Key takeaways on public land safety

In a recent ruling, the District Court of South Australia (the Court) dismissed a claim against the District Council of Lower Eyre Peninsula (Council), finding no liability for a teenager’s severe injuries after falling from a cliff on Council land. The case highlights important considerations for Councils regarding the duty of care owed to the public in managing and maintaining public spaces.

Summary and findings

Mr Greggory Warren (Plaintiff) was 17 years old when he suffered severe injuries upon falling from a 10 metre cliff onto rocks while on Council land. The land was located at a remote beach on Eyre Peninsula (around a seven-hour drive from Adelaide).

The Plaintiff’s mother made an application to the Court on his behalf against the Council alleging that the Council had breached the duty of care it owes to members of the public who visited the area by failing to place signs and barriers that warn them of the cliff.

The Court considered whether the standard of care under the Civil Liability Act 1936 (SA) (CLA) was to take reasonable care to safeguard them against injury arising from the Council’s care, control and management of the land and its role as occupier. The measures required to discharge the CLA duty depended upon the ‘circumstances of the particular case’.

The duty did not extend to erecting a sign because of the:

• low probability of the risk eventuating in a remote area;
• burden of taking precautions along a 700km coastline;
• fact that even if a sign were erected it would only warn the public of something obvious; and
• lack of justification for a sign or barrier on the point of injury as opposed to the ‘hundreds’ of other sites where a track could carry a vehicle to an area to park a car near a cliff.

Notably, a significant issue in the case was whether the Council had encouraged the activity that caused harm by creating and maintaining a road to the site and a car park atop the escarpment. The Court held that while the Council created the road and the car park, it did not encourage descending the escarpment because there was no access to the beach from the car park.

Provisional findings

The Court found it was not possible to determine whether any particular alleviating action in respect of the risk of injury, such as erecting a sign, would have prevented the accident. This is because it had already found that the duty of care did not include the obligation to implement such measures. The Court also determined that had the claim succeeded, the applicant’s damages would have been reduced by 40% for his own contributing negligence, and neither voluntary assumption of risk nor the wrongful act statutory defence would operate.

Under section 244(1) of the Local Government Act (SA) the Council is only liable for an injury, damage or loss that is a direct consequence of the Council’s wrongful act. Notably, the Court stated that a wrongful act under section 244 includes omissions and is not limited to only positive acts. As such, the Council’s lack of placement of a sign would have constituted a wrongful act.

Key takeaways

Two key takeaways for Councils are:

• if an area is maintained for a particular purpose, then foreseeable risks associated with that purpose may need to be warned about; and
• if an area is not maintained for a particular purpose, but a Council knows it is being used, whether a Council needs to warn of risks depends on a range of factors and legal advice should be sought. 

When warning about a risk using signs, the warning must be placed somewhere that would be effective to deter a person from engaging in the behaviour. In its discussion of causation, the Court determined a sign would have had no effect unless placed at the point of descent. 

There are other ways in which a Council may warn about foreseeable risks of injury besides the erection of signs. For instance, this may be achieved by publishing information on websites or on social media. There are inherent limits to the effectiveness of such measures, not least of which may be obtaining useful images of risky areas and locations and presenting these in a way which resonates with users of those sites.

Many cases in this area are concerned with the need for the placement of signs in the areas in question. The effectiveness of electronic information and warnings is yet to be tested. Councils need to bear this in mind when they are creating promotional material for tourists using public spaces for which they are responsible.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.