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Public Liability Claims Explained

Tuesday, May 03, 2016

 

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.

The law is different depending on the circumstances in which you sustain an injury.

If you sustain an injury at work you can sue your employer however this is modified by the Workers Compensation Act (NSW) 1987.

If you are injured as a result of a motor vehicle accident then this is modified by the Motor Accidents Compensation Act (NSW) 1999.

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.

These claims are now in a large part modified by the Civil Liability Act 2002 (NSW).

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.

 

What is a slip and fall claim?

A “slip and fall” is a term used to describe an injury where someone slips and falls on a spill or food substance on the ground whilst on the premises of a business or home.

You can make a claim under the public liability insurance of the owner of the premises only if the fall:-

  • Was due to the failure of the owner of the premises to take reasonable care for your safety whilst on the premises; and
  • You have sustained injury as a result of the fall.

Just because you have slipped and fell does not entitle you to compensation automatically.

You must be able to prove that the cause of your fall was as a result of the failure of the owner of the premises to ensure your safety whilst on the premises.

Usually, slip and fall claims are made against supermarkets where there is a substance on the floor which causes someone who is browsing in the aisle to fall and injury themselves. This type of claim will only be successful where the owner of the premises has failed to institute a proper system of cleaning and inspection to ensure that the premises is reasonably safe for pedestrian traffic.

If a proper system of inspection and cleaning was in place these claims are difficult to win.

 

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 on (02) 8518 1120 or info@garlingandco.com.au. Alternatively, feel free to browse our past public liability cases.  

About Matthew Garling.

Matthew Garling, Founder of Garling & Co is a NSW Law Society Accredited Specialist in Personal Injury Law. He specialises in compensation law and has acted on behalf of thousands of injured people in work accidents, motor vehicle accidents and negligence cases over the last 20 years.

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