Public_liability

Public Liability is part of the law of tort which focuses on civil wrongs. Appliants (the injured party) usually sues the respondent (the owner or occupier) under common law based on negligence and/or damages. Claims are usually successful when it can be shown that the owner/occupier was responsible for an injury therefore they breached their duty of care.

The duty of care is very complex but in basic terms it is the standard by which one would expected to be treated whilst they are in the care of another. An example of this is you are travelling by train, and the train derails because the wheel breaks. If you suffer an injury because of the de-railment of the train, and it can be shown poor maintenance caused the wheel to break, the owners will have breached their duty of care.

Once a breach of duty of care has been established an action brought against you in a common law court would most likely be successful. Based on the injuries and the losses of the applicant the court would award a financial compensation package.

In America, although the law is a little different many actions are brought against businesses for negligence. Sometimes these are very expensive and many businesses are forced to close as a result of this type of legal action. America is by far the most vicious country in the world for costly litigation.

In Asia the law has not developed to the same extent although the law does recognise negligence. Most professional are predicting this development to occur rapidly and within the next 10 years

In Australia the general public have become more conscious of their legal rights. In recent times businesses have been faced with more actions under common law this could be attributed to the press reporting cases where the settlements have been very high.

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 anyone of your employees to claim against your public liability policy the following example shows how an employee from another business can be presented with an option to claim one or the other.

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 solicitors now offer their first consultation for free. More recently some solicitors assess cases, and if there is a high probability of winning the case they may offer no win, no pay.

The Law and Public Liability

In the course of managing any property you are obliged to comply with laws and statutes administered by government and municipal bodies These bodies impose various liabilities which the property owner/manager should make themselves aware.

The most common examples of statute liability are in areas where you are required by law to effect insurance eg. workers compensation and motor vehicle compulsory third party.

Property, Hotel and Operations Managers should become familiar with the various types of contracts involved in commercial and retail activities. These cover a wide field but the more significant contracts are:

- the head lease or the management agreements

- tenancy and casual leasing agreements

- contracts with independent contractors for cleaning, lift and escalator maintenance, air conditioning and fire protection maintenance, etc.

The major contractual liability from an insurance viewpoint is undoubtedly found in Head Lease and Management agreements. These require the Manager or Head Lessee to fully maintain, repair and replace the property, if damaged, until expiration of the agreement or lease.

Furthermore the contracts usually require an indemnity to the Owner against liabilities imposed upon him for injuries and property damage arising out of the use, occupation or management of the property.

Every contract contains covenants imposing responsibilities on one or other of the parties. These should be carefully examined to ensure they are not unduly onerous

Degrees of Duty of Care

Owner/occupiers are required to provided a certain level of care. The duty of care is not the same for all people. It is dependent on a number of issues. To assist in establishing the duty of care required it is more clear to divide into groups the individuals who your premises and for what reasons. If we take an example of a large shopping complex the following groups of individuals would be attract different levels of care.

Invitees

These are people who by some form you have invited into your complex. This invitation can be through marketing and advertising, or it can be implied simply because you are a shopping complex or your hotel. The greatest duty of care is owed to invitees who, in the case of shopping centres and hotels, are mainly customers, contractors and sub contractors. They are there because of the invitation you extend to them. The duty of care owed to them is relatively simple.

You must take reasonable care to ensure the premises are reasonably safe. They in turn must take reasonable care for their own safety.

If however an invitee spends money for a service, i.e. forms a contract with you, your duty of care is increased. An example of this could be a games arcade where the invitee pays for a ride on a motorcycle game. If as a result of playing this game the invitee is electrocuted, you have failed in your duty of care and undoubtedly will be found to be liable.

Without trying to complicate this issue the provider of the game will also be liable and the applicant may be advised to sue this supplier. Certainly if the injured person chooses to sue you then you definitely have an action against the game supplier. It would also be expected that civil charges would be made against the game supplier.

Licensees

These are people who enter premises with the permission of the occupier but, unlike invitees, do so without any economic advantage to the occupier. They come in the hope of doing business with you or your tenants and include such people as salesmen, commercial travellers, etc. The duty of care owed to licensees are not quite as extreme as in the case of the invitees.

Trespassers

These are classified as people who intrude onto property without permission. The degree of care owed to trespassers, although slight, nevertheless exists particularly in situations where a source of danger is deliberately created or where small children are involved. An example would be where live wires where left exposed after the centre had closed . If some children entered the premises for some reason, despite that reason, if they were injured you would be liable

Types of Claims

The most common types of claims fall into a small number of categories:

- slips trips and falls, make up the majority of claims

- stress and anxiety, due to hold ups, elevator malfunction and

- falling objects ie striking against or struck by

See also

• Liability insurance

External links

This article is licensed under the GNU Free Documentation License. It uses material from Wikipedia