5 Ways to Prove Negligence in Public Liability
Public liability is an area of compensation law dealing with the harm suffered by a person as a result of an accident in a public place such as a shopping centre or a park that is caused by someone else’s negligence.
Claims relating to public liability in NSW are decided on the basis of the Civil Liability Act 2002 (‘the Act’), although an accident on public transport is excluded under s 3B of the Act. Workers’ compensation, motor vehicle accidents, dust diseases and things such as sexual harassment are not covered by the Act.
Meeting the requirements of this legislation means a claim for compensation must proceed through a number of steps which we’ll outline below. Ultimately, proving negligence is about establishing that someone’s carelessness caused the harm you suffered, rather than any intent to harm, which more appropriately belongs in the criminal law sphere.
Public liability claims can be complicated and you should consult a legal professional with expertise in this area of the law.
So, how to prove negligence?
1. Duty of care
A key first step in showing that someone was liable for your injury is to establish that they owed you a duty of care.
When it comes to shopping centres, bars, parks, office buildings and other public venues, it has already been recognised that operators/owners of such places owe patrons a duty of care, meaning they need to take reasonable steps to keep them safe and secure from harm.
For a supermarket, for example, this means keeping the floor free of water or loose produce which could cause a trip and fall, or a building owner ensuring there are no loose steps or tiles in the common areas of the building.
Additionally, a person claiming compensation must show that it was reasonably foreseeable that an act (or omission) could cause damage or injury to patrons of the venue.
2. Breach of the duty of care
The next step for a claimant is to show that the defendant breached its duty of care, by failing to take reasonable steps to protect the injured person and ensure a safe venue. Establishing a breach will require detailed evidence on the circumstances of the accident, including eyewitness statements, accident reports and photographic evidence, for example.
The injured person will also need to show that the risk of harm was ‘not insignificant’; that the negligent party knew, or ought to have reasonably known, there was a risk of harm; and that a reasonable person in the position of the defendant would have taken precautions against the risk of the harm.
The court will take into account a number of factors in making this assessment, including the likely severity of the harm and what would be required of the venue to take measures to avoid the risk of harm.
3. That the breach was the cause of the harm
A person making a public liability compensation claim must show that the breach by the defendant was the cause of his or her harm and that there was not some other cause or explanation for which they can not be held liable.
Harm can include personal injury (physical and psychological) or death; damage to property; and past and future economic loss.
4. That damages are payable
A successful public liability claim will establish that compensation should be paid to the injured party in the form of damages. This payment may cover medical and rehab expenses, loss of income, the cost of domestic ongoing care, and pain and suffering.
5. Payment caps and time limits
In making a claim, an injured person should be aware that the Act imposes limits on weekly payments for loss of earnings and a 15% threshold of the most extreme case for pain and suffering. There is also a statutory maximum amount that is claimable for non-economic loss, such as pain and suffering.
Claims need to be made within three years of the date of the accident. An extension will only be granted with the court’s permission.
Pursuing compensation in a public liability claim often ends up in a protracted negotiation with a large insurer, as nearly all places where such accidents happen are required to carry insurance.
In this event, the advice and guidance of compensation law firms can be vital to a successful claim. They will help you meet the stages of proof outlined above and keep you apprised at every stage of the status of your claim and the likelihood of a damages pay-out.
