Negligence and Injury

Contributed by Walter Hawkins, Principal/Practice Leader at Maurice Blackburn and Kahlia Jenkins, Associate at Maurice Blackburn and current to March 2022.

Key legislation in the ACT

1. Civil Law (Wrongs) Act 2002
2. Domestic Animals Act 2000
3. Limitation Act 1985
4. Victims of Crime (Financial Assistance) Act 2016

Negligence and claims for common law damages

Establishing liability

To bring a claim for damages an injured person must establish the following elements:

1. That another person or entity owed a duty of care towards them;
2. That the other person or entity breached that duty of care;
3. That the breach of that duty of care caused harm;
4. That the harm caused was reasonably foreseeable by the other person or entity; and
5. That the injured person sustained an injury.

Assessing Damages

Damages are usually assessed as a lump sum. If you settle a claim for damages for a lump sum amount or a Court awards you damages, this will finalise the claim and you will have no right to have your damages further assessed at a later stage.

1. General Damages – General damages are typically a lump sum amount for pain and suffering, loss of enjoyment of life, disfigurement, scarring and so on.
2. Special Damages – Includes treatment expenses, loss of income (including superannuation), and domestic care and assistance.

Time Limits

A claim for damages must usually be commenced within three years from the date of injury, otherwise it will be statute barred and unable to be commenced. However, this time limit can sometimes be different for minors or people under a disability so it is essential to seek legal advice if this may be the case.

Injuries on public property

Injuries that occur in a public place may have occurred as a result of the negligence of another person or entity. If you are injured in a public place you may be entitled to claim damages as a result of the negligence of others. In the ACT, the Civil Law (Wrongs) Act is the primary legislation for public liability claims. If you think you have a claim for injuries sustained in a public place you should:

1. Obtain the names and contact details of any witnesses to the accident;
2. Seek medical treatment and advise the hospital, or your doctor, how the injuries occurred;
3. Take photographs of your injuries and the place where your injury occurred as soon as practicable;
4. If CCTV is available, obtain a copy of the footage as soon as practicable. If a copy is not requested, CCTV is often taped over within a short period of time;
5. Report your injury to the owner or occupier of the public space as soon as practicable. If an injury notification form is available then you should complete it, and keep a copy.
6. Complete a Personal Injury Claim Notification Form (a ‘PICN’) and provide it to the Respondent.
7. Compensation for injuries incurred in a public place may include medical costs, coverage of lost income, home help and domestic assistance, and general damages for pain suffering and loss of enjoyment of life. You should keep records of the following:
   i. All expenses incurred including receipts and invoices for hospital expenses, medical treatment, and medication.
   ii. Any time you are required to have off from work as a result of your injuries and to receive treatment for your injuries.

Injuries caused by products

If you have been injured by a faulty, unsafe, or defective product, you may be entitled to compensation. It is advisable to keep the product that caused your injury and do not return it to the retailer, importer or manufacturer as it will be evidence in your claim. To be able to bring a product liability claim, you need to be able to show that the retailer, importer or manufacturer of a product owed you a duty of care, and that this duty was breached when they failed to do something it should have, or did something it should not have, which resulted in your injury.

1. A necessary step is to complete a Personal Injury Claim Notification Form (a ‘PICN’) and provide it to the Respondent.
2. Compensation for injuries incurred from a faulty, unsafe or defective product may include medical costs, coverage of lost income, home help and domestic assistance, and general damages for pain suffering and loss of enjoyment of life. You should keep records of the following:
   i. All expenses incurred including receipts and invoices for hospital expenses, medical treatment, and medication.
   ii. Any time you are required to have off from work as a result of your injuries and to receive treatment.
3. Time periods – There are time periods to provide the PICN and for a response to the PICN. Limitation periods to commence Court proceedings will apply. The area of law is complicated and you should obtain legal advice as soon as possible.

Victims of Crime

If you are a primary victim of an offence, if you are related to a homicide victim, if you paid for the funeral of a homicide victim, or if you witnessed homicide or are a witness in a homicide criminal process then you may be eligible to apply to Victim Support ACT for victims of crime compensation.

1. Jurisdiction – The Victims of Crime Compensation covers offences that occurred in the Australian Capital Territory. If the relevant offence occurred in another State or Territory you may be eligible for compensation under the financial assistance scheme in that State or Territory.
2. Time limits – You have three years from the date of the offence to apply for compensation, or three years from when you turn 18 if you were a child at the time of the offence.
3. Applications – Application forms can be downloaded from https://www.victimsupport.act.gov.au/ and submitted by email or post. You will also need to submit copies of receipts and invoices for all expenses you wish to claim for.

If you are able to claim workers compensation or some other type of claim, you might choose to bring that claim first before making a victims of crime claim.

Injuries involving animals

Australian Capital Territory legislation

The identification and registration of certain animals and the duties of owners, carers and keepers in relation to animals that cause injury in the Australian Capital Territory is governed by the Domestic Animals Act 2000.

An injury caused by animals

A person commits an offence if they are the carer or the keeper of an animal that attacks or harasses and causes injury to another person or animal. If a person is found guilty of this offence, the Court may order that the animal be destroyed. This is a strict liability claim (that is, you do not have to prove negligence) and in any of the following circumstances you may be entitled to bring a claim against the carer or keeper of the animal:

1. If you are injured by a domestic animal. For example, the owner of a dog where the dog bites a person is liable for the injuries caused by the dog;
2. If your pet is attacked by another domestic animal. For example, if your cat is attacked and injured by another animal;
3. If you think you or pet is being attacked by an animal and you are injured in the process of trying to protect yourself or your pet, or when trying to avoid injury.

Defences

The carer or keeper of an animal that causes injury may be able to defend a claim brought for injury in the following circumstances:

1. If the injured person provoked the animal;
2. If the animal only caused injury because it was coming to the aid of a person or another animal it could be expected to protect;
3. If the injury was caused on a premises owned or occupied by the carer or keeper, and the injured person or animal was on the premises without a lawful excuse.

If you have been injured

If you have been injured as a result of an animal you should:

1. Obtain the names and contact details of the owner or keeper of the animal, and any registration details;
2. Obtain the names and contact details of any witnesses;
3. Seek medical treatment and advise the hospital, or your doctor, how the injuries occurred;
4. Take photographs of your injuries and the place where your injury occurred as soon as practicable;
5. If CCTV or video footage is available, obtain a copy of the footage as soon as practicable. If a copy is not requested, CCTV is often taped over within a short period of time;
6. Although the claim is made against the owner or keeper of the animal, any claim will usually be against the public liability insurer of the owner or keeper. Relevant public liability insurance might attach to home and contents insurance.

Compensation

Compensation may include medical costs, coverage of lost income, home help and domestic assistance, and general damages for pain suffering and loss of enjoyment of life. You should keep records of the following:

1. All expenses incurred including receipts and invoices for hospital expenses, medical treatment, and medication.
2. Any time you are required to have off from work as a result of your injuries and to receive treatment for your injuries.

The law in this area can be complicated and there may be insurance issues. It is important that you obtain legal advice as soon as possible.