Private property injuries: What are your options?

Introduction

Even minor injuries can have an impact on your finances, which is why it’s important to understand your options for claiming compensation.

Most people are aware that they may be eligible for compensation if they injure themselves in a restaurant, shop or other place of business. But did you know you may be entitled to damages for accidents that occur on private properties?

The Civil Liability Act 2002 (NSW)

Under the Civil Liability Act 2002 (NSW), you can make claims for economic and non-economic losses you sustain due to injuries that are a result of someone else’s negligence. The legislation covers a range of public and private locations, provided you can show the owner or occupier owed you a duty of care and they breached this obligation.

For example, you could pursue a claim against your landlord and/or their insurer if you encounter harm at a property that you are renting as a tenant. Damages may also extend to incidents that occur while you’re a guest at someone else’s home.

Aside from showing you were owed a duty of care, you must also convince the courts that the negligence was the cause of your injuries. Section 5B of the Act outlines which factors are considered when establishing negligence:

• Whether the risk was foreseeable
• Whether the risk was significant
• Whether a reasonable person would have taken the necessary precautionary measures

3. Case Study: Stenning v Sanig [2015]

Personal injury claims in court. Personal injury claims can reach the courts if parties fail to settle.

The best way to gain insight into how personal injury claims might play out in court is to look at a real-life example. Last year, the NSW Court of Appeal revisited a case whereby the plaintiff pursued compensation against her neighbour after she slipped on a step outside their home.

Her neighbour, who was 90 years old at the time of the accident in 2010, had recently installed Caesarstone steps outside the property he shared with his wife. The material, a type of quartz, is more commonly used to make kitchen countertops and is slippery when wet.

In fact, the defendant had previously slipped on the steps himself prior to the incident that resulted in the claim. The accident caused him to place carpeted squares in the middle of each step and install a handrail to prevent further problems.

Nevertheless, the plaintiff sustained significant injuries after slipping while visiting her elderly neighbours. According to court documents, she often helped the defendant because his wife suffered from pancreatic cancer and he had issues with his feet.

The woman often used the couple’s side door, as she felt the Caesarstone was unsafe. However, firewood was blocking the second entrance on this occasion. As such, the woman tried to climb the steps and fell when her foot slipped on an uncarpeted part of the top step.

What factors were important?

The original trial judge awarded the woman $736,435 for her injuries, which included a fractured left wrist and the loosening of a knee reconstruction that she underwent in 2002.

District Court Judge Michael Finnane ruled that the risk of injury was foreseeable – as the defendant had already hurt himself by slipping on the Caesarstone – and not insignificant. Furthermore, the judge believed a reasonable response would have been to either remove and replace the steps with a concrete ramp, erect barriers to prevent people using them or cover them completely in a non-slip substance.

While the defendant had added squares of carpeting, these were deemed insufficient to prevent injuries because they only covered the middle of each step. On appeal, the defendant challenged a number of these decisions, but the appellate judges failed to overturn Judge Finnane’s previous ruling.

However, they agreed that contributory negligence was a factor, as the woman had not taken adequate care when navigating the steps, particularly after acknowledging they posed a safety risk. The Court of Appeal therefore adjusted the payout to $539,692.

Civil liability claims and compensation. Falling down steps on a private property could entitle you to compensation for your injuries.

4. Are other types of compensation available?

Civil liability claims are not the only form of compensation that could be available to you if you experience serious injuries due to negligence. You may also be entitled to a lump sum payment for total and permanent disabilities (TPDs), for instance.

TPD clauses are often included in superannuation policies or can constitute part of a separate insurance scheme. Successful claims may provide you with financial support in circumstances where physical and psychological injuries prevent you from returning to your job in the same capacity as before an incident.

Each superannuation fund and insurer has different definitions of how TPDs are categorised, but you must usually be unable to return to a role for which you previously had the right training, education or experience to perform. Crucially, you can pursue TPD payouts in addition to various other claims, including public and occupiers’ liability, motor accident compensation and medical negligence.

You may even have TPD insurance under more than one policy, so it’s important to get in touch with expert lawyers who specialise in multiple areas of personal injury legislation to ensure you’re fully informed of your options.

For more information on private property injuries and your options, contact PK Simpson personal injury lawyers. Our compensation lawyers can help you understand your rights and explore all available avenues for compensation, including TPD claims.