In a recent Court case a young boy’s family sued the Town of Port Hedland for compensation for injuries to his hand. The boy was just under 3 years old. The family drove to a local hall where one of the children was going to a karate lesson. The young brother went off with his friends to play on a nearby gate. Usually the gate was kept locked but on the day of the accident it had been left unlocked. The kids were swinging back and forth on the gate when suddenly the boy’s fingers got crushed between the gate and the gatepost. His hand was badly injured such that he had to have his fingers amputated leaving only his thumb. The boy’s family sued for compensation.

There was no dispute that the Town of Port Hedland owed visitors to the property a ‘duty of care’. The real issue was just what did that duty entail: what would a reasonable local authority be expected to do; what precautions should a reasonable occupier take to make sure that somebody is not injured.  Only once a claimant can show what a defendant was supposed to do, can a Court then work out whether the defendant breached the duty of care. That process is usually worked out by going through the specific facts of the accident and looking at things like: is there some inherent risk in the premises; how likely is it that somebody could get injured; why is somebody on the premises; should the owner of the premises know that people will be on the premises; can a visitor reasonably appreciate how risky the premises are; what could an owner be reasonably expected to do about the risk.

In this case the risk was described as the risk that a child could seriously injure themselves by playing on the gate. Once that risk is described, the question then moves to whether the defendant should have known about that risk, and what could they should have done about it. The Court was not persuaded that Hedland should have known that children would ever play on the gate. The Court found that there was nothing about the gate that would attract children and in fact most of the time the gate was kept locked. In any event even if children were to play on the gate the Court decided that the risk of a child injuring themselves was very low; there was nothing inherently risky about playing on a gate. Another issue for the claimant was that he needed to prove what exactly the Town of Hedland should have done. The boy’s family claimed that Hedland should have kept the gate locked. The Court was not persuaded. The Court said that the gate was usually padlocked and so for the claimant to succeed he would pretty much have to persuade the Court that the gate should be padlocked all of the time. That would require too much of Hedland and so the Court dismissed that argument.

Ultimately the boy’s claim was dismissed.

The lesson of this case is that when making a public liability claim for compensation in Perth it is not enough to simply argue that the defendant owes you a ‘duty of care’. You need to prove what exactly you say the Defendant should have known, and what the Defendant should reasonably have done after it became aware of the risk, and, that they didn’t do it, and, that had they done it that the accident would never have happened. When you sue for compensation you need to prove from the particular circumstances of the accident that the defendant could have foreseen that there was a risk of somebody injuring themselves. You need to prove that there was something that could have been done that would have reduced that risk.  These are mostly factual enquiries. Each case is very different and if you are thinking of making a claim you need to think carefully about the facts of your case and chat to an experienced compensation lawyer in Perth about your accident.