The Public Liability Guide to Seeking Injury Compensation
In Australia, injuries in public places or on private property are quite common. Unfortunately, these injuries can lead to numerous issues, including financial and emotional stress, persistent pain, and suffering, as well as the inability to work, among others.
What is a public liability claim?
Let’s start by defining public liability claims to provide you with a clear understanding of how they can benefit you.
Defining public liability claims
A public liability claim is a claim that does not involve a motor vehicle or a work accident. It covers accidents and injuries suffered in accidents on public and private property, and many recreational, amusement and other day-to-day activities.
The basic compensation legal principle to be entitled to receive public liability compensation is to prove fault (aka negligence) by whoever is responsible for the place where the accident happened, or the operator of the activity involved in the accident. In other words no compensation payouts from public liability claims will be paid unless the injured person can prove, on the balance of probabilities, that the accident was caused by someone else’s fault.
Examples of common public liability compensation claims
There are many examples of public liability claims.
The most common and obvious are slip and fall accidents on slippery substances and/or wet floors in , shopping centres, office buildings, etc.
Other examples of public liability cases include:
- Faulty playground equipment in children’s parks
- Faulty rides in amusement parks
- Collapsing balconies
- Tripping hazards in car parks
- Inadequately anchored jumping castles
- Boating accidents
- Collapsing ski-lifts and chairs
- Objects falling on aeroplane passengers
- Spillages of hot liquid and food on restaurant and café patrons
- Collapsing sinks
- Open drains
- Inadequate fencing
- Lack of handrails
- Dangerous use ese of accelerants in fire pits
- Faulty or broken stairs and steps
- Faulty equipment, e.g. parachutes
- Lack of security in hotels to keep people safe from drunken and violent behaviour.
- Dog attacks
There are many other examples.
Examples of negligence/fault by those who operate or are in charge of premises and activities include:
- Failure to inspect.
- Failure to supervise cleaning operations
- Failing to install safe balcony balustrades and handrails
- Failing to provide adequate lighting on stairwells
- Dangerous use of accelerants in fire pits
- Dangerous manoeuvres on waterways
- Failure to repair broken steps and stairs etc
- Failure to adequately anchor jumping castles
- Failure to adequately repair potholes on roads
Again, there are many, many examples where injuries are caused by the fault of others.
The one areas of public liability law where it is not necessary to prove negligence are injuries caused by attacks by unrestrained dogs (the liability of the dog owner is strict with no need to prove that the dog owner was negligent) and accidents on aeroplanes.
The purpose of this article is not only to explain the nature of public liability claims, but also to provide answers to frequently asked questions from people who have been injured in a public liability situation, and who are seeking advice as to whether or not they may be entitled to be compensated for their injuries and losses.
Examples of frequently asked Public Liability questions include:
- What does an injured person need to prove to have a successful claim?
- How long do public liability compensation claims generally take to be finalised?
- What compensation is available to an injured person who can prove that the accident was someone else’s fault?
- What is the amount of compensation generally awarded to the people who are injured in public liability incidents?
- Are public liability compensation claims likely to be settled, or do they always have to go to court hearing by a judge?
Against whom are public liability compensation claims made?
Public liability compensation claims are generally made against the owners or operators of the places where the accidents happen.
Public liability claim process
The usual process is for the injured person to contact a personal injury lawyer with experience in public liability compensation claims in order to provide the lawyer with all the facts of the accident and injuries so that the lawyer can advise as to whether or not a claim is likely to be successful. If the advice is that a claim can and should be made, the lawyer will obtain as much of the evidence of fault as is available, and as soon as possible and then send a letter of demand to the company or corporation responsible for the accident.
A competent public liability compensation lawyer will request that any CCTV footage of the place where the accident occurred is preserved and any incident report .
Where practicable, the competent public liability compensation lawyer will also go to the scene of the accident before the conditions change and interview all eye-witnesses to the accident before memories fade.
How are most public liability compensation claims finalised?
The vast majority of public liability claims are settled “out-of-court” at settlement conferences or mediations between the lawyers for the injured person and the insurance company. Only a low percentage of public liability claims end up having to go through a court hearing.
What is the limitation period to commence court proceedings in a public liability claim?
Generally speaking, the limitation period in New South Wales for commencing court proceedings is three years from the date of the accident. There are exceptions. Expert legal advice will be required if a claim is out of time.
How is a public liability payout formulated?
As with all personal injury cases, there are two arms to a public liability compensation claim.
The first arm is liability. In other words, was the accident and injury caused by the negligence/fault by another person, company or organisation?
The law of negligence in public liability claims can be complex because the Civil Liability Act sets out a number of defences available to the insurance companies of the person, company or corporation against whom the claims made. For example, an insurer can successfully argue that the injuries were caused to during a dangerous recreational activity such as skydiving, snowboarding, rock climbing, surfing, water skiing. The law in this regard can be very harsh on injured people because the operators of dangerous recreational activities virtually owe no duty of care to their patrons to keep the activity safe. In other words, the participant in the dangerous recreational activity does so at his or her own risk. Another defence available to insurers is that the alleged offender gave a warning of the risk involved in the activity,and/or that the accident occurred was the result of an obvious risk.
Another defence, as in all personal injury compensation claims, is that the injured person contributed to his or her injuries by their own negligent conduct. This is called “contributory negligence”. If a defence of contributory negligence is successful, any compensation awarded to the injured person will be reduced by the percentage of the contributory negligence found against them.
The second arm of a public liability compensation claim is “quantum”. In other words, what amount of compensation ought to be awarded to the injured person to properly compensate the person for the injuries and losses suffered as a result of the defendant’s negligence.
Each case is different. Some claims will include claims for loss of earnings and earning potential, whilst others will not. Similarly, some claims will include the cost of past and future domestic assistance, created by the injuries inflicted on the injured person, whilst others may not. The same principle applies to claims for past and future medical treatment and medical costs. Claims for compensation for “pain and suffering” apply in all cases but the Civil Liability Act has set a maximum amount which is available only to those who have suffered injuries judged to be “a most extreme case” whilst, at the other end of the scale no compensation is available for pain and suffering unless the injuries and losses suffered by the injured person constitute at least 15% of a most extreme case.
The evaluation of a “most extreme case” is a judicial or legal one, and not a medical one. every judge who hears a public liability compensation claim will probably have a different view as to the percentage to be allocated to particular injuries and losses on the “percentage of a most extreme case” scale. There is no threshold involving an assessment of whole person impairment as exists in compensation claims arising from the use of motor vehicles or arising from injuries suffered at the workplace.
All the various items of compensation i.e. pain and suffering, past and future medical expenses, past and future economic loss and past and future care are paid in a single, “once and for all” tax-free lump sum.
Compensation payouts in successful public liability compensation claims can be very significant and go a long way towards easing the financial and emotional stress the injuries have e.
What is public liability insurance?
Almost every household, apartment blocks, commercial buildings, sports arenas, council property, amuseme3nt parks, children’s playgrounds have public liability insurance to cover the cost of compensating those who have been injured as a result of the negligence/fault of occupiers and operators.
What is not commonly known is most household insurance policies cover injuries inflicted by unrestrained dogs.
When a public liability compensation claim is made against a property owner or activity operator, the claims are referred to the relevant public liability insurer who, in many cases, will instruct lawyers to provide advice on whether or not the owner or operator is likely to be found guilty of negligence, and to provide an assessment of risk i.e. whether or not it is likely that the claim will succeed, and if so, what compensation is likely to be awarded against the insurance company. The insurance company also seeks advice as to what strategies ought to be adopted, and what defences ought to be raised, to keep any payment of compensation to a minimum.
It is not unusual for insurance companies to endeavour to settle public liability compensation claims quickly, to get the claims off their books and to minimise risk of exorbitant legal costs involved in allowing cases to go through the whole court process, not only to their own lawyers but to the lawyers for the injured claimants.
Are you entitled to make a public liability claim?
Just because you may have been injured in public place or in a public liability situation does not necessarily mean that you will be entitled to be compensated for your injuries and loss. It is much more difficult than that. Firstly, you have to prove, on the balance of probabilities, that the injuries were inflicted by the negligence of a person, company or corporation, that the injuries were not inflicted during the course of a dangerous recreational activity or after you had received a warning of the risk, or if the risk of the injury was obvious.
Once liability is likely be proved it is then a question of assessing the amount of compensation i.e. the amount to which you should be entitled to put you in the same position, as far as this can be done by the payment of money, that you would have been in had you not been injured, and also to provide compensation for your pain and suffering.
Generally, court proceedings must be commenced within 3 years of the accident. There are some exceptions to this rule.
The circumstances under which you may be able to receive public liability compensation
There are many different types of situations in which you may be entitled to receive compensation if you make a public liability claim. These include, but are not limited to:
- Injuries in shopping centres
- Injuries in supermarkets
- Injuries in parks, leisure centres or other public places (footpaths, manholes, playgrounds, car parks etc)
- Injuries in private buildings (gyms, pubs, clubs, hotels, restaurants, office buildings etc)
- Injuries at schools or daycare centres
- Injuries by contractors on worksites
- Injuries caused by unrestrained animals, especially dogs
- Injuries suffered on rental or private properties
- Injuries suffered during recreational and sporting activities
- Injuries suffered on boats, private boats, yachts, chartered boats, cruise ships etc
- Injuries on aeroplanes and at airports.
How do you make a public liability claim?
There are several steps which must be completed to make a public liability compensation claim viable. The guide below will help you to gain a better understanding of what you need to do if you are ever injured in a public liability situation, and you wish to seek public liability compensation:
- Document the incident
If at all possible, you should report the accident to the manager or operator of the premises where you suffered your injuries and insist that an incident report be completed. It can also help if you take photographs of the area where the accident occurred and write down the description of the conditions or hazards which led to your injuries e.g. faulty step. In an ideal world you should also obtain details of any eyewitnesses to the accident.
It is acknowledged that public liability accidents happen quickly, and almost always painful and can be very embarrassing e.g. a slip on a slippery substance in a supermarket. It is only human nature for the person who has slipped and fallen to want to leave the scene as quickly as possible.
- Report the incident or accident
As soon as practicable after the incident or accident you, or someone you trust, should go to the property and report the accident and insist that an incident report be made, which will be vital evidence later in your claim, when memories are likely to have faded. It is also prudent for the place where the injury occurred to be carefully photographed and also to check whether there is likely to be any CCTV footage of the area.
- Engage a competent public liability lawyer
Not all lawyers know about the ins and outs of public liability compensation claims. It is important that you consult an expert in this area who will be totally familiar with the Civil Liability Act, the likely defences to be raised by insurers, what needs to be done as quickly as possible to secure evidence e.g. obtaining CCTV footage. The expert public liability lawyer will also be able to advise you as to whether or not your claim has potential to be successful, based on the evidence available and the evidence likely to be obtained. The sooner this is done the better before accident sites change and/or memories fade.
- Give notice of your public liability compensation claim
A competent public liability compensation lawyer will send the party responsible for the accident a letter of demand as soon as possible, and request the CCTV footage and the incident report.
- Negotiate a possible settlement
The more information your lawyer can provide to the public liability insurer or its lawyers, the more likely it will be that the insurer will be willing to negotiate a settlement of your claim. Insurers actually like to complete claims, rather than drag them out. Claims, unlike red wine, do not improve with age.
A competent public liability compensation lawyer will provide you and the insurer or its lawyers with a detailed assessment of damages/compensation days or weeks before the date of a settlement negotiation/conference. The better prepared a case is, the more likely that the case will be settled for an appropriate sum.
If a settlement negotiation fails to resolve a claim it will be your decision as to whether or not to take the matter further by commencing court proceedings. You should rely on the advice of an expert public liability compensation lawyer. No doubt you will be advised that all litigation carries risks and that every endeavour should be made to settle claims before a protracted and expensive court hearing.
Who pays the legal costs in a public liability claim?
As with almost all personal injury cases, the loser pays the legal costs. In public liability compensation claims, any settlement amount will include a the your legal costs which are payable by the insurer.
One of the risks of commencing court proceedings in a public liability compensation claim is that if your claim is unsuccessful i.e. that the judge finds in favour of the defendant/insurance company, you will be ordered to pay the defendant/insurance company’s legal costs. They can be substantial.
How long does a public liability compensation claim normally take?
Typically, public liability compensation cases take about 12 to 18 months before they are finished. That’s because it takes some time for injuries to stabilise and for the long-term prognosis for these injuries to be known. In cases involving children it is often important to wait until the child has reached maturity before the claim is finalised. That’s because compensation is paid as a once-and-for-all lump sum. There is no coming back for more if the injuries cause more suffering and loss in the future than was expected.
It is foolish for public liability compensation claims to be settled prematurely, particularly if liability is reasonably clear-cut. That’s because you may well end up being under-compensated if the well-known future complications of injuries eventuate e.g. osteoarthritis in orthopaedic injury cases which normally doesn’t occur for several years after the accident.
With infants, it should be remembered that a child is not entitled to receive any compensation until the child turns 18. Furthermore, any settlement negotiated during a child’s minority will have to be approved by a judge who will need to be satisfied that the settlement is in the child’s best interests. For infant claims settled before age 18 the settlement money is generally paid to the New South Wales Trustee and Guardian, to be invested on the child’s behalf until the child’s 18th birthday. The same applies to any sum of money awarded by a judge at a court hearing.
There are many factors which influence how long the public liability compensation claim will take in addition to those already mentioned above. For example:
- The complexity of your case
If your injury is simple and it’s relatively easy to prove fault, a quick settlement should be possible. However, if injuries are more severe and the long-term prognosis is unlikely to be known for some period of time, it is prudent to wait until a reasonable assessment of future losses and difficulties can be ascertained. Injury cases can also be complex if the injured person has suffered an aggravation of pre-existing injuries and restrictions e.g. an injury inflicted on a pre-existing lower back problem. In such cases the insurer is unlikely to argue that the current complaints are unrelated to the accident and would have happened anyway.
- The insurer’s willingness to negotiate and settle claims
Sometimes insurers dig in their heels and refuse to negotiate for settlement, forcing the claim to a court hearing. A lawyer acting for an injured person in a public liability compensation claim cannot force an insurance company to be reasonable.
- Subsequent injuries
It sometimes happens at a person who has been injured in a public liability situation and starts a public liability compensation claim is injured in another accident. This makes the assessment of compensation for the original injury far more complex.
Do you need to go to court to obtain compensation in a public liability claim?
Most cases settle without having to commence court proceedings, let alone proceed to a court hearing. It is always prudent to provide certainty by settling rather than taking chances in court. Court proceedings can be very stressful and also exceedingly expensive and risky. However, sometimes there is no choice but to go to court, for example if the defendant refuses to accept liability, insists that you are to blame for the accident, is unwilling to be reasonable in its assessment of the compensation to which you might be entitled, if the insurer is particularly obstructive or if your claim is a particularly complex one, with multiple possible responsible parties and complex medical issues.
The alternative to going to court in public liability compensation claims
There are many opportunities to negotiate settlements of claims without having to go to court. Just because a claim does not settle at the first settlement negotiation conference does not mean the claim will not ultimately settle. If the parties cannot reach settlement, courts will often order the claim to be mediated with an official mediator whose job is to “clash heads” and make the party see sense to try and achieve an amicable settlement without taking up court time.
How much can you get for a public liability claims payout in NSW?
Every case is different. The value of each claim is not set in stone. The amount of compensation depends on many different factors including age, circumstances of the accident, the extent of injuries etc.
There are many factors which influence a public liability compensation payout:
- The extent and/or permanence of your injury
- The likelihood of you winning your case
- The amount of medical expenses incurred throughout the claims process and the likely medical expenses to be incurred in the future
- The time you may have missed from work or be restricted in your ability to work and to earn your pre-accident income
- The ongoing costs of your injuries over your lifetime, and the level of care and treatment you may require in the future, because of your injuries
- The psychological toll that your injuries may have caused you, for example depression, anxiety, panic attacks etc.
It is impossible to say what a particular case is worth without all the medical evidence and other evidence needed to prove not only past loss but also, more importantly, the losses likely be suffered in the future. Most cases are about the future rather than the past, particularly with younger claimants who have their lives stretched out before them.
Will I be compensated for pain and suffering?
In New South Wales, successful claimants in public liability compensation claims will generally receive an allowance for pain and suffering which will be lumped in with the other heads of damages e.g. loss of income, cost of care, medical expenses etc.
Compensation for pain and suffering is not available to everyone who is injured in a public liability compensation claim. Unless injuries are found to be released 15% of a most extreme case, no compensation is payable to the injured person. From 15% to 30% of a most extreme case a sliding scale reduces the percentage so that the quantum/amount of compensation for pain and suffering is lower than expected. If injuries are serious and are assessed to be greater than say 30% of a most extreme case the allowances for pain and suffering can be very substantial.
There is a limit to the amount an injured person, no matter how serious the injuries may be, can receive for pain and suffering. At the present time the maximum payout you can receive for pain and suffering currently sits at $722,000. This maximum amount is increased on 1 October annually.
What are the most common types of public liability compensation claims?
Here are some of the most common types of claims that our public liability lawyers at Stacks Goudkamp have extensive experience in helping clients receive compensation they deserve.
Slip and fall injuries most commonly occur in public places such as in supermarkets shopping centres, slippery falls in commercial buildings etc. These slip and fall injuries do not have to occur on public property to be compensable. They can just as easily occur on private property or on rental properties.
Examples of common trip, slip and compensation claims include:
- Slips on dropped items in supermarkets
- Slips on food and drink in bars, restaurants and food courts
- Trips on uneven steps, broken steps, uneven paving, uncovered manholes
- Falls from unstable balconies
- Falls caused by collapsing balconies
Injuries inflicted by unrestrained dogs and other animals can be extremely devastating, both physically and psychologically. Some dogs are extremely vicious and dangerous and should always be restrained. However, unfortunately this is not always the case and some dogs are allowed, either inadvertently or on purpose, to roam the streets. The dog owners are responsible for injuries inflicted by their unrestrained dogs, whether the dog owner was negligent in allowing the dog to be unrestrained, or not. This is known as “strict liability”.
Rental property injury compensation
Some people are injured on and may be entitled to receive compensation from the insurer for the landlord. Examples of common rental property compensation claims include:
- As a result of faulty electrical supply causing fire
- Absence of smoke alarms
- Result of falling lights
- Injuries caused by defective roofs or floors, or balcony railings.
Boating accident claims
Many injuries happen on the water. Sailing, water skiing and other maritime activities can be hazardous if proper care is not taken.
- Examples of boating injury compensation claims include:
- Crush injuries caused by fall between a boat and a pier
- Spinal fractures arising from driving a boat at an excessive speed and recklessly over a wave
- Lacerations and soft tissue injuries caused by a vessel that was not properly secured
- Serious laceration caused by boat propellers
- Catastrophic injuries caused by a head-on collision with another vessel
Finding the right public liability lawyer to help you
Public liability compensation claims can be very complex and difficult to navigate.
Some personal injury lawyers do very little public liability and thus lack the expertise to provide you with the optimal advice and performance.
It is important that you secure the services of an expert an .
Compensation Guid Payout
It is essential to understand that the compensation received from public liability claims can vary significantly based on the circumstances of each case. As a seasoned personal injury lawyer, I can affirm that numerous factors influence the payout amount.
These include the severity of the injury, the duration of your recovery, any lasting disabilities, and the impact on your quality of life. Furthermore, compensation may cover not just medical expenses but also lost wages, pain and suffering, and even psychological trauma.
To ensure you receive the maximum public liability claims payout, it’s crucial to meticulously document all related expenses and consult with an expert public liability lawyer who can navigate the complexities of public liability law. Remember, each case is unique, and a professional can provide guidance tailored to your specific situation, maximising your compensation payout.
Stacks Goudkamp are experts in claims
At Stacks Goudkamp, we specialise in helping those injured in public liability circumstances to understand their legal rights to compensation and to prepare your case to the nth degree to optimise the eventual financial outcome for you. Our public liability compensation lawyers have an outstanding track record in obtaining compensation for those injured in public liability compensation situations.
Stacks Goudkamp offers a “no win, no fee” service so that if, by chance, your claim is unsuccessful either in being settled or obtaining a verdict in your favour Stacks Goudkamp will not charge you any fees. Nor will Stacks Goudkamp seek a refund of any disbursements paid on your behalf e.g. full medical reports, experts’ reports, Court filing fees.
If you or someone near to you has suffered an injury in a public liability situation you should Contact us without delay, as time limitation periods apply and, even more importantly, it is merely prudent for investigations into the circumstances of the accidents to be undertaken as close to the date the accident as possible.
