Sisters In Law: Can a homeowner be sued for a dangerous hazard?

A Sydney woman has been left “terrified” after she realised her home could see her being sued for hundreds of thousands of dollars.

Welcome to Sisters In Law, news.com.au’s weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn advise on whether a homeowner can be sued for a slippery driveway.

Question:

I live at the top of a very steep driveway which can be very slippery when it’s wet. I’ve fallen myself a few times and know it’s a hazard but I don’t have the means to do anything about it. I’ve always been terrified the postie will stack it and try to sue me. The other day, one of my son’s friend’s mums came over and I warned her about the driveway but am I more at fault if someone falls and I’ve warned them? – Sandra, NSW

Sandra knows the driveway is a hazard but doesn't have the means to do anything about it. Picture: iStock

Answer:

You haven’t mentioned whether you own or rent the property.

If you are renting, you should speak with your landlord and ask them to rectify the slipperiness.

If your landlord doesn’t fix the issue and someone suffers an injury as a result, a civil action could be brought against them.

However, if you own the property and someone slips on the driveway and is injured, it is you who could be sued.

To avoid this scenario, you should firstly fix the problem with your driveway. This is the right thing to do, regardless of the threat of being sued.

You should also ensure your public liability insurance will cover injury to any people entering your property.

You have a responsibility to those who enter your premises (which includes your yard and driveway) to ensure they are not harmed.

You won’t be responsible for failing to take steps to minimise the risk of injury unless:

2. The risk was foreseeable (that is, you knew or ought to have known about the risk)

3. The risk was not insignificant, and

4. In the circumstances, a reasonable person who was in your position would have taken those steps to minimise the risk.

If you own the property and someone slips on the driveway and is injured, it is you who could be sued. Picture: iStock

To determine whether a reasonable person would have taken steps to minimise the risk of injury, the following must be considered:

1. The probability that the injury would occur

2. The likely seriousness of the injury, and

3. The cost of taking precautions to avoid the risk of injury.

As you know about the risk, and there is a real chance that someone could slip down your very steep driveway and be injured, it’s likely a claim against you could be successful.

It’s unlikely you would need to replace your whole driveway to minimise the risk of injury, due to the cost involved in this.

But it may be reasonable to take other precautions such as painting your driveway with a non-slip surface, installing a stepped walkway, or warning people by erecting a sign.

If someone was injured and sued you, then you may have defences to their claim, such as:

1. You warned them not to walk on the driveway, but they did so anyway and they would then also be partly, or wholly, responsible, or

2. The person was intoxicated and this contributed to their injury.

If someone was injured on your driveway, you may be concerned that apologising for the slipperiness would be admitting your fault.

An apology doesn’t mean you are admitting responsibility. Picture: iStock

You may be relieved to know that an apology does not mean you are admitting responsibility, and would not be relevant to determining whether you are liable for compensation due to their injuries.

If you have public liability insurance then you should carefully check the terms, as any issue that you know about but have not rectified – such as your slippery driveway – could be excluded from coverage and you would be personally responsible for any compensation an injured person may be entitled to.

If you don’t have public liability insurance you’ll end up footing the bill for any successful claim against you, which could be hundreds of thousands of dollars, depending on the seriousness of the person’s injuries.

This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor.

If you have a legal question you would like Alison and Jillian to answer, please email [e-mail]

Get more from Alison and Jillian on their Facebook page