Pursuing a public liability personal injury claim in NSW
Public liability claims arise when a person is injured due to the negligence of an occupier, business, or public authority. In NSW, the Civil Liability Act 2002 governs the assessment of negligence, contributory negligence, and damages. The Act imposes thresholds for non-economic loss and caps on certain heads of damage. Pre-filing steps include a notice of claim to the defendant and, in some cases, a compulsory mediation.
This is an 8-step workflow for pursuing a public liability personal injury claim in NSW under the Civil Liability Act 2002. It covers duty of care, breach, causation, the pre-filing notice requirements, and assessment of damages.
Before you start
- Medical evidence of the injury (treating doctor reports, hospital records)
- Details of the incident: date, time, location, and how the injury occurred
- Evidence of the hazard or dangerous condition (photographs, incident reports, witness details)
- The claim must be brought within three years of the date of injury (limitation period)
The workflow
Establish duty of care and breach
Identify the defendant (occupier, business, council, or event organiser) and establish they owed a duty of care to the claimant. Assess whether the defendant breached that duty by reference to the s 5B test: the risk was foreseeable, the risk was not insignificant, and a reasonable person in the defendant's position would have taken precautions.
Gather evidence of the incident
Collect all available evidence: incident reports, CCTV footage (request before it is overwritten), photographs of the hazard, witness statements, council inspection records, and any complaints or prior incidents at the same location. Preserve evidence early.
Obtain medical evidence
Gather all medical records from the date of injury onwards. Arrange a medico-legal assessment with an independent specialist. The report should address diagnosis, treatment, prognosis, the impact on daily activities and work capacity, and the causal link between the incident and the injuries.
Assess causation and contributory negligence
Apply the factual causation test under s 5D: would the injury not have occurred but for the defendant's negligence? Consider whether the defendant will raise contributory negligence under s 5R, which can reduce damages. Assess the claimant's own conduct critically.
Calculate the heads of damage
Prepare a schedule of damages covering: non-economic loss (subject to the s 16 threshold of 15% of a most extreme case), past and future economic loss, past and future out-of-pocket expenses, domestic assistance (Sullivan v Gordon), and any fund management costs.
Send a pre-filing notice of claim
Notify the defendant (or their insurer) of the claim in writing. The notice should identify the claimant, the date and circumstances of the incident, the injuries sustained, and the heads of damage claimed. Allow the defendant a reasonable period to investigate and respond.
Attempt settlement negotiation or mediation
Engage in settlement negotiations with the defendant's insurer. Prepare a detailed settlement brief including the liability analysis, medical evidence, and schedule of damages. Many public liability claims resolve at informal settlement conference or mediation before proceedings are filed.
File proceedings if settlement is not reached
If settlement cannot be reached, file a Statement of Claim in the District Court (up to $750,000) or Supreme Court (above $750,000). Serve the claim on the defendant. Prepare for the litigation process including discovery, evidence in reply, and trial.
What you will have at the end
A settlement or judgment compensating the claimant for non-economic loss, past and future economic loss, medical and rehabilitation expenses, domestic assistance, and other heads of damage. The amount is subject to the caps and thresholds in the Civil Liability Act.
Common issues
- Failing to preserve CCTV footage or incident reports before they are overwritten or destroyed
- Not meeting the 15% threshold for non-economic loss under s 16 of the Civil Liability Act
- Underestimating the defendant's contributory negligence argument
- Missing the three-year limitation period, particularly where injuries develop slowly
- Not claiming domestic assistance (Sullivan v Gordon) as a separate head of damage
Run this workflow on a real matter
Quillio analyses the s 5B breach elements, identifies relevant prior incident evidence, and helps you calculate damages under the Civil Liability Act thresholds. It surfaces comparable case law on quantum for similar injuries. See /practice-areas/personal-injury-lawyers or start a free trial.
This workflow covers NSW public liability claims under the Civil Liability Act 2002. Other states have different civil liability legislation with different thresholds and caps. Claims against public authorities may also engage the roads and transport or local government immunity provisions.
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