QLD Personal Injury - Accidentally Injured on Neighbours Property

[Jack323]

I recently jumped my mate's fence to get my mobile phone I forgot at his place, and while doing so, I fell onto his neighbour's property where there are dangerous sheets of tin hanging from the fence. I sustained severe cuts and multiple injuries from the fall. Is the neighbour liable to be sued for the personal injury sustained?

 

[Rod]

So, you were too lazy to walk to the gate or fence opening, you carelessly jumped a fence, fell onto someone's property and somehow believe this other person should be responsible? Do you watch a lot of American TV?

*Sighs*

While I sympathise with your injuries, I can't help but think the problem is not with the neighbour.

 

[Sophea]

The case of Hackshaw v Shaw establishes that an occupier can owe a duty of care to a trespasser if it can be proven that it was foreseeable that the trespasser could be injured by the negligent acts of the occupier. Similarly, Australian Safeway Stores Pty. Ltd. v. Zaluznal holds that same duty of reasonable care is owed towards invitees, licensees and trespassers.

Notwithstanding this, I don't know if you have compelling prospects of succeeding in making a claim for personal injuries, as the occupier would only be liable if he failed to take action to prevent the risk of foreseeable injury. It will be difficult to prove that it was foreseeable that persons jumping his neighbour's fence may fall onto his property and injure themselves on the materials stored there. You could also be liable for contributory negligence for failing to take care for your own safety.

 

[Rod]

Similarly Australian Safeway Stores Pty. Ltd. v. Zaluznal holds that same duty of reasonable care is owed towards invitees, licensees and trespassers.

I firmly believe owners do not owe a 'full duty of care' to trespassers. Owners have an obligation to not set traps to injure or maim or kill them, but a duty of care to a trespasser seems to be taking the property owners responsibilities too far. Hackshaw v Shaw involved a situation where the owner was present and shot at the trespassers/their stolen car. It is distinguished from the present situation.

I much prefer the approach stated in Railways v. Quinlan (1964) AC 1054, where their Lordships said:

"... so long as the relationship of occupier and trespasser is or continues to be a relevant description of the relationship between the person who injures or brings about injury and the person who is injured - an important qualification - the occupier's duty is limited in the accepted terms. It is so limited because the character of trespassing is such that the law does not think it just to require the occupier to speculate about or to foresee the movements of a trespasser ...".​

 

[Sophea]

I much prefer the approach stated in Railways v. Quinlan (1964) AC 1054,

Comments based on the court's preference are generally more helpful.

 

[Rod]

The court has clearly articulated that trespassers are not treated the same as visitors/friends/family. The court also says, however, that owner/occupiers do have a limited duty of care to trespassers (eg can't shoot someone for trespass).

The ability to successfully sue for negligence in the above situation may be possible, but it is not probable (in my view).

For all we know this is a homework question for someone doing tort law over summer