11.4 Accidents on private and public property

Contributed by MatthewLittlejohn and current to 1 May 2016

Accidents and injuries that happen on private or public property are sometimes caused by the conduct of others. A person who has suffered injury due to the conduct of another person may be able to recover damages if the conduct amounts to negligence. Conduct is said to be negligent where a person fails to take reasonable precautions to avoid reasonably foreseeable risks of injury to others.

In the NT, the law of negligence is governed by the common law. In some areas, the operation of the law of negligence has been excluded by statute and replaced by schemes of statutory benefits. The two main examples are the Motor Accidents Compensation Act, which deals with motor vehicle accidents involving residents of the NT (see Motor vehicle accidents ), and the Return to Work Act, which covers injuries caused to NT employees by the negligence of employers (see Work-related injury).

In cases that do not fall under either the Motor Accidents Compensation Act or the Return to Work Act, legislative restrictions have been enacted around the types and amounts of compensation available.

The Personal Injuries (Liabilities and Damages) Act is the central piece of legislation dealing with compensation for public liability injuries. The Act affords some protection for volunteers, property owners, good Samaritans and community organisations. The main operation of the Act is to limit the amount and types of damages that can be claimed, particularly in relation to past loss of earnings and future pecuniary loss. Compensation for pain and suffering has been abolished, and replaced with an assessment scale for permanent impairment (much like the scales in work injuries and motor accident claims). Compensation for attendant and gratuitous care services and medical expenses remains unchanged.

The Personal Injuries (Civil Claims) Act 2003 also contains changes to the method of making claims and introduces limits to access to court. To date the Act has not been proclaimed, meaning it has not taken effect. It is important to check when commencing a claim if the Act or any further parts have been proclaimed at that time. When the Act is proclaimed the procedure for commencing a claim will be drastically altered. The Act will not affect work health, motor accident claims or Victims Claims Assistance claims. There has not been an indication of when this Act is intended to be proclaimed.

Who can claim?

Any person who has suffered injury (the plaintiff) because of the conduct of another person (the defendant) can recover damages for that injury if it can be proved that:

• a reasonable person in the position of the defendant would have been able to foresee that their conduct involved a risk of injury to a person such as the plaintiff. This is referred to as the duty of care. In simple terms, were the premises safe?
• the defendant failed to act in the way a reasonable person would in response to the risk of injury. This is referred to as a breach of duty. In deciding whether there has been a breach of duty, the court considers:
• the size of the risk
• how likely it is to occur
• the expense, difficulty and inconvenience of taking alleviating action
• other conflicting responsibilities the defendant might have
• whether the defendant's conduct caused the injury (this is called causation) [March v Stramare (E and MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506].

An occupier's liability

Until a decision of the High Court in 1987 [Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479], the law of negligence operated differently for occupiers of land. Occupiers owed varying duties of care to the individuals who came onto the land they occupied, depending on the way those individuals entered the land, for example whether they were invited, trespassing and so on. Those distinctions were abolished in the case referred to and replaced by the ordinary duty of reasonable care.

As a consequence, the principles that apply to the ordinary law of negligence now apply to occupiers. The questions to ask now are:

• was there a duty of care?
• did the defendant breach the duty?
• did the breach of duty cause the injury to the plaintiff?

The circumstances surrounding a plaintiff's entry onto a defendant's land are relevant now only to the general issue of whether there was a failure to take reasonable care. For example, it would be negligent for a shopping centre not to have a path properly illuminated for late-night shoppers. However, it may not amount to a breach of duty of care to have the same path in darkness when the shopping centre is closed, so a trespasser who is injured may not have a claim. In each case the court looks at what a reasonable occupier would have done to prevent injury given the circumstances.

An occupier can also be liable for an accident that occurs outside their premises. For example, if an occupier allows a coconut palm to hang over into a neighbour's property and a frond from it falls and injures their neighbour, the owner of the tree may be liable for the injury.

The principles of negligence also normally apply when accidents occur in public places. The body in control of the premises is considered to be the occupier, and as such may be liable for injury caused by a failure to take reasonable care to prevent foreseeable risks. An example would be where a council, as a statutory authority, has encouraged people to swim in a bay, the shores of which include a rocky shelf. A person dives from the shelf and hits a submerged rock. The authority may be held to be negligent for failing to warn visitors of the presence of submerged rocks.

Who is an occupier?

An occupier is the person in occupation or control of the premises. Possession and ownership is not enough. An occupier is the person who has the right to decide who to admit and exclude from the premises. The occupier may be, but is not necessarily, the owner.

Tenants are certainly occupiers and are responsible for injuries caused by defects in their rented premises. This will be so even if the landlord is responsible for maintaining the property. All tenants should, therefore, ensure that they have public liability insurance to cover them in the event someone is injured by hazards on their premises. Public liability insurance can be taken out separately or as part of house and contents insurance (see Insurance ).

There can be more than one legal occupier of premises. For example, where the owner of a hotel permits the manager to live above the licensed premises and to sublet the private quarters, both the owner and the manager are occupiers.

In some cases, someone other than an owner or a tenant is the occupier. For example, an independent contractor who has control of a building site may be an occupier.

Case study

The plaintiff, an inexperienced waterskier, was injured while skiing on a lake. The council had dredged a channel in the lake and erected four signs in the bed of the lake adjacent to the channel, facing the shores of the lake. The signs read: 'DEEP WATER'. The plaintiff was using a circuit habitually used by waterskiers when he fell in the vicinity of one of the signs and struck his head on the bed of the lake. The depth of the water at that point was 3.5 to 4 feet. The High Court considered whether the council had taken reasonable care to avoid a foreseeable risk of injury.

It was first necessary to determine whether a reasonable person in the position of the council would have foreseen that the placement of the signs as described involved a risk of injury to people such as the plaintiff. The majority held that a reasonable person might have thought that the sign was ambiguous and could be read as an indication that there was a zone of deep water beyond rather than in front of the sign. A waterskier might be induced to ski in that area, mistakenly believing it to be deep. As a reasonable person is likely to have thought that it would be unsafe for an inexperienced skier to ski in water only 3.5 feet deep, there was a foreseeable risk of injury. The council had breached its duty of care to the plaintiff by placing the signs in the manner it did [Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40].

This case study must be read alongside more recent court cases because courts are always varying their standards to reflect changing community standards.

Accidents on roads and footpaths

For many years, local councils and highway authorities enjoyed special protection; they had limited liability for accidents caused by poor roads or footpaths. Under this special protection a distinction was made between nonfeasance and misfeasance. To illustrate, take the example of a local council building a bridge. The way the bridge is designed and constructed is faulty, and people are injured when the bridge collapses as a consequence. That is a positive mistake, therefore misfeasance. The same council builds another bridge with faultless design and construction. However, for many years the council fails to repair and maintain the bridge, and as a consequence it collapses. That is a negative mistake, therefore nonfeasance. The people injured in this second scenario could not sue the council. However, the High Court of Australia changed the law in this area in the case of Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512. It ruled that in broad terms councils and highway authorities should be subject to the same duty of care as the rest of the community.

When a person's injury is caused by a poor road or footpath and the case goes to court, the court looks at whether the council or highway authority concerned did something wrong during construction or maintenance. For example the court may want to know:

• was adequate overhead lighting installed?
• was adequate drainage provided?
• were any repairs carried out properly
• was the surface of the road or footpath safe for use by members of the public?

The questions asked will depend on the circumstances of the case.

Making a claim

A claim can start with a simple letter of demand. Normally a claim for damages for injuries caused by negligence must be commenced within three years of the date the injury is suffered, though this can be extended for minors or people under a disability. Legal advice should be obtained in this regard.

The NTCAT hears claims up to $25,000, the Local Court hears claims for damages between $25,000 and up to $100,000. Claims for more than that must be made to the Supreme Court. Claims in the Supreme Court are also subject to the general civil litigation management practices set out in Practice Direction 6 of 2009.

Going to court

Anyone taking court action for negligence should consult a lawyer. If a claim is successful, most legal costs will be covered. Some solicitors accept a no win, no fee system (see Dealing with lawyers ) depending on the merit of the case and the potential for recovery. These written arrangements involve special cost agreements. Even under a no win, no fee arrangement, a solicitor is unlikely to fund expenses out of pocket, such as court fees payable and the cost of medical reports. These costs are likely to have to be paid by the Plaintiff themselves.

A decision made by the Local Court or Supreme Court can be appealed, but only on questions of law. An appeal is not a re-hearing of the whole case. An appeal court will hear submissions on a point(s) of law. If the appeal court finds an error in law was made, it will remit the claim back to the court that first dealt with the matter and direct the court to determine the claim by applying the correct law. Sometimes an appeal court will impose its own judgment instead of sending it back. From the Local Court an appeal is made to the Supreme Court. An appeal from the Supreme Court is heard in either the NT Court of Appeal or the High Court. Appeals are very expensive. A person considering one should first ask themselves if they can pay the legal costs if their appeal is rejected.