Sore Feelings: Occupier's Liability
What's the situation if someone injures themselves in your family home? Are you liable for the damage caused? And if so, how can you protect yourself from having to fork out potentially tens of thousands of dollars?
Not every accident that occurs on your property is your fault. To be liable, you have to have been negligent in some way. Negligence can refer to either doing something that caused the accident (such as digging up a path), or failing to take action to remove the danger (such as not repairing potholes in the driveway).
Negligence
Under the law, negligence is made up of three elements:
- Duty of care. This is the duty that all home occupiers have to take reasonable care to protect entrants from foreseeable risks. Home owners and tenants alike have this duty. It applies to all entrants, regardless of whether you invited them onto your property or not.
- The duty was breached. Whether the duty was breached depends on the circumstances. The duty is to take 'reasonable' care. Reasonable means neither superhuman nor subhuman, rather it lurks somewhere mysteriously in between. The duty applies to 'foreseeable' risks, meaning that the occupier knew or ought to have known of the risk. It must have been such that a reasonable person in that position would have taken precautions against the risk of harm.
- The breach caused the injury. The negligence must have been a necessary condition of the harm occurring. That is, the injury was caused by a breach of the duty of care. If someone hurts themselves purely because of their own carelessness, you may not be liable.
Are You Liable?
Whether you are liable for negligence will depend on all the surrounding circumstances. Did you:
- Know the danger existed?
- Take any steps to remove the danger?
- Warn entrants of the risk
When courts decide whether a reasonable person would have taken precautions in a given situation, they consider:
- The chance that harm would occur if care were not taken;
- It's likely seriousness; and
- How difficult it would have been to take precautions (that is, the costs and the practical difficulties).
The actions of the injured person are also important. They might have contributed to their own injury, for instance by being careless and/or intoxicated. If you warned them about that unstable pile of rubble in the garden, but they were drunk and messing about deliberately, your liability is likely to be reduced. You are not generally required to warn people about 'obvious risks' - but then the question must be asked: which risks are obvious? It's best not to take any chances.
Taking Out Insurance
The best protection you have in a financial sense is to take out public liability insurance. This may already be a component of your home insurance - but make sure you check this before the issue ever arises. If you employ domestic help, such as a cleaner or gardener, ensure you take out adequate domestic workers' compensation insurance.
Seek Advice
If the worst happens and someone is injured in your family home, contact your insurer and check whether they will cover the claim. If you do not have public liability insurance or the insurer denies liability, seek legal advice. A lawyer can tell you whether the claim is likely to succeed in the courts, and may be able to help you settle the problem outside of court. If court action does eventuate, the lawyer will be able to represent you and run the case.
This article is not intended to provide legal advice. If you need help with a legal problem, seek the advice of a legal practitioner without delay.
Article written by Stella Tarakson, freelance author on legal and financial matters. Her recent publications include "Raising Kids ... Without Breaking the Bank" and "Everyday Law" 2nd edition.