Agony Uncle: Can your organisation avoid responsibility for injuries on the premises?

Borthwick Chris Jul2019lg

Dear Agony Uncle,

I am the president of a cemetery trust, and we have rough, uneven surfaces and loose gravel areas in the monumental section of our cemetery.

During recent training, we learned that where there were conditions like these in the cemetery, then a warning sign should be erected.

My questions is, should the warning sign state the specific problem so visitors are fully aware of it? For example, “Visitors, please be aware of the uneven, loose surface around monumental graves. Please exercise care when walking in these areas to prevent personal injury.”

Or could the sign be general and non-specific? For example, “ Visitors, please be aware that the Cemetery Trust accepts no responsibility for any personal accidents or injury which may occur in this cemetery.”

Mr C. McGraves, Victoria

Dear Mr McGraves,

The law doesn’t permit you to pass off your responsibility to make the area safe. You’re required to consider the people who are being invited on to your land, to determine what foreseeable risks exist if they behave the way one would expect people to behave (so, not being necessarily sensible and obedient), and to minimise those risks. In fact, first-year law students are taught that if a trespasser falls into a hole and breaks a leg you still might be liable, if you knew that trespassers were likely to be using the land.

The second sign you’ve proposed is

(a) uninformative and

(b) ineffectual.

You’re asking the visitor to assume the risk, and that works only within the general principle that a person coming on to your land is entitled to assume that you haven’t got any foreseeable but undisclosed hazards waiting for them.

Remember, it’s not simply a matter of liability. On the whole, we would rather prefer, given the choice, that nobody got hurt, whether they’d assumed responsibility for their injuries or not. The point of the sign is to disclose hazards so that visitors can avoid them and not fall over.

If you just put up the second, non-specific, sign, it has a real possibility of making your legal situation worse rather than better, as the court might decide it meant you knew perfectly well that there were risks but hadn’t bothered to tell the visitors what they were.

Specific and detailed is the way to go.

Agony Uncle

Has your organisation got a problem? A deal-making dilemma or a constitutional conundrum? Found yourself in a personality pickle or a media muddle? Our Community's resident Agony Uncle, Chris Borthwick, is here to help. Email your question to [email protected].

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