Public liability compensation claims arising out of injuries sustained on residential property and rental accommodation are our expertise.
Homeowners, landlords and rental property management agents owe a duty of care to take reasonable precautions in response to known or suspected risks which pose a risk of injury to occupiers or visitors of a residential premises. Therefore, if you have been injured at someone else’s home or at your or someone else’s rental accommodation, you may be entitled to compensation.
What should I do after an incident and injury at a residential premises or rental accommodation?
It is important that you do following at the time or as soon as possible after your injury at residential premises or rental accommodation:
- focus on your injury
Seek first aid if necessary, as even a minor injury can become a lifelong condition without proper initial medical treatment.
Request for an ambulance to be called or attend an emergency department, if necessary.
At this stage, it is best to forget about any potential compensation claim you may have as a result your incident and concentrate on your health.
- get the names and contact details of any witnesses to your incident
If anyone witnessed your incident, you should speak to them and get their name and contact details.
An independent and unbiased version of events from a person or persons who witnessed your incident and how it occurred, but who have no interest in your compensation claim will be of great assistance to your claim and collaborating your evidence and version of events.
- report your incident
You must tell the homeowner or occupier of the residential premises or rental accommodation where your incident occurred and what caused your injury. It is best to report your incident in writing so that there is a paper trail.
In circumstances where the incident occurred on rental accommodation, the incident should be reported to the landlord or real estate property manager who is responsible for the property, as well as the occupier of that property.
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Request that an “incident report” be completed and request a copy for your records.
The question of who is to blame for your injury is best avoided at this stage. Even if you blame yourself, or if the person you report the incident to blames you for the incident, this does not mean that you do not have a claim for compensation.
- take photos and video of the area of your incident and of what caused your incident
Contemporaneous evidence of the site of the incident location and circumstances that led to your injuries provide invaluable assistance to the preparation of a public liability compensation claim. You can never have too much evidence, and if ever in doubt it is better to take a photo or make a record of it.
– Example
If you sustained an injury to your knee because your leg went through a rotten outdoor deck when you were visiting your friend’s house, you should take as many photographs or videos of the area of the deck involved as well as any other areas showing the condition of the deck. Photographs or videos from a distance so that one can get a general idea of the layout of the surroundings to your incident are also helpful. You should also take a photograph or a video of your injuries.
- locate any prior complaints made to the homeowner or occupier or landlord or real estate property manager
If you made prior complaints about the defect or hazard that cause your injury either to the homeowner or occupier or landlord or real estate property manager, then locate these complaints and put them into a chronological order [i.e., a timeline]. This will be invaluable evidence in demonstrating that requisite knowledge of the defect or hazard prior to your incident and failed act and take appropriate precautions in response to the defect or hazard.
If your incident or injury occurred at your friend’s house, for example, and your friend rents the premises, you may, also, want to make enquires with your friend as to whether he or she made any relevant prior complaints to the landlord or the real estate property manager, and, if they have, request a copy of these complaints [i.e., emails or letters or text messages].
- make your own record of the circumstances of your incident as well as of all your symptoms
It is important that you record the events of your incident as soon as possible after your incident [i.e., what happened]. It is, also, important that you keep an up-to-date list of all your symptoms, whether on paper, computer, or your smartphone.
Treatment providers do not often record all your symptoms and complaints and often concentrate on what is serious at the time of the consultation. The passage of time can make what seemed like a minor injury in the initial post incident period a long-term debilitating condition. If there is no record of such injury or associated symptoms in your treating clinical notes, it will be difficult to attribute this injury to the incident. In the alternative, you can record video footage of you discussing your symptoms.
- go to your general practitioner or hospital or other treatment providers
You may have already been to see your general practitioner or received hospital treatment, however, you need to listen to your body and attend on your general practitioner or hospital or psychologist or other treatment providers as many times as you think fit. This is important, as if, for example, you only sought medical treatment once, the defendant or insurer to your claim will argue that you do not suffer from any ongoing problems or disabilities, because if you did you would have sought frequent medical treatment.
When will a homeowner and/or occupier of a residential premises be liable for my injury?
An occupier is the person in possession of the residential premises who occupies the premises and has the power to admit or exclude people onto and off the residential premises. There can be more than one occupier [i.e., a family living in the family home would be all occupiers of that home].
Often, an occupier of a residential premises is also the owner of the residential premises. However, owning the premises is not the same thing as being in possession of that premises or occupying that premises.
If, however, it is established that had the residential occupier exercised reasonable skill and care and taken precautions that would have avoided your incident and injury, the residential occupier will, in most instances, be found negligent and liable for your injuries and consequent loss.
– Example
A landlord is the owner of a residential premises, but it is the tenant who has possession of that premises and is, therefore, an occupier of that premises. The tenant, however, may also be responsible for any injuries suffered by person who come onto the premise [i.e., visitors]. The landlord, however, will have the primary responsibility to ensure the premises are safe.
An occupier owes a duty to take reasonable care and precaution to avoid foreseeable risks of injury to entrants [i.e., visitors] onto the property her or she occupies. The question of whether a residential occupier is liable or has breached the duty it owes depends on whether an ordinary person in the position of the residential occupier:
- would or should have known that there was any risk of injury to visitors to the residential property [i.e., a risk of injury to you].
- whether that person, in the position of the residential occupier would or should have known of steps or precautions that could be taken in response to that risk [i.e., what could be done to avoid or minimise the risk], and
- the reasonableness of taking such steps or precautions to avoid the risk of injury.
There is no universal rule as to what amounts to breach of residential duty of care and each compensation claim depends on its own particular facts and circumstances. These include the nature of the residential premises, the type of risk or hazard that was present, and, in some instances reason for the entry onto a residential property.
– Example
Slippery front steps without a handrail at an entry to the residential property are likely to create a hazard and a risk of injury to most people, but not to the tradesperson or handyman who had been requested to attend the residential property and repair the steps and install a handrail.
If, however, it is established that had the residential occupier exercised reasonable skill and care and had taken precautions that would have avoided you incident and injury, the residential occupier will, in most instances, be found negligent and liable for your injuries and consequent loss.
When will a landlord and/or real estate property manager be held to be negligent?
A landlord has a general statutory obligation to provide and maintain premises in a reasonable state of repair having regard to the age of, rent payable for and prospective life of the premises.
In addition to its statutory obligations, just like the occupier of a residential premises, the landlord will also owe duty to exercise reasonable care and take any precautions in order to avoid foreseeable risks of injury to occupiers of the premises that they lease from the landlord as well as any entrants [i.e., visitors] onto the premises.
Often, landlords attempt to delegate some or all their responsibility and their duty of care to a real estate managing agent, by entering into a contract with them to manage the property they are leasing to the tenants. Depending on the terms of this delegation or contract, may “pass on” their responsibilities and any liability in negligence to the real estate property manager in which case the real estate property manager may become liable for the incident and any injury and associated losses rather than the landlord of the residential premises.
If it is established that the landlord and the real estate property manager failed to exercise reasonable skill and care and not taken precautions that would have avoided your injury, the landlord and the real estate property manager will be found negligent and be liable for your injuries and consequent loss. If, however, it is established by the landlord that he or she had successfully “delegated” his or her responsibility to the real estate managing agent than the real estate managing agent will be found liable for your injury and consequent loss and the landlord will not be held liable. This means you will recover the same amount of compensation only from the real estate property manager. The amount of compensation that you recover is not affected by the number of defendants you have to your claim [i.e., whether it is 1 defendant or 20, you will still be entitled to the same amount].
Examples of compensable incidents on residential premises or rental accommodation
Examples of preventable causes of incidents sustained on residential premises or rental accommodation include:
- improperly positioned or missing floor mats at entrances and exits to the residential or rented premises.
- slippery floors from leaks and spills, such leaking roofs or gutters etc.
- stairway or walkway obstructions that are tripping hazards.
- cracked and uneven floor surfaces or pavements.
- defective or improperly constructed premises, which can include steps or stairwells not containing handrails or stair nosings etc.
- inherently slippery floor surfaces due to wear and tear and lack of maintenance or installation of an inappropriate floor surface in the first place.
- deterioration of parts of the residential or rental premises due to lack of maintenance, such as balcony or balustrade collapses etc.
- improperly constructed premises.
- unidentified or not highlighted tripping or slipping hazards, such as height differentials.
- inadequate illumination [i.e., lighting].
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