Should My Mother Pursue Legal Action after Fracturing Her Knee at a Shopping Mall?

LSumWinneBluem8 on 08/09/2018 - 00:18
Last edited 08/09/2018 - 10:12 by 1 other user

Hello Everyone,

Edit: she fell on a puddle of liquid, hence why I said there was no signage(sorry). I am going to the mall to read the incident report later today.

I don't want to waste too much of your time so I'll make it quick.

Yesterday my mother slipped while walking around a shopping mall. There was no signage saying the floor was slippery.
She went to the GP next morning to get it check and the x-ray has revealed a small fracture on her knee resulting her to wear a brace. She is seeing a specialist next week to determine how long she'd have to wear the brace for. She is self employed and runs a restaurant. She is recommended to take a week or two off.

My mother is worried that her loss of income isn't sufficient enough to ask for compensation (i.e. legal fee and the process outweigh the compensation that she might be entitled to).

I am just glad that she is not seriously injured. If he had fallen backwards, it could have been much worse.
Should my mother consider taking legal action?

Thank you for your time.

Health & Beauty

Comments

  • Melb69 on 08/09/2018 - 00:44
    +23

    I'm always cautious on these matters and put the onus on the person. Too many times people need to blame others and dont take their own responsibility. Aside from If its worth it or should you sue.

    Did she do everything to ensure her own safety like looking at where she was going? Was there water on the floor? If she had seen it she would have avoided it. Did she wear correct footwear? Shoes werent warn.

    Flooring in public spaces need correct slip rating. Its unsual for someone to just slip in normal shoes. Does that make sense. By the way this is IMO.

    • [Deactivated] on 08/09/2018 - 01:01
      -5

      Mate get real, I'm sure she did it on purpose.

      • Melb69 on 08/09/2018 - 01:08

        Well thats what does happen alot. Sue to your hearts content.

        • [Deactivated] on 08/09/2018 - 01:12
          +3

          Absolutely garbage, do you have any proof of that?

        • Melb69 on 08/09/2018 - 01:17
          +2

          @Drew22:

          Yes it does as people try to scam accidents. Im not saying it wasnt an accident. Im Just saying maybe things happen. Why should you sue the shopping centre. Enter at own risk. Take responsibility for your own actions.

        • [Deactivated] on 08/09/2018 - 01:17
          +8

          @Dedbny:

          What so the mall has absolutely zero responsibility in providing a safe environment for customers?

        • Melb69 on 08/09/2018 - 01:21
          +2

          @Drew22:
          Im saying they already do take responsibility.What do you want them to do? The floor finish is to the building code. If not then it is the shopping centres issue. But just be cautious yourself. I dont run on something or walk on something I think may be slippery.

        • [Deactivated] on 08/09/2018 - 01:39

          @Dedbny:

          How do you know that the flooring was "to the building code"?

        • Melb69 on 08/09/2018 - 02:00
          +1

          @Drew22:

          Well if you want to sue then youll find out. That is the option. It is possible that the flooring doest comply. Unlikely as not just Ops mum would have slipped on it as thousands would use that same path.

          So I gather your for suing. Its costly for what outcone. Loss of incone and medical. You need to weigh that up. Then speak to a lawyer. Thats all they can do.

        • [Deactivated] on 08/09/2018 - 02:10
          +2

          @Dedbny:

          I am for not assuming things and instantly pinning the blame onto people.

        • TheBilly on 08/09/2018 - 06:14

          @Drew22:

          I doubt its not to code. Third parties (certifiers) request sign off for slip resistance testing before giving authority to occupy the building. Depending on building age. For example maybe it was not done in a 40 year old shopping centre, but would definitely been done in the passed decade on a newer one.

    • singlemalt72 on 10/09/2018 - 13:27
      +1

      Did she do everything to ensure her own safety like looking at where she was going? Was there water on the floor? If she had seen it she would have avoided it. Did she wear correct footwear? Shoes werent warn.

      Rather irrelevant - it is the store's responsibility to ensure a safe place for customers. If there was a live wire on the ground would you ask if she were wearing insulated footwear?

      As long as she wasn't behaving negligently (parkour in the aisles) then the duty of care is upon the store - The have insurance to cover these circumstances.

  • Melb69 on 08/09/2018 - 01:13
    +20

    Further to my point. If Im walking on a path and trip on a raised bit of paving why is it the councils fault you triped over.Thats how people think. If you walked that same path without looking at your phone rather than the path. Maybe you wouldnt have a twisted ankle. Just saying. Before anyone says the Council should fix path. Get real take your own responsibility. If your good you would flag faulty path to council just to let them know, so it can be fixed. Then its more the Councils issue for not fixing the hazatd.

    • crazyboy on 10/09/2018 - 12:26

      It has happened with me 3-4 times in different locations the last 2 years. And no I was not looking at the phone. I was looking at the front and may be at the sides as a normal person would walk. It was the problem with the pavement, it was slightly raised. I try to be careful when I reach the same place but I believe these pavements should be fixed ASAP as they are safety hazard.

  • follow on 08/09/2018 - 02:40

    anecdotal but know someone who had a similar incident. they ended up with $30,000 settlement.

    • orangetrain on 09/09/2018 - 09:48
      +30

      Time to head to the mall with grandma!

      • Kangal on 09/09/2018 - 11:12
        +1

        Too late, someone's already Broden all the malls!

      • WhyAmICommenting on 09/09/2018 - 23:20

        @orangetrain negotiate with her first - 60 / 40

      • Flanders on 10/09/2018 - 08:14

        Time to head to the mall with grandma!

        Better yet, take grandpa… Bad Grandpa ;)

  • [Deactivated] on 08/09/2018 - 03:29
    +29

    at a Shopping Mall

    Was it in America?

    • idonotknowwhy on 09/09/2018 - 10:08
      -2

      I say that a lot these days as well. Non-American foreigners with poor English seem to understand that more easily than "shopping centre" for some reason.

    • FutureTech on 09/09/2018 - 10:25

      She could have got a million dollars had it be in America

  • TheBilly on 08/09/2018 - 06:10
    +3

    My mother is worried that her loss of income isn't sufficient enough to ask for compensation (i.e. legal fee and the process outweigh the compensation that she might be entitled to).

    Most lawyers will work on a cut or percentage of what you are paid out if you accurately present the facts to them upfront.

    Experience tells me insurance will only cover the personal income she draws from the business to pay herself and not actually business revenue - depending on her business structure (pty ltd). So she has possibly underpaid herself due wanting to limit PAYG to take advantage of the system, but never realised that it will catch up on a day like today.

  • Quantumcat on 08/09/2018 - 08:09
    -1

    There are plenty of lawyers who work on a no win no fee basis

    • [Deactivated] on 08/09/2018 - 12:54
      +4

      Just have to listen for the ambulance sirens. You'll find these lawyers in close pursuit.

  • WreckTangle on 08/09/2018 - 08:29
    +20

    Whats your case? To prove negligence the mall needs to actually be negligent. Why was the floor slippery - from a spill or from cleaning? Did their staff cause the spill through deliberate carelessness? Was the mall given an opportunity to fix it beforehand and refused, prior to the slip? Its how the mall contributed to negligence here, not the fact the floor was slippery- thats just one material factor in this.

    • cloudy on 08/09/2018 - 09:11
      +2

      +1

      This is the only post OP needs to respond to.

    • SumWinneBluem8 on 08/09/2018 - 10:07

      My apologies for the late reply. I forgot to add why she slipped in the first place. She said she slipped on some sort of liquid. She first thought it was oil or something. The security came over and took her detail and an incident report has been made. I should go back to the mall and ask for the report. They should have really taken photo for evidence but I personally don't think it's worth it to risk their kneecap during their late 50s.

      • Melb69 on 08/09/2018 - 11:30

        This makes a big difference. However the evidence may be sketchy now to prove as suspect all shopping centre cam footage would be deleted. As I said before it now depends on whether you think its actually going to be worth going through the process for what gain.

        • SumWinneBluem8 on 08/09/2018 - 11:38
          +2

          Thanks for the reply.
          Just went to the mall and asked for the incident report. I've met the security who helped my mother. I've asked whether she could help me confirm about the wet surface but she was hesitant to give me an answer. My mother said it was a brown liquid; something like spilt coffee or melted ice cream. I've talked to the manager and he said an incident report has been processed and have advised me to contact center management on Monday. They will hand it over to their insurance company. I'll do that and go from there. To answer you're question I don't think I'll pursue any further if the insurance company rejects the claim. Don't think it's worth going through all that process

          Thnks!

        • Melb69 on 08/09/2018 - 11:41
          +3

          @SumWinneBluem8:

          I feel for you as its dam annoying being unlucky to step in the liquid and now having an injury. Hopefully its not a long term issue. Yeah maybe you can go through insurance.

        • Flanders on 10/09/2018 - 08:27

          @SumWinneBluem8:
          Check location to see if there is any security camera there. So many cameras everywhere these days.
          If there is a camera that may havr footage, be sure to request it at least be kept, if not provided to you, or allow you and your mother to view.
          They will likely not want you to view it, but if you make a request in writing (email should be good) , that they at least keep the footage, if they then destroy footage that could support your case somewhat. If it does go court, I think you can then request the saved footage in 'dicovery' process of the case.
          The footage might show your mother not looking where she was walking ie. She might have been clearly looking at some shops signs etc across the hallway. Be good to at least go in with your mother and view together what exactly caused this. Hopefully there is a camera there.

      • Ace Ventura on 08/09/2018 - 11:45
        +6

        This is where it gets tricky.
        The onus is on your mother to prove negligence of another party. The centre management may have written an incident report, but that's an internal document, they have no requirement to give it to yourself, the same with photos, video footage etc.
        They will hold onto all that stuff incase it goes to court, but that's the only time they would be obligated to provide you a copy.

        Now as far as proving negligence.
        You would need to prove the liquid was known about previously by centre management staff and not acted on. They are not negligent for something they are unaware of.

        You also need to prove actions taken or not taken attributed to the accident. That's not so bad, if they were aware of spill but didn't put up signage, that's a related action not taken.

        You need to prove your mother took appropriate action to care for herself. This isn't too big of a stretch, as long as she wasn't staring at a phone screen or the like.

        You need to prove the risk was not unforeseeable by a reasonable person. A reasonable person would expect a slippery floor if there was signage or it was highly obvious, broken pipe gushing out water, tradies working in area, flashing neon signs etc.

        A small drip from a leaking overhead pipe building up a small puddle would be more in the unforeseeable range. This is important as part of our wrong doing act, speaks of Volenti non fit injuria. This is voluntary assumption of risk. Meaning if there is a obvious risk to something, and we partake in the activity anyway, we are doing so at our own risk. This is common law so must be addressed. In this case the activity being undertaken is as simple as walking through a shopping centre, but it is still relevant.

        There is a lot more to proving negligence, but off the top of my head that's the relevant parts.

        • SumWinneBluem8 on 08/09/2018 - 13:14

          Thank you for the comment. Really helpful. I think the insurance company will (hopefully) go through their process to determine whether the centre management is at fault or not. I've noticed security cameras around the area of the incident, so maybe the insurance company will request for footage. I won't be pursuing other legal means after this. I think it's not worth the trouble. It could be that the spill was unknown. Can't really blame them for that.

          Thanks again!

        • nith265 on 09/09/2018 - 10:12
          +2

          @SumWinneBluem8:

          They are not negligent for something they are unaware of.

          From @lowlife above – that’s not entirely true, it doesn’t cancel out and remove their liability. A shopping centre has a general duty of care to it’s user to provide a safe walking environment regardless of their specific knowledge.

          @lowlifes points are all broadly correct in illustrating how a lawyer would seek to lower they liability and increase your mother’s contributory negligence and lower theirs.

          Maybe just continue pursuing it as you’re doing. Document everything and keep records, let them know your concerns and leave it with them. You don’t need to be aggressive and call in lawyers just now (maybe) but you do need to be firm and insistent on a response if you want to pursue it all.

          While I agree with the general sentiment of lets not become USA, you’re not complaining about the pain and suffering of bruising her knee after tripping over her own shoelaces on their property – she’s fractured her knee and lost income. The shopping center wouldn’t hesitate to recover costs from your mum if she accidentally reversed her car through their windows. She has car insurance for that, they have Public Liability insurance for this.

        • LUTSlit on 10/09/2018 - 07:47

          You no nothink about lorr

    • cuteseal on 08/09/2018 - 14:58

      Agree with this.

      I was actually on jury duty last year on a case with similar circumstances.

      Woman slipped in communal toilets in a strip mall, a few business shared the toilets.
      Sued the management company and the owner of the strip mall claiming negligence.
      Very soon her case came apart - almost anyone could have come along and split some water and unless it can be shown that the facilities were unsafe, or weren't maintained in a way that directly caused the fall then it was an uphill battle.

      Was originally estimated to be a 2 week trial but she settled out of court on day 2.

      • nith265 on 09/09/2018 - 10:15
        -1

        @cuteseal

        so the plaintiff got offered a settlement?

        While a common clause of a settlement is that "this doesn’t mean we're accepting we were liable" it obviously indicates they felt they were at least partially liable

        • buckster on 09/09/2018 - 10:33
          +2

          Sometimes settling costs are less or similar to the legal fees incurred for a prolonged trial and it's just easier to be done with the issue.

          Unless you're Matthew Guy lol

  • [Deactivated] on 08/09/2018 - 12:53
    +14

    The liquid isn't a permanent feature of the shopping mall and your mother's ability to not fall isn't by design of the mall.

    Stop this ridiculous culture of suing.

    Someone spilt something. Your mom was careless and didn't look where she was stepping. She fell.

    • SumWinneBluem8 on 08/09/2018 - 13:24
      -4

      I guess I was upset that my mother injured herself which wasn't really her fault apart from not paying attention to the ground. I think there would be a general expectation that a shopping mall floor would be spill free, unless there is a sign saying so. She couldn't have been constantly looking at the ground while walking around a shopping mall. I didn't know what would be the next best process, hence why I've asked this forum. I don't think there is a culture of suing in Australia. If it does exist then I am very sheltered from it.

      • [Deactivated] on 08/09/2018 - 13:43
        +14

        couldn't have been constantly looking at the ground

        And there is an expectation there are magic gnomes with split second reaction time to spills?

        She couldn't have been constantly looking at the ground while walking around a shopping mall.

        And she could anywhere else?

        No one wants your mom to fall but it could have happened anywhere. We get it, you're upset. You're upset your mom fell. You seem to need to assign blame and that's where you're vilifying yourself.

        There may not be a culture of suing but there sure as hell is a culture of not accepting consequence.

        • SumWinneBluem8 on 08/09/2018 - 13:57
          +2

          Yepp exactly right. After reading the comments I may have been seeking vengeance/compensation but it wasn't really the centre management's fault unless the insurance company find otherwise. Good thing I've asked before angrily calling lawyers.

          Thanks!

      • lostn on 10/09/2018 - 11:50

        I think there would be a general expectation that a shopping mall floor would be spill free

        How can a public place possibly be spill free? Is there a physical force that prevents a customer from spilling their drink? Some kind of technology that detects when a drink falls from someone's hands and intercepts it, sucking it into a bucket before it hits the ground?

      • HighAndDry on 17/09/2018 - 13:28
        -1

        my mother injured herself which wasn't really her fault apart from not paying attention to the ground.

        Okay… I'm not seeing where that disagrees with tshow here.

        You've also said elsewhere that it was a puddle of brown liquid, so pretty hard to miss.

  • spacemansam on 08/09/2018 - 13:59
    +9

    Hi OP

    Sorry to hear about your mother. I totally see why you'd be upset and would consider legal action. As a physio, I've seen this happen countlees times, and unfortunately it often ends up being a long, stressful and costly process for the person injured. These extra stresses ultimately then also affect the individual's ability to progress from a physical perspective as well.

    Based on my experience, small fractures that you have described, as a general rule of thumb heal in 6 weeks (note I am not a surgeon) and generally don't warrant surgery or long-term rehab.

    My advice would still be to make a report to the shopping centre and keep any medical documents relating to your mother's case. Then after a few weeks actually reassess the financial losses made. Just remember that these shopping centres will have a lot more money and patience than you and often cases can get dragged out for years

    All the best with your mother's recovery!

    • bringbring on 09/09/2018 - 19:02
      +1

      This is a good perspective to keep in mind.

      I've also had it explained to me by a lawyer, who said if you go the 'no win no fee' route you see very little at the end of the day. You also end up repeatedly getting dragged through the experience, which in this case, doesn't appear to be too traumatic or emotional. Be appreciative for that and that there (hopefully) aren't any long term medical complications.

  • whooah1979 on 08/09/2018 - 14:40
    +1

    Grape happens.
    https://www.news.com.au/finance/business/retail/woolworths-c…

    Ms McQuillan has also been ordered to pay Woolworths’ legal costs.

    A payday could turn into a big bill.

    • WreckTangle on 09/09/2018 - 12:49

      Good article, take note OP

  • JIMB0 on 08/09/2018 - 14:58
    +3

    If I trip over a piece of driftwood at the beach who do I sue?

    • Melb69 on 08/09/2018 - 15:18
      +2

      Council.

    • AdosHouse on 08/09/2018 - 17:01
      +2

      Poseidon

    • Marcsie on 09/09/2018 - 11:23

      Yourself :)

  • elgrande on 08/09/2018 - 17:10
    +2

    You can aporoach on of the no win no fee firms for initial advice.

    It will drag out for atleast 2 years as they are required to see how the injury settles.

    It will also depend on how the liquid got there. I.e. was it a leaking roof or did a customer spill a drink. The liquid would need to be on the floor for more than 20 mins for the mall to be liable (Strong v woolies).

    If you went through with it they would most likely do surveillance.

    Most cases settle before court.

    Goodluck.

    • nith265 on 10/09/2018 - 12:37

      Wow - Strong v Woolworths. Thanks for mentioning it but now my head hurts from just reading it!

      Ms Strong's crutch slips on a greasy chip on the ground at a Big W pavement sale and suffers a serious spinal injury. Ms Strong is initially awarded $580,299

      Woolies appeals and that judgement is set aside.

      Ms Strong appeals to the High court where the highest judges in the land get to contemplate exactly how long they felt a chip has been left on the ground for.

      The 5 very honourable justices decide 4-1 after careful deliberation (and probably many expert witnesses on fast food dropping theory) that on the balance of probabilities the chip has been there for sometime and not just recently dropped during the lunchtime rush when Ms Strong had her accident (which would have gotten Woolies off the hook)

      Her initial damages are reinstated

      From the judgement:

      "reasonable care required inspection and removal of slipping hazards at intervals not greater than 20 minutes."

      https://www.cbp.com.au/insights/insights/2012/march/strong-v…

      So OP if you reckon the spillage was there for maybe 15-20mins then KA-ching (to quote the now dropped Big W slogan)

  • djkelly69 on 08/09/2018 - 19:52
    +1

    I doubt you would need to take legal action. Just advise the centre exactly what happened, and what the required treatment/damage is.

    It probably happens every day and will likely be covered by their public liabilty. Go through their process and see what happens.

  • grr1701 on 09/09/2018 - 09:53

    Little kid drops a drink. Before cleaners identify the problem and clean it up, someone slips and is injured. (Just a possible scenario.) is the shopping center at fault, the little kid, his/her parents, or is it an accident? I doubt the onus is on the shopping center to clean other people’s messes immediately. They can only do it when it’s identified. Sympathy to OP’s mum, though.

  • idonotknowwhy on 09/09/2018 - 10:10
    -1

    Hi OP, lawyer here, yes please sue the mall as it's hard for us to get work these days.

  • ankor on 09/09/2018 - 10:27

    I think it's worth having a no-win no-fee consultation with respect to your mum's rights. She must also be involved though.

    There's a lot of different factors to consider in these slip and fall cases and its not so easy compared to say, someone running into the back of your car and giving you whiplash. For this reason, it is worthwhile contacting the law society in your state and seeking a referral to a lawfirm.

    I also think googling the name of the lawfirm and also the name of your prospective legal representatives is worthwhile.
    This will assist you in keeping an eye out for people who've run afoul of the ethics unit of xyz law society in their state. You can then make a slightly more informed choice that way.

  • Xiaomi on 09/09/2018 - 11:17
    +1

    OzBargain. The place where the countries in the name and yet American terminology is commonly found in most posts

    • callum9999 on 09/09/2018 - 20:34
      +1

      It's not really "the" place. The whole of the English speaking world is using more American words.

      • Xiaomi on 10/09/2018 - 00:44
        +1

        Darn it.

        • nith265 on 10/09/2018 - 09:52

          people can use whatever term they want - we all have the right to free speech

  • paloverde88 on 09/09/2018 - 16:54

    Mom was distracted by fabulous sales and did not pay attention. Mom's eyesight is to be tested to ensure eyesight was perfect at time of incident all moms pre existing conditions will be scrutinise by experts to ensure none had contributed to the mishap.

    • Xiaomi on 10/09/2018 - 00:44
      +2

      Mum*

  • LUTSlit on 10/09/2018 - 07:52

    Why do you rookies continue to come here for legal advice.

  • ihbh on 10/09/2018 - 09:34

    Should my mother consider taking legal action?

    If this occurred at her home/your home, should your mother consider taking legal action against herself/you?

  • lostn on 10/09/2018 - 11:46
    +1

    Nothing to lose in trying. But from the POV of the mall, it's very difficult to keep on top of this. If a customer spills their drink, the cleanup staff are not going to know about it right away and put signs up. They only find out when someone points it out to them, or they themselves discover it by accident.

    So to say they were at fault for not having cleaned it or put signs up within seconds of the spill is a bit unreasonable. The person who spilled the liquid and didn't inform anyone is the bad guy here. You just can't reasonably be expected to be responsible for everyone (tens of thousands of people a day) who walks into the mall and everything they do.

    But that's not legal advice. Who knows, you may even have a case. That's just my perspective from an ethical POV. Obviously it sucks that it happened. See what the mall's management has to say, and keep all your records. If they agree to pay your medical expenses, that would be best, and you can avoid litigation which is expensive and stressful.

    • Lexan on 10/09/2018 - 12:34

      I agree. May need to check cctv footage to see when and how the liquid got there.

  • Sammyboy on 10/09/2018 - 14:04

    If there was no or inadequate signage she will will most likely get some amount of compensation. Definitely all medicals will be covered. You will need to see a solicitor and they will request for any cctv footage for you. Sometimes the company will offer you an upfront compensation amount and make you sign a waiver that you will not take any further action and you will waive them of any further liability. Usually the amount they offer is only a fraction of what you possibly could be entitled to should you go though a solicitor. Also the amount of compensation will also be determined by the percentage of disability after the injury stabilises. In this case with a fracture they will probably wait 12 months minimum at which time the knee would be said to have stabilised and they can assess if there is any permanent damage. From what I have seen, these claims will take anywhere between 12 to 24 months to be finalised.

  • ksj 007 on 10/09/2018 - 22:35

    Unfortunately this is the culture in this country. We have the 2nd highest litigation rate in the world. It's the culture of blaming others first for everything and anything, rather than taking more responsibility for your own actions and well being. We abdicate this responsibility to the government, to the council, to shopping centres, third parties, other people to provide our safety and security for us…… On the flip side, it's helping to keep lawyers very well employed and very well off.

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