Attwood Marshall Lawyers Compensation Law Senior Associate Tina Davis explains what a public liability claim for personal injuries involves, including the basic elements of a ‘slip and trip’ case and who is responsible. Tina also highlights a couple of recent court decisions to show how individuals can be granted – or refused – compensation.
Introduction
From taking a tumble at the local sporting club stairs to slipping on spills at the Supermarket, unexpected accidents and the injuries they can cause can completely turn your world upside down. What may seem like a simple slip or trip can have catastrophic long-term consequences. In fact, it has been said that one in five falls will cause a serious injury, such as head and brain injuries, cuts and abrasions, broken bones, and spinal cord injuries.
These so called ‘slips and trips’ probably don’t adequately describe the seriousness of these accidents and the injuries suffered, nor does that description cover all the possible ‘public lability’ accidents that can happen. There are so many different types of accidents, ranging from pedestrians getting hit by falling debris or a collapsed roof from a nearby building to spinal injuries suffered from diving into a shallow pool or water hole. We have all heard horror stories of balconies collapsing at parties, people falling down lift wells, and more recently the terrible tragedy of the jumping castle being hurled into the air by wind gusts which resulted in fatalities and serious injuries to primary school children in Devonport Tasmania (not to mention the nervous shock claims of their families and friends).
The biggest issue with public liability claims is to determine who is at fault and whether the person/company/government department or ‘occupier’ of the property or location of the accident have been negligent. The issue as to whether the occupier has been negligent can be quite complicated and the law relating to these claims has changed over the past 20 years, with federal, state and territory governments introducing legislation to water down people’s right to claim. For example, the Civil Liability Act QLD regulates the common law in many respects, ranging from ‘obvious risks’ to the liability of public authorities. Similar legislation exists in most states and territories in Australia. Suffice it to say that the law relating to liability for these claims has become so complicate that you should obtain legal advice from a compensation specialist law firm as to whether you have a claim. You also need to make sure whoever you are suing has the assets to pay the claim or insurance to cover it.
No two public liability accidents are the same, and therefore each case is based on its own facts. It really depends on the circumstances of each ‘accident’ to determine if the injured person may be eligible to claim compensation for their injuries to help them on their road to recovery.
If you have been injured due to the negligence of another (identifiable) person or organisation and you are within the required time frame to submit a claim for injuries sustained because of the accident, then you may have a good chance of successfully making a public liability claim for damages for personal injuries.
Here we offer two case samples highlighting in what circumstances a claim may be successful or unsuccessful.
Where the claimant won their case – a slip and fall on stairway case
Pietrobelli v Jewell Family Nominees Pty Ltd [2022] NSWSC 660
In this NSW case, the Plaintiff was descending a stairway at a children’s play centre when her foot slipped off a carpeted stair tread, causing her to fall down the narrow stairway and sustain injuries.
The Plaintiff was not able to give a precise account of the circumstances of her fall. Instead, she said that the most probable reason for falling was that the stairs did not comply with the Building Code of Australia. She proposed that the “goings” (i.e. the distance between each step) were less than the required dimension of 250mm and inconsistent with the “rise” (i.e. height) of the step, resulting in a “tread” (i.e. surface) that was too small to place her foot. This resulted in an overstep on the stair and her foot slipping off the carpeted nosing. Further, she argued that the risk of falling was exacerbated by poor lighting.
The defendant argued that the plaintiff had not exercised due care for herself and that no less than 50 per cent of the damages claimed ought to be applied for contributory negligence.
After reviewing the evidence, the judge concluded that the risk of falling on the stairs was significant and the defendant ought to have rebuilt the stairs or restricted access. There was no deduction for contributory negligence.
Where the claimant lost their case – slip case in a supermarket
Buljat v Coles Supermarkets Pty Ltd [2022] ACTSC 47
The Plaintiff was walking through the meat section of the store, looking at food on display when her right leg slipped – causing her to land on her shin. She noticed a trail in front of her leading to a squashed grape. An employee also concluded that the plaintiff had slipped on the grape.
The supermarket owed a duty “to take reasonable care” so the plaintiff did not suffer an injury because of the state of its store. Further, it knew there was a significant risk that customers could fall on grapes within the store.
However, the issue was whether the store had breached its duty of care to the plaintiff by failing to take reasonable precautions against the risk of harm posed.
It was found that while the store did not have a formal system of cleaning during its opening hours, its staff were instructed to always keep a look out for spillages and hazards – and to be particularly vigilant about grapes that can easily fall onto the floor.
The plaintiff could not establish that the staff had failed to comply with their training. The judge cited a lack of evidence as to what the employees would have or should have seen, and also noted the absence of any photographs or diagrams of the incident site.
Further, the judge sided with a store employee on the difficulty of identifying a green grape on the floor as opposed to a black grape.
Her Honour found the plaintiff had failed to establish that the defendant had breached its duty of care. The Plaintiff was ordered to pay the defendant’s legal costs.
Understanding public liability claims
It is important to be able to understand what types of accidents may qualify an injured person to make a public liability claim. These include:
- Slips, trips and falls in supermarkets, shopping centres and offices (including stairs),
- Trips on uneven pathways or streets,
- Accidents that occur at school or universities or excursions;
- Recreational or sporting accidents, including diving injuries,
- Injuries caused while at a sports or musical event,
- Boating accidents,
- Buildings, machinery, or patios collapsing, including debris from building sites;
- Injuries suffered from falls into lift-wells, mine shafts, or other dangerous sites;
- Injuries at someone’s home due to dangerous hazards (your home and contents insurance usually covers this)
How to commence a public liability claim
In Queensland, a claimant will need to serve a Form 1 Part 1 Notice of Claim Form on the person or entity who they believe is responsible for their injury (called a respondent) within one month of instructing a lawyer to act or within nine months of the date of the incident – whichever is earlier. If you consult a lawyer, they will make sure the claim form is prepared and served within the time limit for you. You can serve a claim form outside of these time limits as long as you provide a satisfactory explanation for the delay, but not longer than three years from the accident date.
If a Form 1 Part 1 Notice of Claim Form is served any time after nine months from the date of the injury, an explanation of the delay will also have to be provided.
Other states and territories have different schemes. For example, in NSW, there is no requirement to serve a claim form, but you have a general three-year limitation to file court proceedings and there is a medical impairment percentage threshold for damages for pain and suffering.
It is best to gather as much information as possible about the accident, including photographs or videos of the scene as well as medical statements and clinical notes on the nature and extent of injuries sustained. Keep contact details of any witnesses to the incident and make sure you report the accident to the occupier as soon as it happens. You should keep the clothes and shoes you are wearing in the condition they are in. You should contact an experienced personal injury lawyer as soon as possible. An assessment on how the injuries have had an impact on the claimant’s ability to earn an income is also recommended.
Important time limits
The Limitation of Actions Act 1974 (Qld) (Limitation Act) imposes strict time limits for launching court proceedings in Queensland. Damages claims for personal injuries must be commenced within three years of the date of injury or they become statute barred, preventing a claim of compensation. New South Wales and all other state and territories in Australia have similar limitation periods for claims, although people under 18 can sometimes have longer to bring a claim
Compensation for injuries
An injured person may be entitled to claim the following compensation:
- General damages (pain and suffering)
- Past loss of income
- Future loss of income
- Past out-of-pocket expenses for medical, rehab, aids and equipment
- Future out of pocket expenses for medical rehab, aids, and equipment
- Past and future gratuitous and paid care and services
No two claims are the same. The compensation that one person might recover will be different from someone who has the same injuries and a very different lifestyle, age, medical history, and occupation.
How long would a public liability claim usually take?
A public liability claim can take on average between 12 months and three years. Factors affecting how long a public liability claim takes to resolve include:
- How long it takes for the injuries to stabilise,
- The attitude of the opponent insurer to the claim,
- The number of parties to the claim,
- Time necessarily taken to investigate the circumstances of the incident,
- The timing of the medical examinations,
- Whether any other parties (defendants) are joined to the claim.
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, it is important to obtain trusted legal advice from an experienced compensation lawyer. Strict time limits apply when making a public liability claim, so it is important to obtain advice as soon as possible so that you do not lose your right to entitlements.
At Attwood Marshall Lawyers, our experienced compensation lawyers can help you understand what steps you need to take to be able to submit your claim and prove that the person or company who was responsible for your injury was negligent.
To discuss your specific matter, please contact our Compensation Law Department on 1800 621 071 for a free claim review.
Our team are available for appointments at any of our conveniently located offices at Coolangatta, Robina Town Centre, Southport, Kingscliff, Brisbane, Sydney, and Melbourne.
