No one wants a pool fence – it ruins the look.
No one wants a child to drown or near drown in their pool.
Both of these statements are probably accurate but the first is a lifestyle issue and the second is a life changing event for all concerned.
South Australian laws require that pools be secured and that a permanent fence that is an effective barrier to young children is installed. In some cases the pool may not be required to be fenced depending on its age if the property is not for sale. It is not the intention of this article to deal with the laws in detail and further information about this can be obtained.
Is it sufficient to simply have a pool fence that complies with the laws? The answer is both yes and no. That may be sufficient to comply with your statutory obligation but it may not protect you from civil liability.
The usual common law rules with respect to providing a reasonably safe environment continue to apply. This includes ensuring that the fencing is secure, that gates and doors operate as they should and that there are no objects which could be used as a “ladder” for a child to get over a pool fence.
If a child drowns or suffers injury, you may still have a civil liability responsibility for damages. If you have household insurance then this would normally cover such an event. However you would need to consider whether a failure to properly maintain your fence may be a breach of the insurance policy and invalidate your cover. If you do not have insurance or your insurance is inadequate then you will be personally liable for any damages that a Court may award. If a child suffers a brain injury from a near drowning the award of damages could easily exceed $10,000,000.00.
In summary, the short check list is:-
- Ensure that your pool fence complies with the current Regulations;
- Ensure that the pool fence and gate operate properly and there are no “ladders”;
- Ensure that you have insurance and that you have adequate insurance cover;
- You should ensure that you are aware of your obligations under the insurance policy;
- When you have children using your pool, you should ensure that there is proper supervision at all times.