In Victoria, if you have suffered an injury in a public or even private space, then you may be eligible to bring a claim for compensation or damages, pursuant to the Wrongs Act 1958 (Vic) (Wrongs Act)1. Examples of a public liability claim include if you have been injured in a supermarket or shopping centre, at school, in a restaurant or on the street.
What is a Public Liability Claim?
A Public Liability claim is a type of compensation claim, whereby if you have sustained injury/s that are the result of a wrongdoer's negligence, you can seek monetary compensation as a result. The wrongdoer might include a government, council, business, or local business.
Amongst other things, the Wrongs Act allows you to bring a compensation claim for the following types of damages:
- Pain and suffering also known as general damages (loss of amenities and enjoyment of life);
- Past and future treatment expenses including medical bills;
- Economic loss (both past and future); and
- Gratuitous care expenses.
At present, the maximum amount which you can receive for pain and suffering/general damages is $577,050 2.
The maxim amount which you can receive for economic loss is, for each week of the period of loss of earnings, an amount that is 3 times the amount of average weekly earnings at the date of the award 3.
Pursuant to the Limitations of Actions Act 1958 (Vic)4, it is important to understand that you ordinarily have three years from the date of the incident/injury to bring your claim – there are exceptions to this.
Thresholds to Bring Your Claim
In order to successfully bring a Public Liability claim, you must satisfy two thresholds:
- Significant injury threshold; and
- Negligence and causation threshold.
Significant Injury
In order to be successful in your Public Liability claim, you need to have sustained what the Wrongs Act defines as a "significant injury". The Wrongs Act defines a "significant injury" as the injury/s sustained resulting in a 'Whole Person Impairment' (WPI) assessment – pursuant to the American Medical Association Guides to the Evaluation of Permanent Impairment (4th Edition) – as follows:
- Greater than 5% WPI for physical injury (other than psychiatric or spinal injuries);
- 10% or more WPI for psychiatric injuries; and
- 5% or more WPI for spinal injuries.
To obtain this assessment, you must be assessed by an 'approved medical practitioner' (medico-legal assessor) and be granted a certificate showing that your injuries satisfy these WPI thresholds.
Negligence & Causation
The other hurdle to overcome is to show that the wrongdoer also known as the respondent/defendant (for example, the owner of the land upon which your injury occurred) was negligent and that this negligence materially contributed to your injury/s.
Proving negligence requires the following:
- The person/business (Defendant) owes you a duty of care; and
- The Defendant failed to take the precautions to prevent harm that a reasonable person would and ought to have 5.
For the Defendant to owe you a duty of care, there are certain elements that need to be present, including that the risk of harm to you was foreseeable (meaning they ought to have known about it), this risk cannot be insignificant, and finally, in the circumstances, a reasonable person (i.e., a normal person in the position of the Defendant) would have taken precautions against the risk of harm.
The best way to describe this is through use of an example – Person A (Plaintiff) walks into the Defendant's supermarket. Before the Plaintiff entered, a bottle of olive oil was dropped on the floor creating a slipping hazard. In this situation, the Defendant owes the Plaintiff a duty of care to protect them from reasonable foreseeable risks, the risk of someone slipping on spilt oil is likely, and a reasonable Defendant would recognise this and take precautions.
Therefore, whether the Defendant has breached their duty of care to the Plaintiff in these circumstances would come down to the circumstances of the oil making its way to the floor, how much time has elapsed between the olive oil dropping on the floor and the Plaintiff slipping on the oil.
The Defendant's negligence also needs to have caused your injury. This is known as causation. Section 51 of the Wrongs Act sets out that the Defendant's negligence needs to be a necessary condition of the occurrence of the harm (factual causation) and that it is appropriate for the Defendant's scope of liability to extend to the harm (legal causation). Essentially, factual causation is satisfied where you can show that 'but for' the Defendant's negligence,6 you would not have been injured. Legal causation requires the Court to consider whether the Defendant should be deemed negligent in all of the circumstances.
Conclusion
If, after reading this, you consider that you, a family member or friend have a potential Victorian Public Liability claim or wish to learn more about what legal options might be available, please get in contact with Carroll & O'Dea lawyers. We have an excellent team of personal injury and Public Liability specialists to assist with your claim and will act on a 'no win no fee' basis.
Footnotes
1 https://www.legislation.vic.gov.au/in-force/acts/wrongs-act-1958/127.
2 Wrongs Act, s28G.
3Wrongs Act, s28F.
4 https://www.legislation.vic.gov.au/in-force/acts/limitation-actions-act-1958/107.
5 Wrongs Act, s48.
6 Strong v Woolworths (2012) 226 CLR
182.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.