What Is Public Liability Claims
If you have been injured in a public place or on someone else’s commercial or residential premises, you may be entitled to claim compensation for your injury. Commonly called a ‘public liability’ claim, we will help your recover the maximum compensation you deserve.
Simply put, public liability claims arise out of another person acting in a way, or failing to act in a particular way, that has resulted in injury. Common scenarios include:
- Bringing a claim against a local council for failing to fix a hazard on a footpath that caused a pedestrian to trip and injure themselves.
- Bringing a claim against a shopping centre or supermarket for allowing a slipping hazard, such as a spilt drink or spilt produce, to remain on the floor that caused a shopper to slip and injure themselves.
- A person intentionally injuring another, such as an assault.
- A person failing to control their pet and allowing it to injure another person, such as an injury resulting from being bitten by a dog.
- Bringing a claim against a landlord or real estate agent for a failure to repair a part of the premises which has then caused an injury to the tenant.
- An injury sustained by a person or a member of a person’s family due to poor care and supervision, such as children injured at school or adults injured whilst living in aged care.
- Injuries sustained because of faulty or defective products.
- Bringing a claim for an injury sustained in a sporting event due to some hazard that is not a normal part of the game, such as being injured by hazards left on the ground or its surrounds (sprinklers, fences, rubbish).
- Injuries sustained during dangerous recreational activities when avoidable risks have not been controlled by the operator.
If your injury has not been sustained in the course of your employment, due to the driving or use of a registered motor vehicle or due to medical negligence, it will likely fall within the definition of a public liability claim.
With careful and thorough preparation of the evidence necessary to support your public liability compensation claim, we will help you to recover the compensation that you deserve and deliver what others cannot.
When can I seek compensation for the injuries I have suffered?
If you have been injured:
- on someone else’s commercial premises (for example, in a supermarket or in the common area of a building) or private residential premises,
- in a public place such as on a footpath, in a park, in a shopping centre, restaurant or bar; or
- because of someone else’s actions or inaction,
- because of someone not controlling their animal,
you may be entitled to compensation for your injuries.
To successfully bring a claim against the person or company alleged to have caused your injury (“the prospective defendant”), you must prove that the prospective defendant owed you a duty of care and that their failure to meet the standard of care required of them caused your injury.
The other person is only going to be liable to pay you compensation if a reasonable person in their position should have done something or avoided doing something to prevent or minimise your risk of injury. If the failure to have taken appropriate steps to minimise that risk has led to you suffering injury, you will be entitled to compensation.
A successful public liability claim usually requires expert witnesses, such as engineers, to assess the hazard that has caused the injury and provide a report demonstrating what steps the prospective defendant should have taken to avoid the hazard arising or to have removed the hazard after it came into existence.
For example, the law requires that a supermarket or shopping centre has a reasonable system of inspection and cleaning in place. Although the law does not require the operator of the supermarket or shopping centre to compensate injured shoppers for hazards that arise that are outside their control, it does require that the inspection and cleaning system will remove any hazards (such as a spilt drink or produce fallen on the floor) within a reasonable amount of time. If the inspection and cleaning system in place is not reasonable (it leaves too much time between inspections) or is not being followed (staff were not inspecting the floor and removing hazards within the time periods specified), then the operator may be found to have breached its duty of care to its customers. If a customer is injured due to a hazard that should have been removed, then they will be entitled to compensation.
What compensation am I entitled to claim?
The law aims to return a person to the position they were in had the injury not occurred.
Although a Court cannot reverse the permanent impact of an injury, it can award compensation to financially compensate you for those impacts.
The types of compensation an injured person is entitled to claim due to their injury are:
- Past lost earnings and past lost superannuation.
- Future lost earnings and future lost superannuation.
- Past and future medical expenses and expenses incurred due to seeking treating (such as travel expenses);
- Past and future lost care and assistance (such as requiring a family member or a professional to provide home care services).
To claim compensation for pain and suffering, as well as proving that the prospective defendant was negligent, they must also prove that they have suffered a ‘significant injury’. This term is defined by the Wrongs Act 1958 (VIC). This law requires that the injury or injuries be assessed by a specially accredited doctor to be above a minimum impairment percentage before a claimant is entitled to seek pain and suffering compensation.
The specially accredited doctor will assess your injuries in accordance with a specific set of impairment guidelines. Based on such factors as restriction of movement, type of surgery performed and the nature of the injury sustained, the guidelines will calculate the level of permanent impairment suffered by the claimant.
- For spinal injuries, 5% whole person impairment or more.
- For all other physical injuries, 6% whole person impairment or more.
- For psychiatric injuries that have arisen directly because of the accident, 10% whole person impairment or more.
If assessed above one of these thresholds, you are entitled to seek pain and suffering compensation as well as the other types of compensation listed above.
Why do I need a lawyer in my public liability claim?
Obtaining liability evidence about the prospective defendant’s breach of duty of care and medical evidence linking the breach to the injuries sustained and the level of permanent impairment suffered can be complex. Most prospective defendants or their insurance companies will deny a claim or offer a significantly reduced amount of compensation (usually limited to the payment of some medical expenses) without this evidence.
The amount of compensation you receive is dependent on the strength and weaknesses of your evidence. How well your public liability case has been prepared and presented to the defendant’s insurer or the Court is of paramount importance.
For example, if you have strong evidence in support of your claim and your claim has been thoroughly prepared, the defendant is likely to pay you a greater amount of compensation to settle your claim out of court. A well-prepared claim will increase the risk of the insurer or the defendant losing your case and having to pay more of your legal costs. On the other hand, a poorly prepared claim will result in the insurer or the defendant being unlikely to pay you any or very little compensation as their risk of losing your case at Court is much lower.
Therefore, thorough and careful preparation of every aspect of your claim is of paramount importance.
Our commitment to careful and thorough preparation of every aspect of a claim is second to none. We seek out the best evidence to support your claim and to understand how the injury suffered by you impacts every aspect of your life. We know how to get even the most complex and difficult compensation claims through to completion at less cost than our competitors and deliver results that others simply cannot.
What is the process for making a public liability claim?
Early preparation is the key to making a successful public liability claim.
A claim commences by us taking detailed instructions about how your injury occurred and what permanent impact it is likely to have on you.
To start the claim, we will put the prospective defendant on notice and seek any documents, photographs, CCTV footage, cleaning and inspection reports or applicable policies and procedures from that defendant or any other source of relevant information. Based on the information received from you and from these requests, we will identify what expert liability evidence will be required in order to prove your case.
Once your injury is stable and the permanent impact of the injury on you is known, we will gather your medical records and arrange for you to be examined by an accredited medical doctor who specialises in assessing the permanent impairment of injuries similar to yours. We will also commence gathering details of your lost earnings, medical expenses and care needs.
The Wrongs Act 1958 (VIC) requires us to serve a document with particulars of your claim and the Certificate of Assessment provided by the accredited medical doctor to the prospective defendant. The prospective defendant can challenge the impairment assessment provided by our doctor or accept the assessment. If the prospective defendant does not respond to service of the Certificate of Assessment within 60 days, they are considered to have accepted the assessment.
If the prospective defendant challenges the assessment, they are required to refer the claimant to an independent tribunal of medical specialists called the Medical Panel. Two or more doctors will be chosen by the Convenor of the Medical Panel to reassess a claimant and determine whether they meet the significant injury threshold applicable to the type of injury they have suffered. The decision of the Medical Panel is usually final and binding.
If the prospected defendant accepts or fails to challenge the impairment, or the Medical Panel finds that the impairment is above the threshold, the claimant can then proceed with their claim for pain and suffering compensation as well as their financial losses.
Once the claimant’s entitlement to seek compensation for pain and suffering is determined is usually when an informal conference will be arranged with the prospective defendant to settle the claim, if possible. If the prospective defendants don’t respond to a request or refuse to attend an informal conference, or an informal conference doesn’t not result in an offer to settle the claim that the claimant agrees with, Court proceedings are then commenced.
What happens when court proceedings are commenced?
Just because your matter is commenced in court does not mean that it will not settle out of court.
At the start of a Court proceeding, the Court will provide the parties a timetable in which to complete certain steps in preparation for a hearing of the case. These steps include requirements for both sides to exchange their relevant documents, to ask questions of each other that are required to be answered as if they are being answered in Court, exchange their medical and negligence evidence and attend a mediation with an independent mediator. All of these steps must occur before the hearing of the case and are required in order that both sides know what evidence and arguments are going be brought to the hearing. The effect of these steps is to encourage the parties to settle the case by agreement if possible. Most cases will settle during this process.
It is at the informal settlement conference or mediation stage where most of the matters settle. The matters that do not settle will proceed to a final hearing. Only a small portion matters proceed to a final hearing and get decided by a judge.
If we can demonstrate to the insurer or the defendant to your claim that you have a good prospect of winning your case, the insurer or the defendant is more likely to offer you an amount to settle your claim out of court. Therefore, thorough and careful preparation of your claim is fundamental to achieving an out of court settlement of your claim.
What are the time limits for making a public liability claim?
There is a strict 3-year time limit for bringing a public liability claim unless you were under 18 years of age or suffering from a disability which left you unable to understand your potential rights to bring a claim, in which case there is a 6-year time limit.
The Court can allow a claim to proceed after these time limits have passed under very limited circumstances.
Do I have to pay tax on the amount of compensation I receive because of an injury?
Any amount you receive in a lump sum as compensation for your injuries because of the negligence of another person or organisation are not considered taxable income nor a capital gain. Therefore, compensation received is tax free.
What will it cost me, and will the defendant or insurer pay my costs?
If we take on your claim, we guarantee that you will pay nothing upfront. We will only send you a bill and charge you professional fees and disbursements if your claim has been successfully completed and only at the conclusion of your claim.
We will recover most of your legal costs in addition to your compensation from the defendant to your claim, so that you pay less. We will also cap your professional fees (being the professional costs left over after we have recovered the maximum amount of professional costs from the defendant, normally called ‘solicitor-client’ costs) with our industry leading fee cap so that you pay less. Our professional fees will be lower than of our major competitors, as we do not rely on large teams of administrative staff so that large amounts of unnecessary time are not spent on your file.
Legal costs are fees and charges for preparing and running your claim. These costs consist of:
- professional fees which are charges for the work we do in the preparation of your claim.
- GST which is charged on our professional fees and barrister’s fees.
- disbursements which are money we pay others on your behalf to prepare your claim. These include things like the cost of your treating clinical notes, medical reports, experts’ reports, court filing fees and process service fees etc.
- barrister’s fees are fees charged by a barrister if one is needed in your claim.
This contribution that the defendant or the insurer makes towards your legal costs is known as “party-party” costs. These costs are payable by the defendant or insurer are calculated in accordance with a scale set by the Courts and are likely to be less than your total legal costs. The difference between the total legal costs and the party-party costs is the amount that is payable by a client.
With our industry leading cap on the recovery of legal fees from clients, we guarantee that the difference between your total professional fees and those that are recoverable from the defendant will not exceed a certain percentage of your compensation amount. If your professional fees are less that the percentage cap you will be charged the lesser amount.
Contact us today, and start with a free consultation by “Make a Booking” to receive our preliminary expert advice.
