case.

THE OCCUPIER'S RESPONSIBILITIES

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 s 20(1)].

In deciding whether the occupier was negligent a court will consider [Civil Liability Act 1936 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 amendment in 1987 to what was then called the Wrongs Act (the current Civil Liability Act), and as a result of a High Court decision in Australian Safeway Stores Pty Ltd v Zaluzna (1990) 162 CLR 479, it is no longer important to classify the injured person as a licensee or invitee.

The court will 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 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 the injured persons 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.

Drakos v Woolworths

A customer slipped on oil spilt on the floor of a supermarket. The supermarket staff gave evidence that there was a plan to regularly inspect the floors and clean any spills. The court decided that the customer had to show not only that she slipped on the oil because the floor was not regularly inspected, but also that if it had been inspected this would have avoided the incident. The claim succeeded but not all of the judges agreed.

Source: Drakos v Woolworths (1991) 56 SASR 431

Demczuk v Polish Society

The owner hired out a hall for a dance. The hirers asked the owners not to apply a sawdust like substance to the floor but the owners did because too much wax had been applied to the floor during polishing and consequently it was sticky. A patron at the dance slipped and injured herself while dancing the polka. The court held the owner responsible, but not the hirers because the hirers had left it up to the owner to prepare the floor for the dance.

Source: Demczuk v Polish Society Don Mikolaja Inc (1987) 46 SASR 223

ACCIDENTS ON ROADS AND FOOTPATHS

From May 1 2004, the Civil Liability Act 1936 s42 states that a 'road authority' cannot be held negligent for a failure to maintain, repair or renew a road; or to take other action to avoid or reduce the risk of harm that results from a failure to maintain, repair or renew a road. For accidents that occurred before May 1 2004, seek legal advice.

Road means a street, road or thoroughfare to which public access is available to vehicles or pedestrians (or both), and includes:

a bridge, viaduct, busway (including the O-Bahn) or subway
an alley, laneway or walkway
a carpark
a footpath
a structure associated with a road.

Road authority means

a body or person in which the ownership of a road is vested by statute, or to which the care, control and management of a road is assigned by statute; or
if the road is on land of the Crown—the Crown or the Minister responsible for the care, control and management of the land; or
any other public authority or public body that is in fact responsible for the care, control and management of a road.

Vehicle includes

a motor vehicle
a bicycle
an animal that is being ridden
an animal that is being used to draw a vehicle
but does not include a tram or other vehicle (except an O-Bahn bus) that is driven on a fixed track.

A council may still be liable if road signs are misleading and lead to an accident.

Where an accident occurs due to an animal on a road, it is up to the person who is injured to prove that the farmer or property owner was negligent. The courts will look at the manner of driving and the nature and locality of the road, for example, if the vehicle was being driven recklessly in the circumstances. The courts will also consider the state of the fencing and will place a greater liability on the animal owner if the fences are in a bad state of repair, allowing the animal to escape onto the road Le Poidevan Industries Pty Ltd v Roberts (1990) 11 MVR. 570.