A public liability claim is a potential entitlement to compensation for injuries or harm suffered in a range of circumstances due to the negligence of another person or entity.
Many public liability claims arise when a person is injured in a ‘public place’, meaning an area or property open to the public (or class of persons) such as a shopping centre, mall, car park or entertainment complex. Public places can include government-owned facilities such as schools, council sporting fields or swim centres, or privately-owned premises for general patronage, such as restaurants and clubs.
Public liability claims are commonly made against an owner or occupier of premises where the injury occurred. The claim is made through the public liability insurer.
Am I entitled to make a public liability claim?
If you have been injured and suffered loss in circumstances other than at work or in a motor vehicle accident, and due to somebody else’s negligence, you may be entitled to make a public liability claim. Typical claims include:
- slips and falls in shopping centres, malls and car parks;
- trips over unattended items or obstacles left in walkways or clearways;
- injuries sustained when using faulty equipment in a public place (broken chairs in a café, malfunctioning escalators in a shopping centre, faulty rides in a theme park);
- school or playground accidents;
- sporting accidents;
- dog attacks.
What do I need to prove?
Owners and occupiers of public places and business enterprises owe their patrons and visitors a duty of care to provide a safe environment and to prevent ‘reasonably foreseeable’ harm. Individuals must also exercise a duty of care to prevent harm to others. Each case must be considered in light of its unique circumstances.
Generally, a successful claim will require proof that:
- the defendant (person or entity against whom you are claiming) owed you a duty of care to prevent a reasonably foreseeable risk of harm;
- the defendant breached that duty of care, either by a positive act or omission and was therefore negligent; and
- you suffered loss which was directly caused by that negligence.
What compensation might be awarded?
A successful public liability claim may award compensation (damages) from one or more of the following categories:
- past and future expenses for medical treatment, medication, physiotherapy, rehabilitation and other therapies, travel costs to attend treatment, domestic or personal assistance and retraining;
- economic loss for past and future earnings;
- gratuitous care services (domestic assistance provided by another person for the claimant for which the claimant is not liable to pay);
- loss of capacity to provide domestic services (to the claimant’s dependants);
- loss of superannuation entitlements;
- non-economic loss (pain and suffering) for more serious injuries.
These entitlements and the value of compensation will depend on the extent of injuries and the loss incurred because of those injuries. Certain ‘thresholds’ apply for some categories which are taken into account during settlement negotiations, or if the matter proceeds to Court.
Injured – what next?
Proving negligence can be complex so it is important to try to obtain as much evidence and detail of the incident as possible.
If you sustain an injury in a public place such as a shopping centre, report it to the manager and security personnel and request a copy of the incident report and any CCTV footage. Take photographs of your injuries and the scene of the incident, or ask somebody else to assist. As soon as practical, write down the events leading up to and after the incident, keeping a diary of your medical expenses, attendances for treatment, time off work and need for assistance.
Strict time limits apply for making a public liability claim so it is important to get legal advice early.
Your lawyer will take details of your injuries, your domestic situation, your education, training and employment, work history, payslips and income tax returns and any previous health issues, injuries or claims.
Copies of hospital records, clinical notes from your treating doctors, incident reports and witness statements are obtained to build a case to prove liability, to demonstrate the extent and impact of your injuries, and to support the losses claimed. For example, your injuries will be verified by your medical reports and your economic loss (based on your capacity for future earnings, but for your injuries) may be shown by your employment history and your intentions to train for advanced opportunities in the future.
Most public liability claims are settled out of Court between the claimant and defendant’s legal representatives. Settlement negotiations are encouraged (and often compulsory) before proceeding to Court.
If a settlement cannot be reached and your injuries are significant, your lawyer may recommend Court proceedings.
Conclusion
If you think you are entitled to make a public liability claim, you should arrange to see your lawyer as soon as possible. He or she will review your case, provide advice and obtain the appropriate evidence to lodge your claim within the prescribed time period.
Once your claim is lodged, your lawyer will guide you through the settlement process and help you achieve compensation that is fair and just.
This article is intended to provide general information only. You should obtain professional advice before you undertake any course of action.
If you or someone you know wants more information or needs help or advice, please contact us on (08) 8155 5322 or email [email protected].