In some situations in which you are injured as a result of an accident, you may have a right to sue the person or organisation (such as a company) who caused your injury. The general name given to your right of action to sue in these circumstances is called “negligence”.

There are many situations in which you may be able to sue the person or body which caused your injury (the latter is called in law the “defendant”). For example, if you slip on spilt yoghurt in a supermarket, and are injured you may have a right to sue the supermarket for damages for your injuries. Other examples are being injured by a piece of rubble falling from a building site; or perhaps being injured while working on a poorly built footpath or bridge. In each of these examples, the owner of the premises on which you were injured may be liable for your injuries.

It is not always owners of premises who are liable to be sued in negligence. Sometimes for example a public authority such as a local council or the ACT Government, is liable for not having ensured a safe building or premises were constructed, for example.

Other situations include for example liability of sporting groups for the negligence of individual players.

It is important to be aware that the situations which may give rise to a liability for injuries by the owner to the injured person are many and varied. However, the law applying to these situations is generally the same.

It is important to have an understanding of these general principles and to know your rights in these circumstances, for a number of reasons:-

1. There are usually legal limitation periods which give a deadline for you to sue, generally commencing from the date of the accident.
2. If you are aware of your general rights and the operation of this area of law you can take simple and early steps to ensure that valuable evidence is created or preserved so that your case is protected.

DO I HAVE A CLAIM?

The mere fact that you have been injured does not necessarily mean that you will be able to establish negligence by the defendant. The law of negligence requires that certain elements to do with the conduct of the defendant or defendants will need to be satisfied if you are to make a successful claim.

Law of Negligence

“Negligence” in law will be proved if you can show the following:-

1. That the person, company or organisation you wish to sue (the defendant) owed you a duty of care.
2. That in the circumstances in which you were injured the defendant breached that duty of care.
3. That as a result of that breach of duty of care you suffered damage (in this context an injury).
4. The injury which you received must have caused by the breach of duty of care.

We will discuss each of these elements separately in the following paragraphs. In some circumstances, one of the elements will be quite clearly satisfied in the particular facts of the case.

However, it is most important that each and every one of these elements is met. Remember, if you cannot make out negligence, then you will have no case notwithstanding that you have been injured.

DUTY OF CARE

In many cases there will be an established duty of care owed by the defendant to the plaintiff.

In the case of owners of public premises, such as supermarkets, public buildings, sporting grounds, and the like, there is a clear duty of care owed by the owner of the premises to anybody which might be reasonably foreseeable to be on the premises.

For example, it goes without question that the owner of a supermarket owes a duty of care to all people who enter its premises for the purposes of shopping, cleaning the premises etc. In some cases, however, duty of care becomes a live issue.

For example, it is sometimes questioned whether for example a duty of care is owed by an owner of premises to an entrant who was on the premises illegally or without the invitation of the owner. It is potentially possible that even somebody who entered the premises for the purposes of committing a criminal act might be owed a duty of care.

However, in a case such as that, there are certain defences available to the defendant such as the general defence that a person should not recover damages if they were injured as a result of committing an illegal act.

Whether a duty of care exists is most often challenged in cases of liability of public authorities (in the ACT, this will usually be the Australian Capital Territory) for protecting remote or large areas which may mean the Authority owes a lower standard of care than the occupier of premises which are small, and easily maintained.

Where an Authority encourages members of the public to attend these kinds of places, it is more likely that a duty of care will arise.

STANDARD OF CARE

Once it is established that the owner owes a duty of care, the question is what standard of care exists in the particular case. “Standard of care” is the degree and level of acts or duties which the defendant is required to undertake in order to protect people to whom it owes a duty of care.

The content of the standard of care will nearly always be different in every case. In deciding what the appropriate standard of care was in the circumstances, the court will take into account evidence such as the nature of the premises and their purpose, the accessibility of the premises and their purpose, the accessibility of the premises to the general public and so on.

For example, in the case of an injury in a supermarket, the standard of care owed will be fairly high as it is quite likely that a large number of people will be coming through the premises at any one time.

Consideration of the standard of care also includes considering the degree of probability of the occurrence of injury and the magnitude (in other words seriousness) of the risk.

The standard of care is also determined by reference to the nature of the plaintiff. For example, a school with responsibility for very young children owes a higher standard of care to them than it owes to adults coming on to the school premises. The age, mental capacity, and nature of the plaintiff’s reason for entering the premises are all inter-linked to the question of the appropriate standard of care.

The nature of the premises and the standard of care will determine the steps which the defendant is required to take to protect the people to whom it owes a duty of care.

This can include things such as the requirement to place warning signs, the requirement to place barriers and fences around a dangerous part of the premises, the requirement to ensure the structure of buildings on the premises is safe and so on. 

CAUSATION

It is a question of law whether the negligence by the defendant caused the injury.

In some cases it will be very obvious that the defendant’s negligence caused an injury.

For example, where somebody is hit on the head by a loose part from a piece of machinery which had not been adequately maintained, their head injury is clearly caused by the negligence of the defendant.

In other cases, particularly in cases where the injury might have only arisen gradually, causation will not necessarily be clear.

Just because on the facts the particular act done (or not done) by the defendant caused the plaintiff’s injury, that alone will not necessarily mean that the defendant is liable.

As the question of causation is a possibly difficult one and often dependant very heavily on the facts of your case, it is one which your solicitor will discuss with you.

DAMAGES

Once negligence is established, you will need to be able in your case to quantify your damages. There are different types of damages. The damages which are most commonly referred to as “damages” are general damages for pain and suffering. This is an amount of money, different in every case, which has been developed by the courts over the years as being the most appropriate amount to be awarded in your case.

Generally speaking, the more serious the injury, the greater the amount of general damages that is awarded to you. Seriousness of injury includes a consideration of the amount and type of treatment you have had, the initial pain and suffering arising from the injury, the length of time over which the injury has affected you, and so on.

However, in addition to general damages, there are also damages for economic loss such as wage loss or loss of the ability to earn in the future; damages for having to engage family members to do unpaid care; and damages in the form of payment of your medical and other out-of-pocket expenses.

The amount and type of damages you are paid will depend very much on the facts of your case.

PRESERVING YOUR CASE

This section deals with practical steps you can to ensure that your case is not compromised due to early lack of evidence or details of how to find that evidence.

1. Time Limits

In the ACT at present there is a limitation period within which you may sue. It is six years from the date of the accident or six years from the date your cause of action arose.

The latter part of the definition refers to situations where you may not initially realise you have been injured and you developed a latent condition which you only realise further down the track has been caused by the defendant’s negligence. If your injury falls in the latter category you should immediately seek legal advice.

You should make sure you make a note of that time limit and seek legal advice well before its conclusion. In many cases involving personal injury, your solicitor will need to undertake investigations and obtain expert reports prior to being able to advise you whether you have a reasonable claim and issue court proceedings.

It is possible to obtain an extension of time but the onus would be on you to show the court why you did not commence proceedings within the six years from the date of the accident.

It is better to not to have to obtain an extension of time in the first place and to seek legal advice promptly. 

2. Preserving Evidence

At the time of the accident, if possible, make a written report of the accident to whoever you believe is responsible for the place or premises where you were injured. This is not strictly speaking required by law, but it does protect you if the time limit further down the track becomes a problem.

Certainly if you are asked to fill out a form providing details of your accident/injury, you should do so.

Often other people witness the accident. If possible, obtain their names and addresses or at least their phone numbers. Particularly if they were independent witnesses who are not related to you or who do not work for the defendant, they could be very valuable witnesses.

You should also make sure you keep receipts for all treatment expenses you incur as a result of the accident, and other incidental expenses.

The latter expenses will not always be claimable but you should keep the receipts initially so that it is not difficult for your solicitor to particularise details of the expenses you are claiming. In most cases all reasonably incurred medical expenses will be ordered to be paid by the court. 

3. Other Defendants

You should not necessarily assume that the most obvious defendant is the only person or body you can sue for negligence. Often it is the case that more than one person or body are each partly negligent, or it may be so unclear as to which of them is primarily liable that ultimately your solicitor might advise you that proceedings should be commenced against both.

For example, if you are injured by a faulty elevator, it may not just be the owner of the building who is potentially liable, but also the manufacturer of the elevator.

For this reason, if possible at the time of the accident you should take a note of the manufacturer of any machinery on which you were injured, not just the details of the owner of the premises or the location of the premises, although you should also do the latter.

If you are injured at work or if you are injured in circumstances where you think there might be a connection with your employment (such as the fact that your employer sent you to somebody else’s premises and you were injured on those premises), you should also take legal advice about whether there is an action in negligence against your employer as well as the owner of the premises.

4. Workers Compensation

You may not necessarily have an action in negligence against your employer, but nevertheless you might have had your accident in the course of your work. If you did so, you should submit a workers compensation claim to your employer.

This does not of course prevent you from suing the person or body ultimately responsible for your accident but it can mean more rapid payment of medical expenses and wage loss by the workers compensation insurer initially.

Any amounts paid by the workers compensation insurer are then claimed against the person or body you sue for negligence.

5. Medical Evidence

Even if you do not think you have been seriously injured, after any accident it is highly desirable that you see your general practitioner. If you were seriously injured then it is likely that you will have been taken to hospital and/or referred to a specialist doctor for further treatment.

However, if your injury did not come into one of these categories it is still a good idea to make an appointment shortly after the accident to see your general practitioner. This is particularly so to allow the general practitioner to examine you and verify whether your injury requires follow-up treatment or referral.

It is also useful as a record in case there is any allegation by the defendant that the injuries for which you are claiming were pre-existing.

It is also desirable to keep a diary of your symptoms, treatment and disabilities over time. Such a diary can be very useful as an aide-memoire, as it is surprisingly easy to forget many details over the several years which it may take to conduct the proceedings.

All these details will be requested by your solicitor in any event, as particulars of these matters must be provided to the defendant at several stages in the proceedings.