Other Injuries - Public Liability Claims Gold Coast, Brisbane & Logan

In order to be able to pursue a public liability personal injury claim, you must be able to show that an individual or another entity (eg company, council or government department) caused or significantly contributed to the accident that led to your injuries. A claim may be able to be brought in negligence, breach of contract or even for breach of the Australian Consumer Law.

Public liability claims can arise in many different ways, including:

Employees / workers injured on someone else’s worksite
Independent contractors / subcontractors injured on someone else’s worksite
Slip and fall accidents
Trip and fall accidents
Injuries sustained at someone else’s home or rental premises
Boating accidents
Jetski accidents
Watersports accidents
Injuries sustained on playgrounds
Injuries suffered in a public parks
Injuries suffered in a gym or leisure centre
Injuries sustained in residential or commercial buildings
Injuries sustained at school
Injuries caused by dogs, horses or other animals
Injuries sustained during sporting activities
Injuries sustained at recreational activity venues
Injuries sustained at amusement parks and venues
Injuries caused by defective equipment or faulty products
Airline and aviation accidents
Physical assaults and sexual assaults
Psychological injuries following the serious injury or death of someone else

Many of these accidents lead to very serious injuries including catastrophic spinal cord injuries, traumatic brain injuries, neck and back injuries, fractured limbs, soft tissue injuries, psychological injuries and sometimes even fatalities. For family members whose relative died or was seriously injured as a result of an accident, the relative may also be able to bring claims for loss of dependency, loss of services and/or nervous shock (psychiatric injury).

When are you covered by public liability insurance?

Almost all home and contents policies contain public liability insurance. Most businesses, companies and associations will also take out insurance policies which contain public liability insurance. Schools, councils and government departments also have public liability cover. Most boat and jet ski insurance policies and travel insurance policies also contain public liability insurance.

If your injury arises as a result of someone else’s negligence, breach of contract or breach of the Australian Consumer Law, then you will be able to make a claim against that individual or company. They will then pass the claim on to their public liability insurer who covers them and pays any compensation or damages payable.

Even if you are injured whilst working as an employee, you may still be able to pursue a public liability claim if someone other than your employer (or a co-worker employed by the same company) caused the accident or injury. You would still be entitled to receive your normal workers’ compensation statutory benefits (ie “compo”) but would also be able to pursue the public liability claim.

It is important to note that public liability insurance only covers those people who are injured as a result of the negligence of the insured person or entity. If the accident was simply an unfortunate accident, which was unavoidable, then you will not be covered by any public liability insurance. If the accident was your own fault, then your public liability insurance will not normally cover you, although you should check your policy in that regard (as it might pay limited benefits).

Public liability insurance policies also contain various exclusions. For example, members of the same household are not normally covered by the home and contents public liability insurance. So, if one member of your household injures another member of your household, the injured family member will not normally be covered by any public liability insurance, although you should check your policy in that regard (as it might pay limited benefits). If, however, someone else comes on to your property and is injured as a result of your negligence, then they would be covered by your public liability insurance. There is normally a small excess payable and the public liability insurer then assumes the conduct of the claim and pays out any compensation.

What is the process?

Public liability claims in Queensland are commenced by serving a Form 1 Part 1 Notice of Claim on the individual or company that caused or significantly contributed to the accident. That person or company is then called “the Respondent”.

The public liability injury claims process is as follows:

You are injured in an accident or as a result of the intentional act of someone else;
A Form 1 Part 1 Notice of Claim is served on the Respondent within one (1) month of you instructing a lawyer to act on your behalf or within nine (9) months of the accident, whichever is the earlier;
The Respondent pays their excess and engages their public liability insurer;
The Respondent’s public liability insurer (”the insurer”) sends a response, within one (1) month of receiving the claim form, pursuant to s.10 and s.12 of the Personal Injuries Proceedings Act 2022 (Qld) (“the Act”) confirming that their insured is the proper respondent and that the information contained within the claim form complies with the requirements of the Act (“their compliance response”);
You continue to receive treatment and rehabilitation until you reach maximum medical improvement, which can take twelve (12) months or more;
A Form 1 Part 2 Notice of Claim is served on the insurer within two (2) months of receiving their compliance response;
The insurer provides a liability notice (ie whether they admit liability for the accident or not) within six (6) months after providing their compliance response;
Once your injuries have reached maximum medical improvement (ie they are stable and stationary), which is often around the twelve (12) month mark, we then arrange medicolegal appointments to assess the nature and extent of any ongoing pain and restriction you have as a result of your injuries;
The insurer then arranges their own independent medicolegal appointments;
Once all medicolegal specialists’ reports have been received, which is usually around sixteen (16) months post-accident, we compile an offer of settlement on your behalf;
The parties then attend a compulsory settlement conference around eighteen (18) months post-accident (NB around 7 out of 10 matters resolve at this stage);
If the parties are unable to negotiate an informal settlement at the compulsory conference, they are required to exchange Mandatory Final Offers which remain open for fourteen (14) days and cannot be withdrawn;

If the claim fails to resolve at the compulsory conference and neither party accepts the other’s Mandatory Final Offer then:

Official court proceedings are commenced, which means that a Claim and Statement of Claim is filed in the appropriate Court registry;
Various Court documents are then exchanged between the parties, including a Statement of Loss and Damage, a Statement of Expert and Economic Evidence and Lists of Documents;
Negotiations can continue, or be re-instigated, at any time during this process;
If informal negotiations fail, then the parties will usually proceed to a mediation, which is similar to the compulsory conference but with the intervention and assistance of an experienced mediator. The mediation normally occurs at around 24 months post-accident (NB around 9 out 10 matters resolve at this stage);

If the claim fails to resolve at the mediation:

The parties start preparing for trial;
Negotiations can continue, or be re-instigated, at any time during this process; and
If informal negotiations fail entirely, then the matter proceeds to trial. (NB less than 2% of personal injury claims actually proceed to trial);

What compensation can you receive in public liability personal injury claims?

The following heads of damage can be claimed in a public liability claim:

pain and suffering and loss of enjoyment of life
past economic loss (lost income)
past special damages, also known as out of pocket expenses (eg treatment, rehabilitation, medication, transportation, aids, appliances, prosthesis, home modifications, transport modifications, education and training)
past paid services (eg mowing, gardening, housekeeping, cleaning, cooking, attendant care and support services, etc), provided these services were not already being provided prior to the accident
Past unpaid (voluntary) services provided by friends and family, if those services were provided for at least six (6) hours per week for a minimum of six (6) months and provided these services were not already being provided prior to the accident
interest on any past economic loss (lost income), expenses and/or paid services
future economic loss – likely loss of income or earning capacity
future likely special damages / out-of-pocket expenses
future likely paid services
future likely unpaid (voluntary) services to be provided by family and friends

What will you need to do during the claim?

The following heads of damage can be claimed in a public liability claim:

You will not need to change anything. You should live your life normally (or at least as best you can with the injury you have) and we will look after the claim side of things.

Your involvement in the claims process will include the following:

We will ask you to attend an initial appointment with us to provide us with any information you have about the incident;
We will send the draft claim form to you and ask you to advise us of any changes that are needed;
We will arrange for you to sign the claim form;
We will arrange for you to attend one or more medicolegal appointments;
You will also need to attend one or more medicolegal appointments for the insurer;
We will ask you to provide us with an impact statement (outlining the impact that the accident has had upon you, particularly your work capacity);
We will ask you to provide us with copies of relevant payslips, tax documents, employment documents and receipts you have (for treatment, paid services, etc) as well as any other relevant documents;
We will need you to provide us with any other information required to put an offer of settlement together;
We will seek your approval in relation to any offers of settlement that we propose to make on your behalf;
We will seek your instructions in relation to any offers of settlement made by the insurer;
You will need to attend a compulsory settlement conference to answer any further questions we might have and to provide us with your instructions regarding any offers of settlement;
You will not be required to answer questions from the insurer or their legal representatives during the conference.

(N.B. 7 out of 10 claims resolve at the compulsory conference)

If the claim fails to resolve at the compulsory conference and neither party accepts the other’s Mandatory Final Offer, then:

We will, some time later, ask you to attend a mediation to answer any further questions we might have and to provide us with your instructions regarding any offers of settlement.
You will not be required to answer questions from the other side during the mediation.

(N.B. 9 out of 10 of claims resolve by this stage)

If the claim does not settle at the mediation:

If further offers of settlement are made or received, then we will need to seek your instructions;
If the matter does not resolve informally, then it will be set down for trial and you will need to attend court and give evidence as a witness.

(NB less than 2% of personal injury claims proceed to trial)

So, what can East Coast Injury Lawyers do to help?

We provide free initial advice. We will consider all available information, undertake investigations where needed, and provide you with our opinion regarding your claim. This will include whether we believe you would succeed in a claim, what your options are with respect to the various insurance schemes, NIISQ and the NDIS and what you should do immediately to ensure that you receive the best treatment, care and support possible as quickly as possible.

If we consider that your personal injury claim is likely to have reasonable prospects of success, then we will agree to take your matter on, on a “no win no fee” basis. Click here for more information on how we charge.

Strict time limits apply to personal injury claims, so speak with one our expert personal injury lawyers today.

FAQs

When should I get a personal injury lawyer involved?

You should engage a personal injury lawyer as soon as possible. This is so:

We can help prepare your claim form and serve it on the Respondent on your behalf
We can make sure you do not miss any important time limits
We can provide you with advice about your rights and obligations
We can make sure that what you are telling the doctors and the insurer is consistent – ie your story about what happened needs to remain the same, or conflicting versions need to be clarified as soon as possible, as credibility is critical in these claims.
We can make sure that you are telling the doctors and the Insurer the full story (eg disclosing previous injuries or claims), so that your credibility remains intact.
We can make sure that your claim form and medical certificates list all injuries you have sustained, no matter how insignificant – sometimes the doctors need some guidance in that regard.
We can make sure that all of your injuries are being fully investigated and treated.
We can start putting your offer of settlement together.

How to start a public liability personal injury claim?

See your doctor and report all injuries, no matter how insignificant they seem.
Obtain referrals for any further investigations or treatment that you need, like x-rays and scans, physiotherapy, counselling and specialist reviews and commence treatment as soon as possible.
Contact us to make a time to meet with one of our expert injury lawyers. We will come to you, if you would prefer, at no additional cost.
We will complete a Form 1 Part 1 Notice of Claim (“NOC”) with you.
We will then serve the NOC on the person or entity (eg company) that caused the accident which led to your injuries (“the Respondent”).
The Respondent will pass the claim on to their public liability Insurer who will then handle the claim on the Respondent’s behalf.

What time limits are involved with public liability injury claims?

Your Form 1 Part 1 Notice of Claim must be received by the person or entity (eg company) that caused the accident (“the Respondent”) within one (1) month from the date you instruct a lawyer to act on your behalf or within nine (9) months from the date of accident, whichever is the earlier.

A claim can still be lodged outside the nine (9) month timeframe, up to three (3) years post-accident, provided a reasonable excuse for delay is given.

Ultimately, you have to resolve your claim or commence court proceedings within three (3) years from the date of accident, failing which you lose all rights to receive compensation.

There are some very limited exceptions to the three (3) year rule. If you are outside that timeframe, we would recommend you seek legal advice urgently.

Who will I be suing and who pays?

Your claim will be against the individual or entity (eg company) that caused your injuries but their public liability insurer takes over the conduct of the claim on their behalf and pays any compensation.

What if the person that caused my injury was a friend or family member?

It does not matter if your injuries were caused by a family member or friend as the public liability insurer will be the one paying out any compensation. You friend or family member may have to pay a relatively small excess (if any) but that would be it.

The public liability insurer will, of course, want your family member or friend to provide a statement about what happened and, in the extremely unlikely event that the matter was to proceed to trial, they might be called upon to give evidence about what happened but that would be it.

There are, however, some exceptions to this rule. If your family member or friend was under the influence of alcohol or drugs, intended to harm you, was using something without the owner’s authority or without legal justification or was undertaking an illegal activity at the time, the public liability insurance policy may be voided, so that your friend or family member is not covered. We would look into this for you before proceeding with any claim.

What injuries result in compensation being paid?

The types of injuries that you can claim for include the following:

Fatal injuries / Death claims
Catastrophic injuries
Head injuries and brain injuries, including closed head injuries, ttraumatic brain injuries (TBI) and acquired brain injuries (ABI)
Post-concussion syndrome
Spinal cord injuries, including tetraplegia (also known as quadriplegia) and paraplegia
Brachial plexus injuries
Amputation injuries
Neurological injuries
Thoracic outlet syndrome injuries
Complex regional pain syndrome injuries
Cauda equina injuries
Spinal injuries
Facial injuries including injuries to the jaw
Whiplash injuries
Neck injuries
Back injuries, including fractured vertebrae, soft tissue injuries and the like to the lower back or lumbar spine, as well as mid-back and thoracic spine
Bone fractures
Pelvic injuries and hip injuries
Joint dislocations, including ankles, knees, hips, shoulders, elbows, wrists and fingers
Shoulder injuries
Elbow injuries
Hand injuries, wrist injuries and finger injuries
Degloving injuries of fingers, arms, legs, etc.
Internal organ injuries
Abdominal injuries
Hernias, including inguinal hernias (groin) and umbilical hernias (belly button)
Groin injuries
Leg injuries and thigh injuries, including fractures
Knee injuries, including ACL tears, PCL tears, MCL tears, LCL tears, torn meniscus, fractures and dislocations
Foot injuries and ankle injuries
Toe injuries
Soft tissue injuries
Blindness
Burns
Cuts, lacerations and bruises
Chemical injuries
Scarring
Chronic pain disorder
Psychiatric and psychological injuries including depression, post-traumatic stress disorder, adjustment disorder, anxiety, traffic phobia and pain disorder
Nervous shock injuries
Aggravation of pre-existing injuries
Aggravation of pre-existing degeneration

Do public liability insurers fund treatment upfront?

No. Public liability insurers are not obliged to fund anything (including treatment or lost wages) as the claim goes, so you will need to pay for your treatment yourself and we will then claim the cost of that treatment in your offer of settlement.

Please keep evidence of any expenses incurred in the form of invoices and receipts.

What is my claim worth?

How much compensation or damages you will be entitled to receive is dependent on a lot of different factors, including:

What ongoing problems you have as a result of your injuries – obviously, we won’t know this until your injuries are stable and stationary and have been assessed by the medical experts
Your age, which impacts on how long you were going to work for and how long you will experience pain and suffering from your injuries
What the doctors say about your injuries, particularly the degree of impairment and the level of disability you have as a result of your work related injuries
Whether you have pre-existing degeneration, previous injuries or other conditions that were impacting on you, or are going to impact on you in the future
What restrictions and difficulties you have, particularly with respect to your work capacity
What your income and earning capacity was like pre-accident, compared to what your income and earning capacity is now like
What treatment, care and support needs you have
Whether you have needed voluntary (unpaid) care and assistance as a result of your injuries and, if so, the nature and extent of that support
Whether you have needed paid care and support because of your injuries and, if so, the nature and extent of that support
Whether you have a need for home or vehicle alterations and other aids or equipment
How much ongoing treatment, medication and care and support you need in the future

Public liability injury claims often settle for hundreds of thousands of dollars or more.

How much do lawyers charge to pursue a public liability injury claim?

It depends on how much legal work it takes to resolve your claim. Every matter is different. Our hourly rates are extremely competitive. For more information on how we charge, click here.

Do I have to pay the insurer’s costs if I lose?

This is extremely unlikely. You only have to pay some of the insurer’s costs if you proceed to trial and lose completely or if you receive a judgment for less than what the insurer has previously offered to pay you.

The number of personal injury claims that actually proceed to trial is less than 2 in 100, so the chances of you having to pay the insurer’s costs are very slim. During the course of your claim, we will provide you with detailed advice on the quantum of your claim, so that you know what amount would be considered to be a good reasonable settlement amount.

Can I pursue a public liability claim and also have a workers’ compensation claim running at the same time?

Yes. If your injury was sustained during the course of your employment (but was caused by someone other than your employer or a co-worker), then you will be able to lodge a workers’ compensation claim with WorkCover Queensland (or your employer’s workers’ compensation self-insurer).

You can then also lodge a public liability injury claim against the person or company that caused your injury.

WorkCover Queensland (or the workers’ compensation self-insurer) will pay for all reasonable and necessary treatment and rehabilitation, as well as weekly benefits for any time off work, upfront. The public liability claim will simply run alongside the WorkCover claim until the WorkCover claim ceases. The public liability claim will then proceed on its own.

The amount that WorkCover pays will need to be refunded to them once your public liability claim settles. We will claim what WorkCover pays to you from the public liability insurer in your offer of settlement and then refund that amount so that you do not lose out in any way.

Will I have to refund what WorkCover pays to me?

Yes. The public liability insurer will have to refund, out of your settlement monies, whatever WorkCover has paid to you.

The amount that WorkCover has already paid, however, is added to the other amounts that are claimed from the public liability insurer in your offer of settlement, so you do not lose anything.

Am I able to claim benefits from the National Injury Insurance Scheme (NIISQ) if I have a public liability injury claim?

No. The Queensland Government has not extended coverage under the National Injury Insurance Scheme to public liability injury claims. You have to have been injured at work or in an accident on the road to qualify for NIIS benefits.

You may, however, be entitled to make a claim under the National Disability Insurance Scheme (NDIS). For more information about the NDIS, click here.

Am I able to claim benefits from the National Disability Insurance Scheme (NDIS) if I have a public liability injury claim?

Yes, provided you are between the ages of 7 and 65 when making the application to the NDIS.

The NDIS provides the following benefits:

daily personal activities needs
transport to enable participation in community, social, economic and daily life activities
workplace help to allow a participant to successfully get or keep employment in the open or supported labour market
therapeutic supports including behaviour support
help with household tasks to allow the participant to maintain their home and home environment
help to a participant by skilled personnel in aids or equipment assessment, setup and training
home modification design and construction
mobility equipment
vehicle modifications

The NDIS will NOT fund a support that is:

the responsibility of another government system or community service (eg something funded by NIISQ)
not related to a person’s disability
relates to day-to-day living costs that are not related to a participants support needs
is likely to cause harm to the participant or pose a risk to others

Will I have to refund what the NDIS pays me?

Yes. The public liability insurer will have to refund, out of your settlement monies, whatever WorkCover has paid to you.

The amount that WorkCover has already paid, however, is added to the other amounts that are claimed from the public liability insurer in your offer of settlement, so you do not lose anything.

You may also be precluded from claiming certain benefits from the NDIS for a period of time into the future (if a claim has been made for those costs from the public liability insurer).

Do I have to pay tax on any compensation I receive from the public liability insurer?

No. In personal injury claims in Queensland we only claim net losses (after tax), so the ATO does not impose tax on any settlement monies. If, however, you invest those funds and earn income then you may well have to pay tax on that income. You should seek advice from your accountant or financial advisor in that regard.

During your free initial consultation, we will:

Determine exactly what injuries you have suffered;
Work out precisely how the accident occurred;
Decide whether someone else caused or significantly contributed to your accident;
Decide whether your claim is likely to be economically viable;
Provide you with our advice on whether we believe you will win and whether your claim will be viable;
Discuss the public liability claims process and what will be required of you;
Discuss what costs will be involved and how we charge; and
Respond to any questions that you might have in relation to your claim.

*East Coast Injury Lawyers is led by Accredited Specialists in Personal Injury Law: Sean Delpopolo, Helen Ashton, Nickelle Morris.