When to Make a Public Liability Claim

CO-AUTHOR: Brooklyn Younger

KEY INSIGHTS:

• You may be eligible to make a Public Liability claim if you have sustained an injury due to the failure of another person to take reasonable care.
• To make a claim you will need to demonstrate that there was a duty of care, that this duty was breached and that as a result of this breach you suffered a loss.
• It is important that you gather evidence of the injury, the risk that caused it, and loss you have suffered, as close to the date of injury as possible to establish and corroborate your claim.
• Many Public Liability claims settle before they reach Court, providing a cost efficient and streamlined resolution to your claim.

When sustaining an injury, it may be difficult to understand what type of personal injury claim you may be entitled to and who may be considered responsible for your accident. This blog will explore Public Liability claims, what they are, whether you may be eligible to make such a claim, and examples of evidence that you may need to substantiate a claim.

What are Public Liability claims and what law are they governed by?
A Public Liability claim is a claim that is made when you have sustained an injury due to the failure of another person to take reasonable care. People responsible for the management of public and private spaces such as carparks, shopping centres, schools, footpaths and rental properties owe a duty of care to the people who use their spaces. If you have been injured in one of these places, or somewhere similar, you may be eligible to make a Public Liability claim.

The claim is for the losses that you have suffered because of the injury you have sustained. Injuries can include a range of circumstances including slips and falls in supermarkets, tripping on poorly maintained or dimly lit pathways or stairs, animal attacks, or sporting incidents. However, Public Liability claims might also be made where no physical injury has been sustained, such as where individuals have suffered psychological injury as a result of traumatic events. Sexual assault or harassment may also form the basis of a Public Liability claim. For example, a student who has been sexually assaulted at a school may be entitled to make a Public Liability claim against the school if it can be shown that the school had knowledge of the risk.

Losses that may be covered include medical expenses, loss of income, travel expenses, care and support required during recovery, and pain and suffering, as well as loss of enjoyment of life caused by physical or psychological injury.

Public liability claims in New South Wales are governed by the Civil Liability Act 2002 (NSW). This Act provides the principles by which the existence of negligence in Public Liability cases are determined, as well as the amount of compensation that is payable for a claim.

It is important to know that there is a limitation period to Public Liability claims. This means that you may not be able to claim for your injury if it is more than 3 years since the date of your injury. If you think you may be approaching the end of this three-year period, please reach out to our Personal Injury team at Coutts Lawyers to ensure that you get advice on your matter before this limitation applies.

How to make a Public Liability Claim
Public Liability claims can be long and complicated due to the difficulty in demonstrating the duty of care and knowledge of the risk that caused the injury. To make your Public Liability claim, you will need to book an initial consultation with our team to discuss your claim and the steps that will need to be taken to bring your claim. To make a successful claim you will be required to demonstrate three main points: that there is a duty of care, that there has been a breach of this duty of care and that as a result of the breach you have suffered a loss.

Three tips for starting a public liability claim:

• Ensure that you report your incident.
• Take numerous photos and obtain details of any witnesses, if possible.
• Make an initial appointment with one of our experienced Personal Injury Lawyers at Coutts now to obtain initial advice.

If you choose to proceed on the advice of one of our Lawyers, Coutts will give notice of a claim to the person responsible for the public space and will commence investigations into their liability.

What Evidence do you need to show for a Public Liability claim?
You will need to show the loss you have suffered is a result of the injury. Images and video footage of the area, such as CCTV footage, are useful to allow for an accurate depiction of the environment at the time of the injury in order to establish your claim. For example, images of the footwear you were wearing at the time of a slip and fall incident will assist an understanding of how the incident occurred. It is important that you gather this information as close to the date of injury as possible in case any changes to the site of injury take place.

To show that there was a breach of a party’s duty of care, you must be able to demonstrate that there was actual knowledge of the risk of injury. This meant that in the case of Botany Bay City Council v Latham (2013) 197 LGERA 211, the Council were found to require knowledge of the particular uneven paver which was alleged to have caused the injury, not just the general risk of raised pavers on the path. One way to demonstrate that the responsible person had actual knowledge of the risk of injury is that there had been prior complaints about the risk lodged. In Eddy
v Goulburn-Mulwaree Council [2022] NSWCA 87, Mr Eddy was able to demonstrate that the Council had actual knowledge of this risk of injury as there had been two prior complaints as to the instability of the ramps as they were unsecured. Our team at Coutts Lawyers will be able to assist you in gathering evidence to demonstrate that the entity in question had actual knowledge of the risk from which you suffered an injury.

You will also need to demonstrate evidence of the loss you have suffered which may be economic or non-economic. Evidence that will assist in establishing loss from the injury includes medical expense receipts, medical reports and pay slips if the injury has affected your ability to work.

It may be that the other party seeks to avoid liability by alleging contributory negligence for your failure to take reasonable care for your own safety. Circumstances such as your intoxication or knowledge of the risk will affect their liability for your injury and can lead to a reduction of damages you are entitled to.

Finalising a Claim
Many Public Liability claims will settle through negotiations or mediations prior to commencing Court proceedings. This reduces the costs of making a claim and streamlines the process, reducing the emotional toll that proceedings can take and ensuring a timely resolution to your claim. Our Personal Injury team will be able to advise you through the process to ensure that you receive the compensation you deserve. If the settlement fails, then your claim may proceed to Court. Whether you pursue this path is dependent on the evidence that is available and whether liability for the injury has been accepted by the other party.

Coutts Lawyers and Conveyancers are here to assist you in navigating the complex legal processes of making a Public Liability Claim. If you have suffered an injury in a public area or on private property, please contact our team today to protect your rights and secure the compensation that you deserve.

Karena is a Partner at Coutts and is the Head of our Injury Compensation (with extensive knowledge in personal injury) and Employment Law teams. She is passionate and dedicated to helping her clients understand their rights and obligations and advising them on the best course of action to achieve their desired outcomes. It is her practical and client-orientated approach that has attributed to her authentic reputation positioning her as a highly regarded compensation and employment lawyer.