Public Liability Claims in Queensland

Many injuries are caused by the wrong-doing of another person. If you are the injured person (or plaintiff), you may be entitled to damages for the negligence of another person. If you are the ‘wrong-doer’ (or defendant), you may be liable to pay compensation to the injured person. These types of claims are known as public liability claims and include things such as:

• slips and falls;
• school accidents;
• playground accidents; 
• recreational and sporting accidents;
• sexual assaults;
• domestic accidents;
• food poisoning;
• dog attacks;
• diving accidents;
• accidents at amusement parks; and
• product liability including defective products.

Do you know your rights?

Imagine these scenarios:

(a) A resident in your street decides to spring clean and have a garage sale. You attend the garage sale and trip over the drive way, which has a small crack in it and is uneven, falling and fracturing your foot.

(b) Your partner goes on a base jumping adventure tour. The extreme sports tour operator provided equipment and training that meet safety standards but during your partner’s jump, the equipment failed and he was fatally injured.

Do you know your rights in relation to these scenarios? Traditionally, in each case the injured person would have had the right to claim damages in negligence, and the ‘wrong-doer’ - in these cases, the person who has the garage sale and the adventure tour operator– may have been liable to pay compensation.

However, there have been significant changes to the law in Queensland, and the rest of the country, which alter the test for negligence and limit the amount of damages that are recoverable.

The law in Queensland

In Queensland, the Civil Liability Act 2003 was enacted to address the so-called ‘insurance crisis’. The Civil Liability Act aims to facilitate ongoing affordability of insurance by clarifying basic legal principles and limited damages awards.

The Civil Liability Act is not limited to personal injuries. It applies to all civil claims for harm, including personal injuries, damage to property and economic loss.

Breach of duty

The Civil Liability Act sets out that a person does not breach a duty of care unless:

• the risk was foreseeable;
• the risk was insignificant; 
• in the circumstances, a reasonable person would have taken precautions to prevent or limit the risk.

Applying this test to our first scenario, it could be arguable that the person who had a garage sale at their home on their uneven driveway had not acted negligently and breached the duty of care to attendees of the garage sale because the risk of someone falling over a small, uneven crack in the driveway was not foreseeable or significant. The High Court recently decided this was the case in Neindorf v Junkovic [2005] HCA 75. While Neindorf v Junkovic applied the South Australian Wrongs Act 1936 , the provisions are similar to those in the Civil Liability Act.

Assumption of risk

If you engage in an activity that carries a high degree of obvious risk, even if the probability of the risk actually occurring is very low, you are assumed to have known about the risk unless you can prove otherwise. A defendant only needs to warn of an obvious risk in certain circumstances, such as if the law requires, if a person requests information or advice about the risk, or if the defendant is in some professional services, such as a doctor.

Dangerous recreational activities

The Civil Liability Act provides that a person is not liable in negligence for harm suffered to another person if the injured person was engaged in a dangerous recreational activity where the risk of injury was obvious.

Returning to our two scenarios, these provisions may severely restrict the availability of a damages claim in scenario (b).

Restrictions on damages payments

The Civil Liability Act limits the amount of damages that a person may claim for personal injuries sustained after 1 December 2002.

Damages for pain and suffering and loss of enjoyment of life (called general damages), are capped at $250,000. Injured persons can now only claim damages for loss of earning capacity at a maximum of three times the national average and the courts have the power to reduce a damages payment by 100% for contributory negligence. Other restrictions to specific damages also apply.

Your claim

Despite dramatic reform to negligence and damages awards in the Civil Liability Act, you may still be have a claim for damages if you have been injured by the wrong-doing of another person. The aim of the Act is not to prevent people who have been wrongly injured from claiming compensation, but to limit the amount of compensation payable and the entitlement to compensation where there is an obvious risk.

For example, if you slip over in a shopping centre because of water lying on the floor which you could not see, or trip over a loose piece of carpet in the bank, your entitlement to claim damages would probably not be affected by the Civil Liability Act, although the limits to the amount of damages you could be awarded would apply.

Talk to our specialist personal injuries and pubic liability lawyers at Gerard Malouf who can help you understand your rights and assist you in obtaining the compensation you are entitled to.

Take The Next Step

At Gerard Malouf & Partners we offer a service of the first consultation free to ascertain details of your claim & explain our services that only require payment if the action we undertake on your behalf is successful.