TAKING CARE OF YOUR OWN SAFETY

Escalating public liability insurance premiums have prompted insurance companies and governments to demand a reform of the law to reign in payments to injured people. We have recently noticed a significant tightening of the duty of care and a limitation of those circumstances in which an injured person can recover compensation, rather than a litigation explosion. The High Court has handed down some significant decisions in which it has stressed that the duty of care only extends to doing what is reasonable. Further, that duty only involves taking reasonable care to prevent or eliminate dangers to those persons who are taking reasonable care for their own safety. Recent decisions in the New South Wales Court of Appeal handed down in November 2002, have confirmed, for example, that pedestrians who are injured as a result of tripping or falling in public places will only be able to recover if they themselves were taking reasonable care for their own safety. In the case of Burwood Council v Byrnes, Handley JA said “the formulation of the duty of care in terms which requires that a road be safe not in all circumstances, but where the users are exercising reasonable care for their own safety is even more important where the plaintiff was a pedestrian. In general, such persons are more able to see and avoid imperfections in a road surface. It is in the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces”. It is apparent that the common law itself has adjusted to the expectations of society relating to individual responsibility. It is hard to see why, in these circumstances, the government should be rushing, at the behest of insurance companies, to change that law in a major way.

DISCLAIMER

These personal injury law articles were published with the express permission of Stacks/The Law Firm. Please note that the information was correct at the time of publication, but personal injury law is subject to legislation changes from time to time and thus it is recommended that you contact a Stacks/Goudkamp lawyer should you have any questions relating to any of the topics above.