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Read MoreIn New South Wales, public liability claims are governed under the Civil Liability Act 2002.
Public liability is a category of negligence that focuses on injuries sustained in either:
a) publicly-owned locations; or
b) privately-owned places that are open to the general public, such as supermarkets.
The injuries sustained must be as a result of the fault (or negligence) of someone else.
Public liability typically involves demonstrating a relationship between the injured person and the at-fault party, which requires the at-fault party to owe a duty of care to the injured person. To be successful, the injured person must then be able to demonstrate that the at-fault party breached their duty of care and their injuries have resulted directly from that breach of duty.
In order to commence a public liability claim in New South Wales, a plaintiff must establish the following factors:
– The plaintiff sustained an injury in a public / an open-to-the-public space in New South Wales;
– The organisation or person in charge of the space owed a duty of care to the plaintiff;
– The plaintiff can identify the person or organisation at fault;
– The organisation or person was negligent and breached their duty of care owed to the plaintiff;
– The organisation or person’s breach of duty of care caused the plaintiff’s injury; and
– The claim is within statutory deadlines (see further below in this article discussions regarding time limits in New South Wales for public liability claims).
A plaintiff must provide evidence in support of a public liability claim and their injuries. This includes providing details relating to the incident, such as times, dates, addresses, witness information. Photographs and video evidence is often useful in a public liability claim, especially contemporaneous photographs of the injuries suffered, such as cuts and bruises.
The types of categories of evidence that are relevant to a public liability claim are:
– Evidence that the organisation or person in charge of the space failed in their duty of care to prevent harm to the public (such as failing to repair safety equipment or keep a space free from hazards);
– Records and reports regarding the incident (such as incident report forms and letters to and from the defendant);
– Medical documentation regarding the injury suffered by the plaintiff; and
– Evidence of the plaintiff’s financial loss from the injury (such as payslips and income tax returns).
If successful in establishing a breach of duty by the organisation or person in charge of the space (liability), a plaintiff can achieve compensation under a public liability claim for:
– Pain and suffering (typically a diagnosable injury);
– Current and future lost earnings; and
– Medical expenses and ongoing treatment.
There has been a recent change to the time limitation rules in New South Wales. The reformed Limitation Act 1969 now says that a person making a personal injury claim needs to establish the date of discoverability, rather than the strict time period of 3 years from the date of the cause of action.
The date of discoverability depends on the following factors:
1. Occurrence of the injury
There are incidences where a person has suffered a particular injury but is unaware about it. In such cases, the date of discoverability starts from the time the person discovers the injury.
2. Injury caused must be by the fault of the opposite (defendant) party
A person must clearly identify that the injury caused was due to the fault of the alleged defendant party. In instances where a person is not able to identify the defendant party, it is upon the Court to decide on the defendant party and calculate the date of discoverability.
3. Injury was grave
In order to sue the defendant party, the injured person must prove that the injury caused was sufficiently serious.
Once the date of discoverability is determined by the person or by the findings of the Court, proceedings should then commence within 3 years from that date. If the proceeding fails to commence time limit, then the person loses the capacity to make an application before a Court for an extension.
Further to the above, there is a ‘long-stop’ limitation period of 12 years for personal injury claims in New South Wales, meaning that an action for personal injury cannot be brought more than 12 years after the date of the injury.
In addition, there is no limitation period for actions for child abuse.
If you miss the above deadlines, you may still be entitled to file a claim and receive compensation, however, you will likely need to apply to the court for an extension and will need to provide a reasonable excuse for the delay.
Emily Wright and our team are specialist personal injury lawyers who can assist you with your claim on a ‘No Win No Fee’ basis. If you would like advice in relation to a personal injury claim, please reach out to Emily Wright and Littles Lawyers today.
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