Category

Public Liability

How Long do Public Liability Claims Take to Resolve in NSW?

Let’s face it, we live in an age of instant gratification. Thanks to the Internet, we’ve grown accustomed to having immediate access to just about everything we could possibly want or need. So if you’ve been injured in a slip and fall accident, or similar circumstances in which someone else is to blame, chances are that you want the matter resolved quickly and to your complete satisfaction.

If you’re not careful, however, this impatience may jeopardize your chances of getting the compensation you deserve. That’s why it’s important to work with an experienced personal injury lawyer who can not only manage your expectations, but also fight for optimal results.

During your first meeting, a qualified lawyer will gather certain information and interview you about what happened to determine whether you have a viable public liability claim. You can usually make this type of claim if you’ve been badly hurt on public or private property, but only in certain circumstances.

For example, you may have a viable claim if someone assaulted and hurt you in a car park with inadequate lighting and security. You may also have a viable claim if you were hurt when you slipped and fell on a wet floor at the movie theatre, or even if a dog bit you at the park.

This is because New South Wales law mandates that business owners and other organisations do everything possible to make sure that people are not in danger while on the premises.  In other words, they must make sure their properties are well maintained, that their employees have adequate training and that other measures are in place to ensure public safety. Any failure to fulfill these obligations which results in personal injury is legally classified as negligence.

Although it sounds like a cliché, one of the first things your lawyer will probably tell you is that every personal injury case is different. It’s therefore impossible to say exactly how long it will take to resolve your public liability claim in NSW. Some of the factors taken into consideration include:

  • The extent of your injury or injuries;
  • the extent of your treatment;
  • how long it takes to assess your long-term needs and what they are;
  • how long it takes the responsible party’s insurance provider to make a settlement offer (if at all).

If the insurer doesn’t make a reasonable settlement offer, or refuses to make any offer whatsoever, your only recourse will be to take the matter to court. If you and your lawyer agree to pursue this option, the court’s schedule will dictate how quickly (or slowly) the case goes forward. In general it can take 12 to 18 months until the case is actually heard.

Even if the case goes to court, there’s no guarantee you’ll win. In one documented case, for example, the court awarded $90,000 in compensation to a woman who brought a public liability claim against the Coles supermarket where she was injured when she slipped on a grape. In this particular case, the woman argued that the supermarket was negligent because it hadn’t removed a hazard (the grape) or done anything to make customers aware of it, and had been negligent for not clearing the floor of grapes and not warning customers of the slip danger. In response, the supermarket employed a legal defence called ‘obvious risk’.  Specifically, it argued that the presence of grapes on the floor constituted an ‘obvious risk’, and consequently it wasn’t legally obligated to warn customers. The court disagreed, ruling that the supermarket breached its duty of care, and awarded damages accordingly.

In another case, a woman brought a public liability claim against the owners of a shopping mall after she was hurt when she tripped over a kerb in an underground car park. The plaintiff here claimed that she couldn’t see the kerb due to fading paint and inadequate lighting. Unconvinced, the court sided with the defendants and ruled that kerbing was an ‘obvious risk’ for a trip injury. The Court also ruled that the woman’s distraction caused her fall, that there was sufficient lighting, and that the failure to refresh the paint on the kerb did not constitute an act of negligence.

Clearly there’s a lot to consider when you are deciding whether to make a public liability claim. At BPC lawyers, we have the knowledge and experience necessary to help you through every step of the process. Based on evaluation of your unique circumstances, we will determine whether you have a viable claim. If so, we will then work to ensure you receive the compensation you deserve through a settlement or court hearing. Contact us to learn more about how we can help you today.

call us for public liability claims

How to Make a Public Liability Claim in NSW?

What is a Public Liability Claim

A public liability claim refers to a claim made for injuries sustained in public places in accidents caused by the negligence (failure to exercise reasonable care and skill) of a person or organisation.

For instance, let’s say you’re walking through a shopping centre and you slip and fall as a result of a spilt liquid on the floor causing an injury to you. The owner of the shopping centre possibly could have prevented the unfortunate incident by ensuring that their cleaning staff better maintained the centre’s floor.

Compensatory damages are available under the Civil Liability Act NSW 2002 as follows:

  • Past and future medical expenses;
  • Pain and suffering (past and future);
  • Past and future loss of earnings, including loss of superannuation contributions;
  • Cost of other assistance (domestic assistance, personal care provided by friends, family or professional organisations for the past and future).

Public liability claims derive from numerous accident types. Here are some examples:

  • Assault-related injuries;
  • Animal attacks (most commonly dog bites);
  • Injuries due to defective machinery;
  • A slip and fall in public spaces and facilities;
  • Food poisoning;
  • Sporting, recreational  injuries;
  • Physical assaults;
  • Sexual assaults;
  • Schools and playground injuries;
  • Aviation (planes, helicopters) injuries;
  • Maritime (boats, ships) injuries;
  • Hotels and other venues injuries;
  • Injury at a construction site;
  • School yard injuries;
  • Amusement venue injuries;  and
  • Injuries in rental premises (e.g. landlord/tenant).

Public liability insurance

In most cases, business (private or public) have public liability insurance for these types of incidents,  which essentially means that in making a claim against the business, you’re in fact making a claim against their insurer. Some people can wrongly assume they are pursuing legal action against the business and for that reason, do not follow through with a public liability claim, despite incurring significant inconvenience and financial hardship.

Notwithstanding this, it is not uncommon for people who have an accident in a public place to initially suffer from only a little pain and discomfort, choosing not to pursue a claim, only to later find that the injuries sustained were serious, requiring surgery. For this reason, it is often wise to seek medical attention regardless of the injuries sustained.

Proving a Public Liability Claim

In a public liability claim, the evidence of the incident is vitally important, because your lawyer will need to be able to demonstrate that:

  • The person or company at fault owed you a duty of care.
  • The person or company breached that duty of care.
  • As a consequence, you were injured and suffered loss.

Practically speaking, following an injury in a public place if you’re able, the following should be attended to.

  • The first thing you should do, when injured in a public place is to let the owner/manager of the business know.
  • Ensure pictures are taken of everything, the injury itself, the establishment, the object causing the injury.
  • Witnesses are very important, take notes of their names and phone numbers
  • Access any surveillance camera footage
  • Make a video recalling what happened right away
  • Seek medical assistance as soon as possible.
  • Seek advice from a specialised lawyer in personal injury claims.
  • Save all medical evidence, bills, receipts, doctor’s records and anything else proving you sustained an injury.
  • Financial documents are also important to prove a loss of income resulting from the accident.

Getting Help

Public liability claims can be difficult to prove, hence the need to ensure you collect as much evidence as possible as promptly as possible and seek legal advice.

These matters have very strict time limits that apply.

What Goes On At BPC

What Goes On At BPC

I thought it might be a good time to acquaint some of our readers with the type of work that we are doing here at BPC.

When people talk about compensation Lawyers they think injuries at work and on the road. We are certainly a major law firm in compensation claims of those types.

We do however act in a wide variety of matters and I thought it might be useful to give readers a note of some of the cases we are currently involved in:-

  • We are acting for a lady who suffered severe injuries when she fell on a boat whilst whale watching in the Great Barrier Reef.
  • We are acting for the family of a baby suffering from Cerebral Palsy which we argue was caused due to asphyxia during the birth process which could have been prevented had the doctors paid greater attention.
  • We are acting for a young man who unfortunately lost one of his limbs after an explosion of a keg on licensed premises.
  • We are acting for a client who suffered injury when she was directed by her personal trainer to undergo a type of fitness training that was beyond her capacity resulting in her suffering a very significant hip injury.
  • We are acting for a lady who suffered a leg injury when she slipped and fell on Council premises which had become very slippery as a result of patrons bringing wet umbrellas and shoes through the entrance. The Council employees did not provide any warning signs or matting to provide a safe floor surface.
  • We are acting for an English gentleman who was riding on a donut behind a speed boat off an island in Queensland when he was thrown outside of the wake and became entangled in the donut causing him injury.
  • We are acting for a young lady who was playing in an indoor netball competition. The court had previously been used a gymnastics organisation who had left chalk on the floor causing her to slip and suffer an injury to her knee which required surgery.
  • We are acting for a well known performer who suffered a bowel perforation following a simple hospital procedure. It was not recognised in time leading to her getting sepsis which has had serious consequences to her overall health.

These examples are given to illustrate that there are wide ranging circumstances in which a client may have an entitlement to compensation. We are experienced in all areas of public liability and medical negligence and would be happy to deal with any enquiry on the usual “no win, no fee” basis.

Courtenay Poulden

24 March 2017

Man Falls Down Stairs at Ice Skating Rink

A Gentleman Falls Down Flight of Stairs at Ice-Skating Rink Suffering Serious Injuries

Catholic Club Ltd [2013] NSWDC 93

Falls Down Flight of Stairs at Ice-Skating Rink

Facts
At about 3.45pm on Wednesday 14 January 2009, the plaintiff, Christopher Moor, was injured at the premises of the defendant, Liverpool Catholic Club Ltd. He sustained a fracture to his right ankle after losing his footing, slipping and falling whilst descending a set of stairs. At that time, he was wearing ice skating boots. He was descending the stairs in order to access an ice skating rink on the premises.

Injuries
When the plaintiff fell on the stairs, he suffered a very painful fracture with swelling to his right ankle. This was later defined by an x-ray examination to involve an oblique fracture of the distal right fibula with some dorsal displacement of a major distal fragment, with the fracture line extending a few centimetres above the ankle joint, with some ligament disruption, evidenced by the x-ray findings of widening of the ankle joint.

Expert engineer for the plaintiff
The plaintiff relied upon 3 reports from Mr Ian Burn, a consulting civil engineer. His reports were respectively dated 23 April 2012, 13 September 2012 and 12 November 2012. The most recent report of Mr Burn commented upon a report dated 19 September 2012 from the defendant’s expert, Dr John Cooke, a consultant architect.

On 20 April 2012, Mr Burn had inspected and made measurements of the stairs where the plaintiff had fallen. He observed that including the landing, the seven steps comprised a discrepant pattern of measurements of the goings, or treads and the risers.

Mr Burn pointed to a lack of consistency within the measurements of the treads and the risers on the flight of stairs. In his view, this meant that persons using the stairs would have no assurance when placing a foot on each step.

His Honour Justice Levy SC of the District Court of New South Wales was of the view that:

“When a person of the plaintiff’s height was descending the stairs, those discrepancies would not have been obvious when looking down the flight of stairs.”

Expert engineer for the defendant
The defendant relied upon a report dated 19 September 2012 from Dr Cooke. He surveyed the regulatory framework for the premises and concluded that the stairs were compliant with Ordinance 70, and that otherwise, no relevant Australian Standard applied at the time of the accident. However, he made tests which adopted the test procedures specified in AS/NZS 4663:2004 and he proceeded to attempt measurements of the co-efficient of friction between a piece of polished metal plate he assumed simulated the surface of an ice skate blade, and the nosing on the stairs.

Conclusions on utility of the expert evidence
His Honour, having considered the respective reports of the Plaintiff’s experts, concluded that Mr Burn’s analysis of the mechanics of the plaintiff’s fall was more reliable when compared to the opinions of Dr Cooke for the defendant.

Whether an obvious risk was present
The defendant pleaded a defence of obvious risk, pursuant to s 5F, s 5G and s 5L of the CL Act. The questions for decision in connection with that defence is whether the activity of walking down stairs whilst wearing ice skates at an ice rink, involves an obvious risk within the meaning of s 5F(1) of the CL Act, and whether such argued obvious risk in fact materialised and caused injury to the plaintiff.

The question of whether there was an obvious risk present pursuant to s 5G of the CL Act involves an objective determination of whether the plaintiff’s conduct involved a risk of harm that would have been obvious to a person in the position of the plaintiff: Jaber v Rockdale City Council [2008] NSWCA 98, at [27]-[28]; Lalouach v Ibrahim [2011] NSWCA 402, per Giles JA, at [79]. The question of obviousness of the probability of the occurrence of harm in the circumstances is dependent upon what is, or is not, readily apparent to a reasonable person in the position of the plaintiff: Jaber v Rockdale City Council, at [35], per Giles JA.

His Honour stated firstly that:

“The defendant had not shown that the activity in which the plaintiff was engaged, namely descending down the stairs wearing skate boots, was a dangerous recreational activity within the meaning of s 5L of the CL Act, namely an activity that carried with it a significant risk of harm”: Lormine Pty Ltd v Xuereb [2006] NSWCA 200, per Mason P, at [31].

Secondly his Honour stated that, the description of the plaintiff’s descent down the stairs and the CCTV footage showing the course of his descent did not demonstrate any unreasonable conduct on the plaintiff’s behalf. His Honour concluded that-

“On the evidence adduced in this case, the defendant has not established the allegation that the plaintiff had descended the stairs in a manner that was oblivious to the risk of him falling.”

Thirdly, his Honour was of the view that, the defendant had not established that the plaintiff had either actual or constructive knowledge that descent of the stairs whilst wearing skate boots involved an obvious risk.

Whether there was inherent risk
The defendant also pleaded a defence of inherent risk, pursuant to s 5I and s 5K of the CL Act. There is no liability in negligence if the harm complained of is as a result of the materialisation of an inherent risk: s 5I(1) of the CL Act.

An inherent risk is defined as an occurrence that cannot be avoided with the exercise of reasonable care and skill: s 5I(2) of the CL Act. The exclusionary effect of s 5I does not operate where there is a duty to warn of the existence of a risk: s 5I(3) of the CL Act.

His Honour was of the view that the plaintiff was entitled to a warning that the stairs had incorporated within their structure of the treads, goings and risers, an uneven pattern of lineal and vertical dimensions. Similarly, the plaintiff was also entitled to a warning that the nosing edges of the stairs were slippery when wet in the moist conditions that were evident at the ice rink premises.

His Honour further stated that, the actions involved in descending the stairs wearing skate boots, as distinct from ice skating, did not constitute a dangerous recreational activity within the meaning of s 5K of the CL Act.

Duty of care and scope of that duty
The plaintiff claimed that as the occupier of the ice rink, the defendant owed him, as a customer entrant onto the premises, a general duty of care to take reasonable care to avoid a foreseeable risk of injury: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (198) 162 CLR 479, at pp 487 to 488, [11] to [12].

The duty of an occupier of premises extends not only to a static condition of premises, but also to activities conducted upon the premises: Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 at [26]. Relevant to this case, this must be taken to be a reference to the state of the stairs and the manner in which the stairs were used by the defendant’s patrons.

Causation
His Honour was of the view that, it was appropriate on the facts of the case, to apply the simple “but for” test of factual causation required by s 5D of the CL Act. His Honour consider that it was more probable than not, that the plaintiff’s injury would have been avoided if he had been informed of the need for special precautions to be adopted for descending the stairs due to their dimensions and likely wetness. His Honour was also satisfied that it was unlikely the plaintiff would have sustained the injury he did if the instructed and supervised practice at the ice rink was to ensure patrons refrained from putting on their ice skating boots until after they had descended the stairs in question: Strong v Woolworths [2012] HCA 5, at [18] to [20].

Conclusions on negligence and causation
His Honour concluded that the defendant was negligent as alleged, and that such negligence was the cause of the plaintiff’s injury.

Orders

  1. Verdict and judgment for the plaintiff in the amount of $148,343;
  2. The defendant is to pay the plaintiff’s costs of the proceedings on the ordinary basis unless otherwise ordered;
  3. The exhibits may be returned;
  4. Liberty to apply on 7 days notice if further orders are required.

 

About Beilby Poulden Costello: Beilby Poulden Costello offers legal services such as workers compensation, motor accident compensation and claims for public liability. Beilby Poulden Costello has its origins in a legal practice started by Barry Beilby in 1975.