Council assesses all claims for compensation in accordance with the
Civil Liability Act 2002 (CLA). The CLA provides protections for local government authorities that we will rely on to defend a claim.
The fact that an incident has occurred on Council owned/managed land does not automatically mean Council is liable, or will provide you compensation.
Council is not liable for loss or damage unless you can prove Council has acted negligently or is in breach of the law. It is your responsibility to prove Council acted negligently. In establishing liability, consideration will also be given to whether your actions contributed to the loss/damage.
Establishing negligence can be time consuming and often difficult. If you hold an insurance policy which provides cover for this type of loss (i.e. motor vehicle or domestic insurance), you may find it quicker and easier to lodge a claim with your own insurer as, in most cases, proving negligence is not required. Any compensation paid by Council comes from Council’s general account, that is, ratepayer funds.
The process of conducting enquiries and determining an outcome can take 4 to 6 weeks. Sometimes there are delays in obtaining information which is beyond Council's control (i.e. information required from third parties, contractors or witnesses). Council endeavours to respond to claims as quickly as possible, but claims brought in negligence are often quite complicated and Council asks for your patience and co-operation during this time.
Whilst Council regrets any incident, we are unable to use rate payers' money to pay compensation unless a clear legal liability has been established.
Yes. It is your right to engage a lawyer at any time. However, the decision to do so is entirely a matter for you and Council accepts no liability for legal costs you incur. The issue of legal costs and the risks associated with litigation is something you should discuss with your legal advisor.
To determine negligence, you must establish, on the balance of probabilities, three essential elements:
1. A duty of care was owed by Council to you; and
2. Council breached the duty of care owed to you; and
3. The loss or damage suffered was caused by Council’s breach of duty of care - put simply, you must establish that your loss has been directly caused by Council rather than by other factors.
The CLA was enacted in 2002 because the number of legal cases against public entities had been rapidly increasing. As a result of these legal cases, Councils were finding it hard to find insurance companies to cover them, and if they did, the cost of insurance was beyond Councils' means.
The CLA is a way for people to take legal action against Council but only if they can prove Council has acted negligently or breached the law. The CLA promotes the idea of personal responsibility. This means that Council does not have to warn you of an obvious risk.
An obvious risk is if a reasonable person knew about the risk or ought to (because of common knowledge) have known about the risk. An example of an obvious risk is diving from a ledge into shallow water at low tide, or tripping over something that a reasonable person would have seen.
One of the most effective ways to avoid confusion about the circumstances surrounding your claim is through the use of photographs. Providing photographs with your claim is not essential, however it ensures that Council is looking into the correct issues.
Please ensure that you only take photographs if it is safe to do so.
If you do wish to provide photographs, Council requests that you provide a variety of shots and angles to clearly show the situation that supports your claim.
If you have suffered a personal injury you are required to provide:
- Photographs of the exact location where the injury took place;
- Photographs of the injury if relevant; and
- Receipts/invoices for any medical expenses related to the incident.
If you are claiming property damage you are required to provide:
- Original receipts / invoices for the damaged property and a minimum of two independent quotes for repair/replacement of the damage; or
- If it relates to vehicle damage, please provide the relevant vehicle details i.e. registration number, driver details etc.;
- Photographs of the damaged property / vehicle;
- Copies of any expert opinions and/or any report on which you wish to rely on to support your allegation that the damage is due to negligence by Council; and
- Details of all expenses incurred and the specific amount you are seeking. You will be required to provide documentation to substantiate all amounts claimed.
It is very unlikely Council will be liable and therefore cannot pay compensation if:
- You cannot to establish the cause of the damage;
- The damage was caused by, or resulted from, a weather event - e.g. fallen trees / branch damage;
- Damage caused by defects when Council was not previously aware of the problem e.g. potholes, footpaths, tree roots etc.;
- Damage caused by a contractor acting on behalf of Council e.g. roadworks, parks maintenance etc. Such claims will be referred to the relevant contractor to respond to you directly;
- When Council is complying with its statutory duties under relevant legislation; and
- Incidents relating to the condition of pit lids or other infrastructure belonging to utility companies.