Protect against public liability claims

Our Government Insurance and Risk lawyers have prepared a quick guide to public liability risk management for government officers.

Assistant Crown Solicitor Lara Rega and Senior Principal Lawyer Jan Mills recommend the following steps as a general guide to your risk management strategies:

1. Identify risk

This is the process of systematically and realistically evaluating the true level of risk before a problem or disaster happens. Environmental scanning is useful in this process to identify the type and source of risk (e.g. procedural), as well as evaluating the magnitude or consequences of that risk. Consider what can go wrong, the likelihood of it going wrong and who would be harmed (including financial costs), and identify what your agency fundamentally depends on to continue operations.

2. Risk treatment

A risk treatment plan will establish how your agency intends to respond to potential risks through, for example, developing strategies and implementing relevant procedures. Four options to be considered are:

  • risk avoidance – simply not conducting the action/service with which the risk has been identified
  • transferring the risk – examples include shifting risk through contracts, insurance and waivers
  • risk mitigation – apply appropriate techniques to reduce the likelihood of the risk occurring through, for example, quality control, audits, legislative compliance, staff training, regular maintenance and reviews or procedural changes
  • accepting the risk – an informed decision, if the risk cannot be avoided, transferred or reduced, to accept the risk. This still requires planning to manage and fund the consequences of that risk if it does occur.

3. Risk monitoring

Regularly review your agency’s risk management process, as well as the potential risks. There is merit in these reviews being conducted by an independent party from time to time.

4. Communication and consultation

Establish a common understanding in your agency of all aspects of risk. The nature of identified risks will determine the appropriate consultation process. Involve all levels of staff and clearly communicate relevant information in a timely manner to support positive outcomes and compliance. It is important to ensure all staff understand your agency’s risk strategy, the risk priorities and areas of responsibility. Be open to feedback.

Lara said that although it was difficult to predict every instance in which a public liability claim could be made, careful safety precautions along with the consideration and understanding of safety and risk management may reduce the likelihood of claims.

“Simple and often free acts of assessing your property risks and any unsafe habits will help you identify safety areas needing improvement and subsequently reduce a potential public liability claim,” she said.

“Correcting these hazards and making sure that safety precautions are in place and adhered to will help ensure the safety of those who visit your premises and decrease the chances of accidents occurring and personal injuries claims arising.

“While there is no guide on how to avoid every type of claim that you may receive, you can certainly protect your business against the majority of claims.”

Lara said that given these types of claims may only come to light months or even years after an incident takes place, it was imperative in defending these claims to have documents to show what actions were taken to prevent the injury occurring in the first place.

“Evaluation of risks and risk management processes that are in place go a long way to showing that you have considered the risk and taken reasonable action, which is the legal test that is applied by our courts,” she said.

The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.

Published: 1 August 2012

Author: Lara Rega