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Accidents on private and public property

Please note that new Uniform Civil Court Rules 2020 commenced on 18 May 2020 for most civil legal proceedings in the Magistrates, District and Supreme Courts of South Australia. The Uniform Civil Rules 2020 apply to proceedings commenced, or a step in a proceeding taken, on or after 18 May 2020. The previous Court Rules continue to govern a step in a proceeding taken before 18 May 2020.

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 (SA) 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/landlord.

Both tenants and landlords are occupiers and are responsible for injuries caused by defects in rented premises [Civil Liability Act 1936 (SA) 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 (SA) s 21].

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

In some cases, someone other than the tenant or landlord 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 (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; [1987] 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.

Accidents on roads and footpaths

The Civil Liability Act 1936 (SA) 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 [s 42].

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.

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.

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 animal 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 measures taken to confine or control the animal/s and will place a greater liability on the animal owner if the fences are in a bad state of repair or gates are left open, allowing the animal to escape onto the road [see Civil Liability Act 1936 (SA) s 18(4); Le Poidevan Industries Pty Ltd v Roberts[1991] SASC 2708; (1990) 11 MVR 570 and Clyne v Gulbin (1995) 65 SASR 397.] See also Injuries caused by other animals.

    Accidents on private and public property  :  Last Revised: Thu Jun 4th 2020
    The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.