QLD Do I Have a Personal Injury Case Against the Council?

[Rod]

Have you considered using mediation, concillation or arbitration instead of court?

In Victoria the state Government, and by implication Councils, are supposed to act as 'model litigants' and therefore, in theory anyway, should look at and explore alternatives to court: Dispute resolution centres | Your rights, crime and the law | Queensland Government

It is worth at least a phone call to check out this option.

 

[Clancy]

Also check with nearby residents/businesses if they have complained about that problem and nothing was done. That always adds allot of weight. You might even be able to subpoena such information from council?

 

[John Etherington]

Wondering if I have a personal injury case against the local council after sustaining an injury to my knee.

I was out walking and stumbled over the upraised lip of a concrete slab of footpath. The cartilage was split and I was unable to work following surgery for 3 months.

Is my case likely to succeed, given that the council could reasonably be expected to know the state of their assets and likely risks to pedestrians? Not sure if the council employs an arborist to audit the effects tree roots are having on footpath slabs and so on.

I reported the issue to council a few days later, and they firstly smoothed the slab with bitumen, to limit the likelihood of another person tripping. Then a couple of weeks later, the whole footpath was torn up and replaced by gravel.

I took a photo of the slab the day I reported it, and sent it to council, so they could do something to prevent injury to others. At that time, I had no idea I would be heading for surgery myself over it. Thought the knee would settle down, but it was never going to with the internal injury sustained.

Is a solicitor/lawyer likely to take on such a case on a no win no fee basis?

Second scenario...

Is it a good thing to represent myself, if no lawyer is interested?

I am aware that there could be a view that I should have kept my eyes open, but the particular slab was not obvious to me, else I would not have tripped on it. No one looks at the ground and watches every single step they take.

I have ongoing (pain) issues with the knee after 7 months, and am considerably out of pocket for wages and medical expenses.

Is this something I can succeed with? We are a single income family, and this loss of income has hurt us badly.

I’m not a lawyer but I know this quite well as I have close ties to positions in council related to this. You need to establish actual knowledge which is that the person who is in a position to to fix the problem actually knew that the problem/hazard was there.

It won’t be easy but you could potentially have a claim if you can find evidence.

 

[larrylarry]

I’m not a lawyer but I know this quite well as I have close ties to positions in council related to this. You need to establish actual knowledge which is that the person who is in a position to to fix the problem actually knew that the problem/hazard was there.

It won’t be easy but you could potentially have a claim if you can find evidence.

In NSW, North Sydney Council v Roman (2007) 69 NSWLR 240 is the leading authority on actual knowledge within the context of s45 of the Civil Liability Act 2002. I am not sure if there is similar legislation in Qld but it wouldn't be difficult to look it up.

As a result of the Roman case, many cases against Council will prove difficult.

 

[Rasoir]

Thank you very much for the recent replies.

My claim has proceeded to the point that I have found a PI Lawyer willing to take my case on a no-win no-fee basis.

That has occurred because I have a friend who has a family with skin in the game. I am very grateful that I have been afforded this kind of assistance.

Cannot reveal the evidence that we have uncovered on the forum because it may prejudice my case if it prematurely gets into the wrong hands.

There are also the occasional precedents that bob up that have been useful. We will be going to the compulsory conference in due course to make our case.

Will report the outcome in due course - no timeline available as to when that may be just yet, but I will not forget to report.

I do know that my experience may be helpful to others in need as well, so will keep in touch.

To J E:

Have been able to find holes in the council's statements.

Fortunately, in the photos I took, there are painted marks on the protruding slab.
That has to be providence at work.

These were placed there by the council, and they logged the dates they inspected that footpath.

Fortunately, also, the dates preceded the date on which I sustained the injury.

They had taken no action for about 2 months after their inspectors noted the risk.

Clearly they were aware of the risk.

There are other anomalies which can be brought to bear but will disclose after the case.

 

[larrylarry]

Well done. All the best!

 

[Rasoir]

Hi Rod

It's been a long 3 years and 4 months.

Two compulsory conferences.

Evidence provided by council showed what looked like a log book filled in retrospectively to cover their butts.

And a Statutory Declaration that any judge would not use for a paper aeroplane.

Incorrect estimation of height of the hazard - an expert engineer expert on these estimations said it was almost three times higher than the employee stated.

Fortunately, I had photographs.

There was enough dodgy "evidence" supplied by the council to force the insurer to negotiate properly on the second round of negotiations.

End result?

I did a little better than I would have, had council simply paid what I requested [lost income and costs of surgery] with no other initial claims.

I'd have settled for a decent offer - even if below the initial asking price of settlement.

In the end, the settlement was double what I was asking.

My lawyer operates on no-win-no fee as stated earlier, and I feel justice has been served here, with a little extra for the many, many hours of hard work and research I did prior to handing the whole thing over the lawyer. Most of it may have been redundant, as far as my lawyer would have found useful. But there was enough good stuff in the mix that I have recorded and investigated, to make the casework pursuing.

It just so happens that I accidentally ended up with Queensland's best private no-win no-fee PI Lawyer, through a good friend, whose son-in-law is also a top Sydney PI Lawyer.

Had I not persisted, I'd have walked with nothing.

My lawyer was professional at every turn and honest from day one about costs, likely outcomes etc.
Not going to court possibly saved me some need to cover costs, depending on the way the judge saw the facts on the day.

But in the end, it came down to good law practice - evidence and knowledge.

Thank you for your help and support. It encouraged me to persist, and all of your impartial advice did help me see through the fog in front of any layperson's eyes in this situation.

 

[Rod]

Congrats, pleased it worked out well, and thanks for the feedback.

 

[Rasoir]

Congrats, pleased it worked out well, and thanks for the feedback.

Thanks Rod.
After going through this process I can see how easily people would simply despair and give up.

For a start, I didn't have the money to take this to court and risk $50,000 or more on losing.
In another scenario, had I been awarded less than a certain figure, I'd have been responsible for a portion of the other parties' costs, on a sliding scale.

This hasn't changed my mind about justice going to those with the means to pursue it.
Five out of the five legal firms who advertised 'no-win-no-fee' would not entertain the case.
I didn't qualify for legal aid because I was, and am still working, and I doubt they'd have picked it up either.

It was simply serendipity that I found someone who would help.
Through their misfortune, and family connections, I found a helping hand for my own situation.

The experience has left me with a feeling that there are many thousands of people in our communities who are denied justice because they can't afford the price of seeking redress. There are some who do not qualify for legal aid, and there are some who do qualify, but legal aid is too stretched to be able to take on their cases. And then there are people like me - I would think a majority - who just have to take it on the chin and suffer the losses, because of the costs of justice.

This reminded me of what you said earlier - 12th January 2017:
"Situations like yours are one reason I've gone back to uni after a few decades to study law."
" I'd like to help people sort out their legal problems in a way that they can afford. I'd like to contribute something back to our great country and its people before I leave this world. We may have our problems, but most of us have helped in one way or another make this one of the best places on our planet to live our lives."

Because of your own raison d'être I promised you feedback on how our brief interaction has helped me and encouraged me to seek professional counsel. And in turn I hope you are encouraged that people like me are so immensely grateful that there are still people like you in our communities, who seek to give back and to serve in whatever way possible.

Thank you doesn't seem enough, Rod, but in return I will just say that out of respect for the opportunity I have had, I will continue to work towards the same ends, pay it forward and seek to lift others up wherever and whenever I can.