Public Liability Standards and Legislation

The most common responses I get when I make a public liability risk recommendation to control or mitigate a potentially serious risk is: “it complies with the Building Code of Australia” or “show me the law that says you have to do that” or “this building was built before the BCA and its not retrospective”.

Public Liability (sometimes known as General Liability) is part of the law of torts which focuses on civil wrongs. Applicants (the injured party) usually sues the respondent (the owner or occupier) under common law based on negligence and/or damages.

Some states have recently passed legislation dealing with some aspects of public liability claims, including payouts and processes. But this aside, there is little legislative guidance as to how liability is to be judged and compensation determined. Claims are dealt with under ‘common law’ principles established through a long history of case law and, if litigated, are made by way of civil actions in the relevant jurisdiction.

Claims are usually successful when it can be shown that the owner or occupier was responsible for an injury or property loss and therefore they breached their duty of care. Many people think that as long as you are complying with minimum standards or building codes that you have not breached your duty of care – WRONG! There have been many recent judgements that found that the risk of injury from fully “compliant” premises was still foreseeable and that further risk controls should have been implemented. Installing additional handrails to accommodate a higher than average prevalence of elderly patrons is a classic example. Something else to be aware of is precedents that have been set in your industry. For example, if someone is injured falling down a set of stairs that were dimensionally compliant with Australian standards but the edges were not highlighted then the person responsible for those stairs could be found negligent if it was proven to be common practice to highlight the noses of stairs in similar situations or operations ie if others were able to foresee the risk and had introduced additional controls ( and probably outside the scope of any existing standard or code of practice).
Remember that standards and building codes are developed by committees or panels of “experts” made up representatives from various interested parties and all with different agendas. The outcome therefore is likely to be a compromise and not necessarily the safest or less risky alternative. A few examples of these compromises are:

BCA only requires platforms with a drop over 1m to have a balustrade yet there have been many serious injuries involving people falling from platforms with a height of less than this, loading docks for example.

BCA requires that only balustrades protecting a drop of over 4m must be free of horizontal climb points yet children have been killed after climbing balustrades with only a 2 to 3 metre drop. How many multi-storey apartments, built before the current BCA, feature balustrades with a 300mm high concrete plinth that children love to climb on and have fallen from?

There is no legislation or standard that requires wheel stops in car parks to be highlighted yet most major shopping centres (who’ve probably had a few people trip on them) will paint any wheel stop, in a pedestrian path, bright yellow.

Architects always specify a bright, shiny terrazzo floor for a shopping mall or office building entry foyer that meets all the appropriate standards yet whenever it rains the surface is as slippery as an ice skating rink. The controller of the premises then has to lay additional matting, post warning signs or employee additional cleaners.

Another thing that many managers of public venues forget is that statute laws such as Occupational Health and Safety Legislation are not only applicable to traditional workplaces and employees but also to “controllers of premises” and any person coming onto those premises. WHS Legislation has moved away from being prescriptive, in that traditional minimum requirements did not suit or were impractical for some workplaces. The philosophy in most states now is one of risk management or the requirement to identify, assess and control hazards and risks. In this case you have what’s known as a “Strict Liability”.

Other reasons why there has been an increase in claims could be due to the fallout from some states Workers Compensation freezes where limits have been put on claims for workers compensation making public liability a more financially attractive option. Whilst there is no avenue for any one of your employees to claim against your public liability policy, it is becoming more and more prevalent for an employee from another business to be presented with an option to claim one or the other.

For example, in the past, an employee in another business may decide to buy their lunch in a shopping centre. If that employee slipped over and broke a leg in your business they may be able to claim on their employers’ workers compensation policy or your public liability insurance. As common law settlements are much higher than workers compensation pay outs there is a certain amount of attraction towards a claim against your public liability.

Another reason for increases in claims could be due to solicitors becoming more approachable to the public. Many Lawyers now offer their first consultation for free or, if there is a high probability of winning the case, they may offer no win, no pay.

For more information on public liability risk management, public liability claims and public liability insurance visit our Public Liability Website