NSW Occupiers and Public Liability Claims
If you are injured on someone else’s property or in a public place and there is negligence on the part of the occupier or owner of the property then you may have an action in negligence, provided you can show fault on the part of the occupier.
Some examples of how the law applies in this situation include slips, trips and falls in supermarkets and shopping centres, injuries on leased premises, injuries in car parks adjacent to shopping centres or hotels and clubs, injuries on building sites, injuries involving security guards or other persons providing security services at premises, pedestrian hazards on roads or other public areas, diving cases and injuries on beaches or in rivers.
You may also have a contractual claim in damages if you are injured on premises that you have paid to enter, e.g. stadiums.
The law for these cases is governed by the NSW Civil Liability Act 2002 (NSW). Special protections are afforded in that Act for local governments, and other government bodies. It is normally difficult to show liability on the part of a local government body in trips and footpath claims, you must be able to show that the local government body had actual knowledge of the risk in order to be successful in these types of claims. In addition, the resource allocation of that local government body is not open to challenge.
Frequently claims against an occupier have an overlap with other compensation, for example a work injury claim and a claim on a building site. If there is fault on behalf of the employer and fault on the part of a head contractor on a building site then both parties can be held liable and different laws apply in apportioning the liability between the two defendants.
Damages for occupier’s liability fall under 4 heads of damages:-
- General damages (pain and suffering or non-economic loss);
- Past and future out of pocket expenses;
- Past and future economic loss including loss of superannuation;
- Claims for domestic assistance.
A threshold exists for claims for general damages under the NSW Civil Liability Act. The threshold is 15% of a most extreme case (not under the AMA 4 or AMA 5 Guidelines). A sliding scale of damages then applies from 15% to 33% and then the full amount of damages is payable for 33% of a most extreme case and upwards.
The total damages payable for pain and suffering under the NSW Civil Liability Act is indexed annually. Presently the maximum amount payable for damages for pain and suffering is almost $600,000.00.
Damages are also payable for past and future out of pocket expenses which is essentially medical expenses encompassing GP’s and specialist’s visits, x-rays, scans, operation expenses, physiotherapy, medication etc. plus claims for travel expenses to and from the doctors and various health service providers.
A claim for economic loss is for the time off work that you have suffered together with a claim for damages for any time off work that you will have in the future or in the circumstances where your working life will be shortened as a result of the injuries. Net wages loss is claimed together with a claim for any superannuation benefits lost.
If care is provided for you by a friend or family member and that care is provided for more than 6 hours a week for more than 6 months then you will be able to make a domestic assistance claim. The amount paid for the domestic assistance is around $29.00 per hour based on a formula which is set out under the Civil Liability Act.
Unlike other areas of law in New South Wales, there is no requirement for a pre-court mediation procedure before commencing proceedings. An action must be commenced in the Local, District or Supreme Court within 3 years from the date of the accident or else the claim becomes statute barred and the claim cannot be prosecuted.
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