When you are injured because of someone else’s negligent actions or omissions a claim can be commenced against the at fault party provided certain legal criteria can be met. We commonly refer to these types of claims as common law claims or you might know them as negligence claims.

When making a common law claim there are two main considerations; one being liability and the other quantum. To put it simply liability refers to who is at fault and quantum is about damages or how much you will be paid. There needs to be an at fault party in order for you to claim damages. You are not entitled to damages unless you can prove liability. Of course the legal hurdles and tests that need to be determined in order to prove both liability and quantum are complex and technical and that is why it is important to have the assistance of an appropriately specialised compensation lawyer if making a common law claim.

While we distinguish the types of claims under headings such as motor vehicle accidents, work accidents, public liability, medical negligence by way of example the general principles of liability and quantum apply.

Liability

In order for your claim to be successful the following needs to be established by the evidence:
1. There was a duty of care
2. There was a breach of that duty
3. There was damage occasioned by the breach (causation);
4. Foreseeability (remoteness) of damages.

A common law duty of care arises only in relation to the injury complained of by the plaintiff, and is established by reference to the “neighbour principle”. The neighbour principle involves a consideration of the relationship between the plaintiff and the defendant and of whether injury to the plaintiff is reasonably foreseeable by the defendant as a consequence of the defendant’s conduct within that relationship.

There have been a number of changes to Public Liability law over the years. Just because you may have sustained an injury due to a fall on public property for example, does not necessarily mean that you are entitled to compensation. You must be able to prove that the injury sustained was as a result of the other party’s negligence. The fault must lay squarely with the owner or the occupier of the land on which the injury occurred.

The owner or the occupier of the property in which you sustained the injury has a “duty of care” for your safety – but you also have a personal responsibility for your own safety and to guard yourself against harm or injury, particularly with obvious dangers and hazards. If you are unable to prove that the owner or the occupier of the property is at fault then no matter how severe your injuries are, you may not be entitled to any compensation.

Common public and product liability claims

• slip & fall eg. on damaged footpaths, in supermarkets, shopping centres or other retail centres
• accidents in planes or on boats
• attacks by an animal
• accident at school or in the playground
• injuries at a sporting event or a recreational facility
• injuries due to defective products

If you have suffered an injury anywhere outside your home, you may be eligible for a public or product liability compensation claim.

The Personal Injuries Proceedings Act 2002 (PIPA) requires an injured person to deliver a Form 1 Notice of Claim Part 1 on the party they think is responsible for the incident causing injury within one month after the date that you first instruct a lawyer to make a claim or when the correct party responsible for your injury was identified, but in any event within nine months of the date of injury.

If it is past nine months from the date of injury, the obligation to submit the claim still applies however a statutory declaration setting out a reasonable excuse for the delay is also required. If the respondent does not accept your reasonable excuse for delay an application to the court may need to be made.

The “Notice of Claim form” sets out particulars of your claim and injuries suffered. Once served on the at fault party, they have 28 days in which to respond to the notice by either confirming they are the proper respondent or denying the fact. If they are the proper respondent they also will need to advise whether or not they consider the Notice of Claim complying with the legislative requirements.

If they do not respond at all then after 28 days s13 of the PIPA deems compliance.

Part 2 of the notice is to be completed and served on the respondents within 2 months of this notification “compliance”. This form contains details of any financial loss as a result of the injuries and can contain an offer of settlement.

The Claim Process
Investigation and Disclosure
Compulsory Conference
Calculating a Claim
How We Charge – No Win, No Fee