SA Personal Injury Damages for Trip and Fall in Rental Property?

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12 August 2014
I have reported to my landlord for several weeks now the missing and separated pavers in the driveway.
It's my access to my letter box, I fell and re-injured my total knee replacement swelling, restricted movement and it appears damage to my prosthesis.

Can I sue for personal injury, damages and negligence?



Hi Pepe,

From the limited information you have provided, it sounds as though you may have grounds to seek compensation for negligence on the part of your real estate agent.

Whether or not you will be successful in proving that the real estate agent / landlord (both will likely be joined to any court proceedings) is liable for your injury and that you are entitled to compensation will depend on various matters. If you can prove that you gave notice to the real estate agent of the state of the pavers and that they posed a risk of injury, but the real estate agent failed to take action to have them repaired within a reasonable time then this will count in your favour. However on the other hand, if you knew about the risk of injury posed by the pavers, the real estate agent's lawyers will argue that you should have taken care for your own safety - knowing that they were dangerous. Where aggravation of prior injuries are involved - there is also usually arguments that you should have taken more care than usual to prevent re-injury and when it comes to damages - they will likely discount any entitlement to compensation that you will get, on the basis that your knee was not 100% to begin with.

Just to give you a bit of background as to how the court would decide a matter like South Australia, the Civil Liability Act 1936 (SA) provides that a person will not be liable for harm unless:
  • the person knew or ought to have known of the risk (i.e. the real estate agent needed to be aware of the state of the pavers and that they posed a risk of injury - and perhaps also that you had a pre-existing injury that may be aggravated);
  • the risk was not insignificant; and
  • a reasonable person in that person’s position would have taken precautions against the risk (i.e. a reasonable real estate agent would have taken precautions to prevent the risk of injury).
The relevant factors a court must take into consideration when determining whether a reasonable person would have taken precautions against the risk include:
  • the probability that the harm would occur if precautions were not taken;

  • the likely seriousness of the harm;

  • the burden of taking precautions to avoid the risk of harm; and

  • the social utility of the activity that creates the risk of harm.
I would go and see a personal injury lawyer, many can provide an obligation free appraisal of your circumstances and tell you what you should do.