Injuries that occur in public places often lead to contentious battles over negligence or who is at fault, with owners or ‘occupiers’ attempting to shift the blame onto the injured person. Here, Attwood Marshall Lawyers Compensation Law Senior Associate Tina Davis and Senior Paralegal Sue Davidson explore some recent court decisions involving public liability claims where contributory negligence was argued.
When an injury occurs in a public place, owners or occupiers frequently attempt to deflect responsibility onto the injured person sometimes unfairly. However, it’s important that injured people do not bow to tactics of intimidation.
The legal system is designed to filter out frivolous public liability claims, so if you have a legitimate case, rest assured that we’re here to ensure you receive the compensation you are entitled to.
Public liability claims involve persons injured in a public or private place due to the negligence of another party who failed to ensure their premises or public area was safe. These types of claims include various slips, trips and falls, whether in a shopping centre or a rental property or even at school. The underlying issue of negligence or who is at fault in a public liability claim can be a complex issue to determine by a Court and the law has developed in recent decisions of the Courts.
So, how do you determine if your situation warrants a public liability claim?
- You must have suffered an injury due to another party’s negligence.
- The negligent party must be identifiable.
- Your claim must be lodged within the legal timeframe.
Several legal thresholds must also be met, including:
- That a person or organisation owed you a legal duty of care;
- You sustained an injury that was foreseeable by the person at fault;
- The negligence of that person or organisation caused your injury; and
- You suffered a loss. For example, you were not able to work for a period and, as a result, lost income.
What is contributory negligence in a personal injury claim?
In a contributory negligence scenario, a person or organisation held responsible may allege that an injured person contributed in some way to their own injury. If the other party can prove this, then any amount of compensation awarded is reduced according to the percentage that the injured person is found to have contributed to their own injury.
So, if for example contributory negligence is found to be 20%, that means 20% of the incident, and the injured person’s resulting injuries, is the fault of the injured person, while the 80% remains the responsibility of the person or organisation that was originally held to be at fault.
The worst-case scenario is that an injured person is found to be 100% contributory negligent. In this scenario, it would mean the individual is deemed to be completely at fault for their own injuries and the other person or organisation originally held to be at fault will be excluded from any liability.
Contributory negligence considerations:
- What were the circumstances of the incident?
- What is the extent and nature of the injury suffered?
- Was there a failure by the injured person to take reasonable care for his or her own safety, which contributed to the injuries they suffered?
How do you prove contributory negligence?
The onus is on the person or organisation held responsible to prove that the injured person contributed to the injury sustained —whether by doing or failing to do something.
The person or organisation held responsible must present a clear and credible argument for contributory negligence, supported by evidence and witnesses.
Case study 1– Plaintiff loses – Devic v AMP Capital Investors Limited [2022] NSWDC 371
On 7 December 2019, the plaintiff Ms Devic and her three children visited the defendant’s Casula Mall Shopping Centre in Sydney. While leaving the mall, they encountered a walkway that led to a crossing, which had a raised section level with the walkway, giving way to the road on each side. Ms Devic claimed that she tripped and fell due to an unexpected variation in the height of the crossing, causing her to suffer injuries. She filed a claim of negligence against the defendant.
AMP Capital had painted the kerb and pedestrian crossing yellow before Ms Devic’s incident as a visual cue. However, Ms Devic alleged that the step from the edge of the crossing should have been painted a different colour or that barricades or bollards should have been placed at the end to make it visually distinct to a person walking from the mall entrance towards the car park.
AMP Capital argued that the ramp’s highlighting provided an adequate visual cue, and that bollards or fencing were unnecessary.
The judge found:
- The risk was foreseeable;
- Adequate precautions were taken in the form of effective highlighting of the site, which provided an appropriate visual cue;
- The risk was not insignificant, but there were no known prior incidents;
- A reasonable person in the defendant’s position would not have undertaken different coloured highlighting or erected bollards or fencing;
- Any risk assessment would not have identified a “not insignificant risk”;
- The probability of the harm occurring was low;
- There was not a real likelihood of the plaintiff sustaining serious bodily injury, and
- The financial burden of taking precautions to avoid the risk of harm was low, but the precautions were not necessary or reasonable.
The Judge ruled that the defendant’s yellow painting of the strip of pavement adjacent to the walkway ought to have alerted Ms Devic to the height variation. On that basis, the Judge rejected her claim.
The Judge also held the risk would have been apparent to a person when approaching the walkway and was therefore classified as an “obvious risk”, to which the defendant did not have a duty to warn. The Judge held that, even if AMP Capital was found negligent, Ms Devic’s award would have been subjected to a deduction of 50% for contributory negligence.
Case Study 2 – Plaintiff wins – McIntosh v Canberra Choral Society [2022] ACTMC 16
Lady Margaret McIntosh, newly elected president of the Canberra Choral Society, sustained an injury during a choir rehearsal at St. Christopher’s Cathedral on March 23, 2018. She had fallen while negotiating a gutter gap between rented “rises” and the elevated altar floor, forming a temporary stage.
Lady McIntosh argued that the small, volunteer-run non-profit organization should have protected her from foreseeable risks.
The defendant meanwhile alleged contributory negligence, claiming that Lady McIntosh had failed to keep a proper lookout, take reasonable care for her safety, heed advice to move carefully, or respond to warnings issued.
However, the court sided with Lady McIntosh, finding that:
- The gutter gaps presented a significant risk,
- There were no handrails, barriers, or human guides to assist the choristers,
- No physical or verbal warnings were provided about the hazard,
- Some choristers were older and less steady,
- Alternative entry and exit methods were feasible,
- The defendant chose a hazardous route without rectification, and
- Expert evidence was deemed unnecessary due to the obviousness of the hazard.
The court dismissed the defendant’s claim of contributory negligence, noting the absence of suitable reminders about the hazard and the extraordinary risk it presented. The defendant failed to prove more than inadvertence or misjudgement on Lady McIntosh’s part in the face of such a dangerous hazard. Alternatively, a small reduction of 10 per cent might have been considered if contributory negligence were proven.
Critical aspects of contributory negligence in Queensland
Apportionment of Liability
The court will assess each party’s degree of negligence. If the plaintiff has partially contributed to the incident, the court will reduce the compensation available in proportion to their level of fault.
Reasonable Person Standard
The Court considers whether a reasonable person in the same circumstances would have taken precautions to avoid the injury. If the plaintiff fell short of this standard of care and it contributed to the harm experienced, the court may establish a case of contributory negligence.
Mitigation of Damages
A plaintiff must minimise losses after an incident, including seeking medical attention promptly and following prescribed treatment. It could affect their compensation if the court finds they have unreasonably delayed treatment.
Statutory Limits
The Civil Liability Act 2003 limits how much compensation a plaintiff can receive if they are partly at fault. These caps aim to balance fairness for injured parties with discouraging exaggerated or frivolous claims.
Tips for mitigating contributory negligence
The best way to avoid contributory negligence is to use common sense, follow the rules as best you can, and avoid unsafe behaviour. For example, if you require glasses to drive, then wear glasses when you drive. If you are outside and walking in the rain, ensure you have the proper footwear.
However, accidents can happen, and if you do hurt yourself, one of the first things you should do after obtaining medical attention and the treatment you need is to seek legal advice about your unique circumstances from an experienced compensation lawyer.
Also, be diligent in documenting the event and collecting evidence about your injuries and how they were sustained. Although you may not think you need this at the time of the accident, your injuries may become more severe than you first expected. Documentation will be critical to your claim should you seek compensation for your injuries.
Attwood Marshall Lawyers – helping people receive the treatment they need to recover from a public liability accident
If you have been injured in a public liability accident and want to understand your rights, obtaining trusted legal advice from an experienced compensation lawyer is essential. Strict time limits apply when making a public liability claim, so it is vital to obtain advice as soon as possible so as not to lose your right to entitlements.
Attwood Marshall Lawyers has a dedicated team of experienced compensation lawyers who practice exclusively in this field. We know how to handle insurance companies so that you can focus on your recovery and well-being.
To discuss your specific matter, please get in touch with our Compensation Law Department Manager Tyra Hall on direct line 07 5506 8261, email thall@attwoodmarshall.com.au or call 1800 621 071 for a free claim review.
Our team is available for appointments at any of our conveniently located offices at Coolangatta, Robina Town Centre, Southport, Kingscliff, Brisbane, Sydney, and Melbourne.
