Public Liability

Public liability claims involve various types of incidents that cause injury such as falls in public places (supermarkets or malls), and injuries sustained in school playgrounds, parks, recreation areas, theatres and even private homes. Other injuries which may be compensable include dog bites and injuries caused by faulty products such as food, medicines or machinery.

Generally, public liability claims could be said to cover all claims for injury or damage other than from motor vehicle accidents, medical negligence and workers compensation.

If the incident results in death as a result of the negligence of the offending party, the spouse, children and parents of the deceased may be entitled to claim compensation.

Eligibility for compensation

To be eligible for compensation the injured party must prove negligence. That is, it must be proved that another party was at fault in causing the injury. In the case of a dog bite, for example, negligence may be shown if the dog’s owner inadvertently left a gate open, enabling the dog to access public places and attack members of the public. In a supermarket where an injured party may have slipped on a dropped grape or lettuce leaf, it would be necessary to show that the supermarket failed to have in place a regular system of cleaning to prevent such incidents.

Provided the physical or psychological injury sustained by you in the accident or incident was caused by the negligence (or fault) of another party, and the injury significantly impaired your ability to lead a normal life for a period of at least 7 days after the incident and/or you have incurred medical expenses at the prescribed amount you may be entitled to claim compensation.

Factors limiting claims and reducing compensation

Various factors may limit or exclude your claim for damages, the most common being:

the fact that you were partly at fault for the incident which caused injury;
your intoxication by way of drugs or alcohol;
the fact that certain parties, such as road authorities or other government bodies, may be exempted by legislation from liability for certain actions or a failure to act;
where the risk of injury is deemed obvious and you failed to take reasonable steps to avoid it.

We can explain how these issues may apply to your particular circumstances when discussing your claim.

Making a public liability claim

If we are of the view that you have a claim, on your instructions, we will notify the offending party or their insurance company on your behalf. Thereafter, we will gather medical evidence in relation to your injuries. If there is a dispute by the offending party or their insurer regarding liability, we will investigate the circumstances of the incident which resulted in your injuries. Finally, we will enter into negotiations with a view to finalising your claim as soon as possible.

Time limits for making a public liability claim

If you are over 18 years, you have 3 years from the date of the incident to lodge and settle a claim with the insurer. If the claim fails to settle, court proceedings must be filed before the 3 year anniversary of the incident. This is known as the “statute barred date”.

If you are late in filing proceedings you will not be able to claim compensation without making an application to the court which may, in certain circumstances, grant an extension of time.

If you are under 18 years at the time of the incident, you have 3 years from the date of your 18th birthday to issue court proceedings. However, at any time after the incident your parent or guardian can instruct solicitors to bring a claim for compensation on your behalf. It is not always necessary to wait until you are 18 years. Much depends on the nature and long term consequences of your injuries.

Compensation payable

The categories of compensation are also known as “heads of damages”. Not all heads of damage may be applicable to you and will depend on your personal circumstances. Therefore, your entitlements may or may not include the following:

An amount for pain, suffering and loss of the amenities of life (that is the extent to which your ability to engage in sport, leisure activities and so on has been restricted). This amount is based on a scale between 0 and 60, where 0 represents the most trivial injuries and 60 represents the most serious, short of death.
Where you have been incapacitated for work, with the exception of the first week, an amount equivalent to any past loss of earnings (excluding any taxation which would have been paid) and (if appropriate) an amount to cover any future loss of earnings or loss of future earning capacity.
Treatment expenses reasonably incurred at the recommended rates including the cost of hospital admissions, medical treatment, chiropractic therapy, physiotherapy, pharmaceuticals and rehabilitation, and an allowance for future medical treatment.
Where, as a result of your injuries, a spouse, domestic partner, child or parent has been obliged to carry out domestic and personal services on your behalf, you may claim compensation for the voluntary services that were provided.
Where domestic services may be required due to any incapacity resulting from your injuries, an award may be made for past future paid services.
Likewise, if you required and/or will require the services of a personal carer, an award may be made for the costs of such services.
If you require equipment, aids and appliances, vehicle or home modifications by reason of your injuries, an award to cover the associated costs, together with the costs of future replacements, if applicable.
Reimbursement for travelling expenses incurred directly as a result of travelling to and from appointments for medical treatment.
A contribution towards your legal costs.

Assessing compensation

Compensation is assessed with reference to the evidence supporting your claim. Therefore, in the initial stages of a claim, time is taken to collect the evidence required.

We will obtain a report from the general practitioner who treated you for your injuries and, depending on the nature of the injuries, we may need to obtain specialist reports. Copies of all medical reports obtained are forwarded to the offending party or their insurer, which is also entitled to arrange for you to attend independent medical examinations to obtain further medical reports. Your general practitioner and medical specialists will provide opinions on the nature of your injuries, whether your condition has stabilised and is capable of final assessment, and whether you have been left with permanent disabilities which may affect your work and/or domestic capacity. It is not advisable to settle the claim when the full consequences of your injuries are not yet known.

If you have sustained financial loss we will need to obtain copies of your taxation documents, pay advices, sick certificates and other information from your employer to assist in progressing your claim.

Timeframe for settling a claim

This depends on how long it takes for your injuries to stabilise to the point where it is possible to assess the loss flowing from them, and any residual impairments. Only when your injuries have stabilised is it possible to assess your future medical treatment needs, any future domestic services which may be required and future economic loss from a reduced earning capacity. If your injuries are not serious then it is reasonable to expect that your claim would resolve within 12-24 months.

If liability is in issue the finalisation of your claim may be further delayed. Liability becomes an issue when the offending party or their insurer does not accept responsibility for the incident which caused your injuries. In such a situation we will investigate the circumstances of the incident by inspecting the scene, interviewing witnesses, and if required, obtaining a report from an appropriate expert. The insurer may undertake similar investigations.

How much will my claim cost?

Upon the successful conclusion of your claim the offending party or their insurer will pay a contribution towards your legal costs. However, there will be a gap between your actual legal costs and the contribution paid.

Repayment of Centrelink, Medicare and private health insurance benefits

If you received Centrelink benefits after the incident and your compensation includes an amount for economic loss, Centrelink will be entitled to recover some, and possibly all, of the post accident benefits paid. If your award is substantial you may also be precluded from claiming benefits for a period after the conclusion of your claim.

Likewise, if Medicare has paid certain medical services associated with your injury, or if you have claimed the costs of treatment from your private health insurer, you will need to repay these benefits on receipt of compensation.

If you would like to discuss a potential public liability claim with us, and it is our opinion that your claim would not succeed and you do not pursue the claim, we will not charge for your initial consultation. Should you proceed on the basis that you have a potential claim, our team of experts will guide you through the legal processes to ensure your rights are protected and you receive fair compensation.

If you need any assistance contact one of our lawyers office@paulalvaro.com.au or call (08) 8202 0099 for a no-obligation discussion and for expert legal advice.