Public liability claims explained

Can I sue the person responsible for my injuries?

Yes. Broadly speaking, if you sustain an injury as a result of the negligence of another, you can sue them for the injury and its consequences.

Other circumstances where you may wish to sue for injuries might be as a result of:

• An assault by another person;
• Negligence of a doctor;
• A slip and fall when you are on someone else’s premises;
• An injury sustained whilst on public land or;
• Injury at work where it was caused by someone other than you employer.

The Act sets out three conditions that must exist before negligence can arise.

A person is not negligent in failing to take precautions against a risk of injury unless:

• It was a risk of which the person knew or ought to have known.
• The risk was not insignificant.
• A reasonable person in the circumstances would have taken those precautions.

When considering these matters the court must take into account the following:

• The probability of the harm occurring if care were not taken.
• The likely seriousness of the harm.
• The burden of taking precautions to avoid the risk of harm
• The social utility of the activity that creates the risk of harm.

Each case is determined on its own facts and circumstances applying the principles as we have outlined above.

The law of negligence is complex and you will need the assistance of a lawyer who is an expert in personal injury law to advise you whether or not you have a claim for compensation under the Civil Liability Act.

What is negligence?

The law of negligence in NSW is now modified by the Civil Liability Act 2002 (NSW).

An essential element of negligence is the existence of a duty of care. The courts over the years have accepted categories of duty of care or that a special relationship exists between parties that a person must take reasonable care to avoid acts or emissions which are likely to injury another in such a relationship.

Examples would be an employee and an employer, an occupier and an entrant upon premises, a doctor and patient, a school and its students. These are the most common categories.

In most cases there is little issue that a duty of care exists as most injuries would fall under an accepted category where a duty exists.

The Civil Liability Act then sets out three (3) conditions that must exist before negligence arises.

A person is not negligent in failing to take precautions against a risk of injury unless:

• It was a risk of which the person knew or ought to have known.
• The risk was not insignificant.
• A reasonable person in the circumstances would have taken those precautions.

When considering these matters the court must take into account the following:

• The probability of the harm occurring if care were not taken.
• The likely seriousness of the harm.
• The burden of taking precautions to avoid the risk of harm
• The social utility of the activity that creates the risk of harm.

Each case is determined on its own facts and circumstances applying the principles as we have outlined above.

The law of negligence is complex and you will need the assistance of a lawyer who is an expert in personal injury law to advise you whether or not you have a claim for compensation under the Civil Liability Act.

How is compensation paid under a negligence claim?

To receive compensation you must notify the person you believe has been negligent and is responsible for the injury you have sustained and that you wish to make a claim for compensation.

In the vast majority of claims the injury will be covered by insurance and you will receive a response from an insurance company to your claim.

You can then negotiate, with the assistance of a lawyer, a resolution of your claim directly with the insurance company or if you are unable to reach an agreement you must commence a claim for compensation in an appropriate court of NSW.

Compensation under a claim for negligence is called Damages.

Damages is broadly defined to include any form of monetary compensation.

Damages usually includes monetary compensation in the form of:

• Non economic loss which means a lump sum amount for pain and suffering and loss of enjoyment and expectation of life.
• Economic loss which is compensation awarded for loss of income such as wages and payment of medical expenses.

Damages are payable at the conclusion of a negligence claim as a lump sum amount for both economic and non economic loss sustained as a result of the injury.

What type of compensation is payable in a negligence claim?

Compensation in a negligence claim is known as Damages.

Damages are broadly defined to include any form of monetary compensation.

There are 2 broad types of compensation payable:

1. Non economic loss
2. Economic loss

Non economic loss

Non economic loss includes compensation for pain and suffering, discomfort, inconvenience, loss of pleasure derived from work, hobbies and sport, marriage and child bearing, loss of independent, curtailment of life, loss of expectation of life and disfigurement.

You are entitled to receive a lump sum amount of compensation for non economic loss as determined by a table under the Civil Liability Act. Your injuries are compared to that of a most extreme case and you are awarded an amount of money based on what percentage of a most extreme case your injury is compared to a most extreme case. The maximum amount payable under the Civil Liability Act is $551,100.00 for 100% of a most extreme case.

Economic loss

Economic loss covers the loss of the following:

• Past and future loss of income.
• Past and future payment of medical expenses.
• Past and future loss for the capacity to care for oneself and dependants.
• Loss of superannuation entitlements.

Payment of compensation or damages is made as a once off lump sum amount at the conclusion of a claim. The nature and extent of your injuries and how they affect you on a day to day basis will determine the amount of compensation you are entitled to receive.

How are negligence claims finalised?

Negligence claims are finalised by one of two ways:

1. Agreement with the negligent party (or its insurer) or;
2. An order of a NSW court.

It is normal to give notice of a claim for negligence to the party you consider has been negligent and to negotiate with them (or usually the insurer) a resolution of the claim prior to the commencement of court proceedings. Often claims can be resolved by agreement with an insurance company prior to commencing any court proceedings.

If however you are unable to resolve a claim by way of agreement then you must file a claim in a NSW court which has jurisdiction to deal with your matter.

Filing a Statement of Claim in the Court commences a formal claim and will after about 10 months ( if you have still not been able to reach an agreement) determined by a Judge. The Judge will hear all the evidence and determine if the defendant was negligent, and if so, how much compensation you are entitled to receive.

Are there time limits to make a negligence claim?

Yes. There are various time limits depending on the type of negligence claim and how you are injured. Time limits vary considerably depending on the type of matter such as motor vehicle accidents, work accidents, medical negligence claims and public liability claims.

As a broad rule, you should commence a claim within three years from the date of the accident. However the law is not so straight forward. The three year period begins and ends at different times for different types of accidents.

For some types of claims there are also preliminary steps that must be taken before you can claim.

For example, to make a claim for a motor accident you must notify the police within 28 days of your accident and then you must lodge a claim form within six months.

For a work accident, you need to notify your employer immediately and lodge a claim within 28 days.

For some other types of negligence claims, you have three years from the date of “discoverability”. That is, the date which you knew or ought to have known that you had a right to make a claim.

For negligence claims, there is also a 12 year long stop limit which means that after 12 years, you can no longer claim.

The law in relation to time limits is as you can see complex. If you do miss a time limit you can sometimes get an extension of time to commence proceedings from the court. Again, the rule is different depending on the different type of accident you may have.

The best thing to do is to be aware that time limits do exist and to contact a Lawyer who specialises in personal injury as soon as possible if you think you may have a claim.

What is public liability insurance?

Public liability insurance protects you and the business from a claim for damages as a result of injuries sustained to a person or a person’s property. It protects a business against a claim for injury, loss or damage arising from negligence.

If you make a claim against a business or person for negligence then they will notify their public liability insurer of the claim and then the insurer will step in and run the claim in place of that person. The insurer will then be responsible for payment of any damages (monetary compensation) ordered to be paid by a court.

If the person or business that has been negligent has public liability insurance, this does not automatically mean you are entitled to compensation. You still must be able to demonstrate that the person or business was negligent and as a result of that negligence you have sustained injury.

What is product liability insurance?

Product liability insurance covers a business when they sell, supply or deliver goods that may cause injury, death or damage. Such insurance covers the business if there is a failure with the product that results in an injury.

For example, if a chair is supplied to a business and a customer sits on the chair and the chair collapses as a result of poor manufacturing then a claim would be made under the business’ product liability insurance against the manufacture of the chair.

What is an occupier’s liability claim?

The law of occupier’s liability is the duty of care by an occupier of premises or land towards visitors on those premises, whether the visitor is invited or uninvited and who suffer injury during the course of their visit.

Occupier’s liability is that part of the law which sets the safety standards for households, companies, tenants and anyone else who is in control of a land or building so they should make sure that those premises are safe for anyone who enters onto the premises.

If you are injured whilst on the premises occupied by another and you sustain injury as a result of the negligence of the occupier, then you can make a claim under the occupier’s public liability insurance.

Can I resolve a negligence claim without a Lawyer?

Yes you can however you are likely to obtain significantly less compensation then had you retained the services of an expert personal injury lawyer.

A Lawyer who is a specialist in the area of personal injury law will have great experience in dealing with insurance companies and be able to advise you as to the type of compensation you are entitled to receive as a result of your injury and how much compensation is reasonable and fair.

Most claims resolved by people who are not represented by a Lawyer are resolved for usually about 20% of their real value.

You should never speak to an insurance investigator without speaking to a personal injury lawyer first. Anything you say to an insurance investigator can and will be used against you. You must be very careful with your words which can be twisted by an insurance investigator.

You should never negotiate a resolution of your claim without speaking to a personal injury lawyer as you will get much less and any settlement will end your rights to compensation for ever so you need to make sure you are getting the best result you can.

It is important to engage at an early stage in any claim an experienced personal injury lawyer and particularly a Lawyer who is an accredited specialist in personal injury law by the Law Society of NSW.

Should you wish to discuss your claim please do not hesitate to contact us.

Public Liability Claim Process

The public liability claim process typically involves the following steps:

• Consultation: You’ll meet with a public liability lawyer to discuss your case and determine whether you have a valid claim.
• Investigation: Your lawyer will investigate your case, gathering evidence, interviewing witnesses, and consulting with experts.
• Settlement negotiations: Your lawyer will negotiate with the other party or their insurance company to reach a fair settlement.
• Court proceedings: If a settlement cannot be reached, your lawyer will represent you in court.

Time Limits for Making a Public Liability Claim

In most cases, there is a time limit for making a public liability claim. This time limit can vary however in NSW you need to make a claim within 3 years from when you know or ought to have known you had a right to make a claim. It’s safest to ensure a claim is made within 3 years from the date of the injury. It’s essential to consult a public liability lawyer as soon as possible to ensure that you meet the time limit for making your claim.

Can I make a public liability claim if I was injured on a construction site?

If you were injured on a construction site, you may be entitled to compensation under workers’ compensation laws. However, if your injury was caused by the negligence of another party, such as the head builder, site owner or a subcontractor, you may also be able to make a public liability claim.

What should I do if I receive a settlement offer from the other party’s insurance company?

If you receive a settlement offer from the other party’s insurance company, it’s important to consult a public liability lawyer before accepting or rejecting the offer. Your lawyer can help you determine whether the offer is fair and negotiate a higher settlement if necessary.

Can I make a public liability claim if the incident occurred on a private property?

Yes, you may be able to make a public liability claim if you were injured or suffered damages on private property, such as a private residence or a business. However, the circumstances of the incident will need to be assessed to determine whether you have a valid claim.

How long does it take to resolve a public liability claim?

The time it takes to resolve a public liability claim can vary depending on the complexity of the case and the willingness of the other party to negotiate a fair settlement. Some claims can be resolved within a year or so while others may take several years.

What happens if the other party denies liability?

If the other party denies liability for your injuries or damages, your lawyer will need to gather evidence to support your claim and negotiate with the other party or their insurance company. If a settlement cannot be reached, your lawyer may need to take your case to court.

Can I make a public liability claim if I was partially at fault for the incident?

Yes, you may still be able to make a public liability claim if you were partially at fault for the incident. However, the amount of compensation you receive may be reduced to reflect your level of fault.

What should I do if I’m injured in a public place?

If you’re injured in a public place, you should seek medical attention immediately and report the incident to the owner or operator of the property. You should also document the scene and gather any witness statements or other evidence that may be relevant to your claim. Finally, you should consult a public liability lawyer as soon as possible to ensure that your legal rights are protected.

How much compensation can I receive for my public liability claim?

The amount of compensation you can receive for your public liability claim will depend on a variety of factors, including the severity of your injuries or damages, the level of fault of the other party, and the economic and non-economic losses you have suffered. A public liability lawyer can help you assess your claim and determine the potential value of your compensation.

Can I still make a public liability claim if the incident occurred outside of business hours?

Yes, you can still make a public liability claim if the incident occurred outside of business hours. The owner or operator of the property has a duty of care to ensure that the property is always safe for visitors, regardless of whether it is during business hours or not.

What if the incident occurred in a different state or territory to where I live?

If the incident occurred in a different state or territory to where you live, you may still be able to make a public liability claim in that jurisdiction. However, it’s important to consult a public liability lawyer who is licensed to practice in that jurisdiction to ensure that your claim is handled correctly.

Can I handle my public liability claim without a lawyer?

Technically, you can handle your public liability claim without a lawyer. However, hiring a public liability lawyer can increase your chances of receiving fair compensation for your losses. A lawyer can also handle the legal aspects of your case, allowing you to focus on your recovery.

What is the role of insurance in public liability claims?

Insurance can play a significant role in public liability claims, as the other party’s insurance company will often be responsible for paying any compensation awarded to you. It’s important to understand the insurance policies involved in your claim and to work with a public liability lawyer who has experience dealing with insurance companies.

Can I make a public liability claim for emotional or psychological harm?

Yes, you can make a public liability claim for emotional or psychological harm. This type of harm is known as non-economic loss and can be more difficult to quantify than economic losses, such as medical expenses and lost income.

What is the duty of care in public liability claims?

The duty of care refers to the legal obligation of the owner or operator of a public place to take reasonable steps to ensure the safety of visitors to their property. If the duty of care is breached, and a visitor is injured or suffers damages as a result, the owner or operator may be held liable.

What is the difference between a settlement and a judgement in a public liability claim?

A settlement is a negotiated agreement between the injured party and the other party or their insurance company, which resolves the claim without going to court. A judgement is a decision made by a court after a trial, which determines the amount of compensation awarded to the injured party.

What is the difference between a public liability claim and a workers’ compensation claim?

A public liability claim relates to injuries or damages suffered in public places due to the negligence of others, while a workers’ compensation claim relates to injuries or illnesses suffered in the course of employment. Workers’ compensation claims are typically governed by different laws and regulations than public liability claims.

What if the other party is uninsured or cannot pay compensation?

If the other party is uninsured or cannot pay compensation, it may be more difficult to recover compensation for your losses. However, a public liability lawyer can help you explore other options for recovering compensation, such as through your own insurance policies.

What is the difference between a public liability claim and a product liability claim?

A public liability claim relates to injuries or damages suffered in public places due to the negligence of others, while a product liability claim relates to injuries or damages suffered as a result of a defective or dangerous product. Product liability claims can be more complex and may involve multiple parties, including manufacturers, distributors, and retailers.

What Compensation Can be Claimed?

If negligence is established, you will be entitled to compensation for the following types of damages:

1. Pain and suffering and loss of enjoyment of life, a lump sum payment for the injury sustained and the effects on you;
2. Out of pocket expenses: includes past and future medical expenses, as well as any other injury-related expenses incurred due to the injury
3. Loss of income: past and future loss of income
4. Care and assistance: domestic assistance from family, friend, or commercial care

The public liability compensation is paid as a once-off lump sum amount at the conclusion of the claim by way of agreement or determination by a Court.

You can only claim compensation for your injuries once, it is important to maximise your entitlement to compensation as once the claim is finished you will be responsible for all future medical treatment and any ongoing loss of income.

Each claim is different and success depends on the circumstances of how the injury happened.

It is important to speak to an Accredited Specialist in Personal Injury Law as soon as possible after an injury to see if you may have a right to make a public liability claim.  At Garling and Co, all lawyers are Accredited Specialists in personal injury law and available to assist you with you claim.  Contact us today by telephone on (02) 8329 9500, visit our website or click here to complete at free case assessment.