We recently had occasion to act on behalf of a middle aged woman who was living in rented accommodation in the Southern Highlands area of New South Wales.
Ms X had previously complained to the real estate agent about the faulty state of repairs in relation to the external wooden stairs and other problems in the premises which required repair and rectification.
Notwithstanding our client’s complaints, the real estate agents either failed to advise the owner of the problem or if they did the owner failed to act in a prompt manner to ensure that repairs were carried out.
Needless to say, several months later our client was walking out the back stairs to take some laundry down slipped as the particular step itself gave way and tilted resulting in her falling and sustaining significant injury.
Ms X contacted our office and provided us with instructions as to how she sustained an injury.
The critical point in our investigations of the matter and in determining whether we could advise Ms X as to whether the claim will be successful was the issue relating to:-
1. How often she had complained about the fault nature of the steps and the external stairs.
2. Were her complaints in writing or orally.
3. Who did she complain to.
4. What previous complaints were made to the landlord re: the stairs or any other part of the house prior to her taking on the Lease.
It was our view that based on her instructions and the fact that she had complained on a number of occasions that there was a reasonable chance of the claim succeeding.
We obtained our client’s instructions and commenced our investigations.
Correspondence was forwarded to the real estate agent and enquiries were made in ascertaining a copy of the Lease.
With all rented premises there is always a Lease that is entered into with the agent on behalf of the landlord and the proposed tenant. The Lease will show the state of repairs of the premises and usually every 6 months there is an inspection report. This information was useful in determining the failure of the real estate agent and/or landlord to carry out effective repairs in a timely manner.
We obtained copies of our client’s clinical records and hospital records to show the extent of the injury and subsequently qualified an independent medical specialist at no cost to our client. In accordance with our no-win/no-fee policy, our client was not asked to pay for any costs or disbursements up front.
In due course we organised a conference for our client to see one of our experienced Barristers. We commenced proceedings and issued Subpoenas to the landlord and the real estate agent to produce documents. A critical part of the investigation was to ensure that we were able to show that the complaints had been made and that the real estate agent and landlord failed to act in a proper manner. In fact, the evidence showed that they did qualify a carpenter to carry out repairs several months later but even those repairs weren’t to the actual area which was the subject of the complaint.
We were fortunate also to have statements from former tenants who had complained about the same problem and also previous employees of the real estate agent who also confirmed complaints had been made. Armed with this evidence it was clear that the insurance companies acting on behalf of the Real Estate Agent and the landlord were potentially faced with a real risk.
In all public liability claims it is of the utmost importance to be able to provide evidence to show what negligence can be attributable to the proposed Defendant.
As we keep saying to our clients it’s not because you sustain an injury that you can seek to claim compensation. I in turn had advised this client like all other clients that it is important to show that the proposed Defendant whether it is the landlord, the tenant or a shopkeeper or the manager of a shopping centre, that they had a duty to look after the safety of the tenant or the shopper and that they failed in so me way. It is not enough to show that you sustained an injury and therefore because of the injury you are entitled to compensation. That is not the test in these matters. We must show that someone was at fault.
In this particular case we had sufficient evidence to show that there were reasonable prospects of succeeding in a claim for compensation as against the owner of the house and/or the real estate agent.
After having commenced proceedings, the Defendants organised independent medical assessments and the parties agreed to attend an informal settlement conference. At that settlement conference we were able to negotiate strongly on behalf of our client to show the faults and weaknesses in the case on behalf of the Defendant and the insurers.
Finally, the Defendants filed it and agreed to settle for a significant amount in terms of compensation.
Ms X was extremely happy with the result notwithstanding that all along both Defendants and in particular, their insurance companies vigorously denied that they were at fault. They also argued that if the matter proceeded to Hearing that a Judge would not find in favour of our client.
Gerard Malouf & Partners are experienced litigators and by virtue of our vigorous submissions to both the sets of Solicitors acting on behalf of the insurance companies, they could see that we meant business and we weren’t going to be bluffed by their threats.
After lengthy negotiations that panned out over a period of a whole day at the settlement conference, the matter was finally resolved and settled on a favourable basis for our client.
It just goes to show that sometimes you have to be forceful with insurance companies and show them that their client that is, their insured was in fact at fault.
The main point that comes out of this is that it is of the utmost importance to show that there is negligence and as a result of that negligence whether it is a negligent act or a failure to carry out repairs as was in this case, someone sustained an injury.
It is in such cases that Gerard Malouf & Partners continue to excel in hoping those victims of injuries who would not otherwise normally have any recourse to seek legal representation. Our client lived in a remote part of New South Wales. Access to specialised legal advice and representation was not readily available. More importantly, she could not afford to pay costs and was greatly assisted by the fact that Gerard Malouf & Partners operates in accordance with its no-win/no-fee policy.
The final outcome and result meant that our client did not have to pay anything out of her pocket and was in fact properly compensated for the injuries she sustained.
Should you or any relative be in need of such legal assistance or require expertise representation in a compensation injury type claim, please do not hesitate to contact Gerard Malouf & Partners at 1800 004 878 or email Vrege (Reg) Kolokossian or Gerard Malouf on vrege@gmp.net.au or gerard@gmp.net.au.
