District Court takes limited view of council’s protection from occupier’s liability

In the recent decision of Warren by His Litigation Guardian Direlle Farr v District Council of the Lower Eyre Peninsula (No 3) [2024] SADC 37, the District Court of South Australia (the Court) has found that the District Council of the Lower Eyre Peninsula (the Council) was not liable for injuries suffered by a member of the public after he fell from a cliff onto rocks at a beach on the Eyre Peninsula.

However, in comments which are of relevance to the sector more generally, the Court has adopted an interpretation of section 244(1) of the Local Government Act (SA) (the LG Act) which is more limited than might previously have been understood.

Facts

On 18 December 2013, Mr Gregory Warren suffered severe injuries when he fell 10 metres from a cliff onto rocks at a beach on the Eyre Peninsula. Mr Warren was walking down the cliff before he fell.

Mr Warren’s mother made an application to the Court on his behalf, seeking damages from the Council on the grounds that the Council had breached the duty of care it owes to members of the public who were visiting the area, by failing to place signs and barriers that would warn members of the public of the cliff.

The Council argued that it had no duty to place signs on the cliff, referring to the remoteness of the place where the cliff was located, as well as the vastness of the coastline where the incident occurred. The Council also maintained that the risk of falling would have been obvious to any person walking along the cliff. The matter subsequently proceeded to a hearing.

Decision and discussion of section 244 of the LG Act

In considering whether the Council breached the duty of care it owed to Mr Warren, the Court considered whether the standard of care required to discharge the Council’s liability under the Civil Liability Act 1936 (SA) required the Council to place signs and a barrier at the top of the cliff.

In short, the Court determined that the applicable standard of care did not require this, based on the particular circumstances of the case.

Importantly, the Court found that even if a warning sign or barrier had been placed at the top of the cliff, the sign would have done nothing more than warn members of the public of something that was obvious - namely that the cliff was very steep, was not appropriate for use as a route to the beach, and accordingly, should not be walked on.

Accordingly, the Court concluded that the Council had not breached its duty of care to Mr Warren.

However, for the sake of completeness, the Court went on to consider the following question: If the Council had breached its duty of care, would it nevertheless have been protected from liability by section 244(1) of the LG Act? This section provides as follows:

A council is only liable as occupier of community land for injury, damage or loss that is a direct consequence of a wrongful act on the part of the council.

Importantly, in comments which are relevant to the entire sector, the Court expressed the view that a ‘wrongful act’ for the purposes of section 244 of the LG Act can include an omission. The Court noted that limiting the interpretation of this provision to positive acts done by a council would lead to harsh and irrational outcomes, and would limit a council’s liability in even the most obvious of cases.

Accordingly, had the Council been found to have breached its duty of care in this case, section 244(1) of the LG Act would not have operated to limit the Council’s liability, as on the Court’s interpretation of this provision, its omission to place signs and barriers around the cliff would have constituted a ‘wrongful act’.

What this means for the sector

The Court’s comments in this case are not strictly binding on the Court if it ever considers this provision again. Further, we understand that this matter may very well go on appeal to the Supreme Court of South Australia (the Supreme Court), which might depart from the Court’s views on this part. We will monitor the progress of this case and provide any further updates if and when appropriate.

However, unless and until either these comments from the Court are overturned by the Supreme Court, or the Court later considers section 244(1) of the LG Act in another case and reaches a different view, councils should not proceed on the basis that every omission on community land will attract the protection from liability in that section.

This does not mean that the protection from liability in section 244(1) of the LG Act now has no effect. It is still the case that injury, damage or loss must be a direct result of a wrongful act or omission in order for the protection not to apply. However, the extension of the meaning of the word ‘act’ to include omissions, would (if upheld) mean that the protection applies in fewer circumstances than might previously have been thought to be the case.

Occupier’s liability and negligence generally are complex areas of law. Outcomes are always highly dependent on the specific facts of any case. Specific advice should be sought if any council has concerns that it might be exposed to a risk of liability arising from anything the council is – or crucially, is not – doing.

Should you wish to discuss any of the matters raised in this article, please contact Dale Mazzachi on +61 8 8210 1221 or DMazzachi@normans.com.au; or Chris Alexandrides on +61 8 8210 1299 or CAlexandrides@normans.com.au; or Christian Beltrame on +81 8 8217 1315 or CBeltrame@normans.com.au.