The best defence? Mitigation and good record keeping

Risk Matters - Summer 2022 / 23

LGIS receives approximately 1,300 claims on average each year; for the past five years, of those the vast majority are common law claims.

Of the common law claims across all portfolios we generally deny 89% and settle 11%. Unfortunately many claims are settled because of a lack of documented evidence, or record keeping. Whether it’s making sure that evidence is immediately gathered and preserved when an incident occurs or because records haven’t been kept on decision. Let’s take a look at the claims process and what LGIS members can do to make sure that we achieve the best outcome for them and the Scheme. 

Act quickly

Timing is everything when a common law claim is lodged. Various departments across the local government organisation will need to work together to investigate the claim and find documents. LGIS members who have well established processes, procedures and systems to document complaints, assessments, actions and rationale for decisions are well positioned to successfully defend a claim.

Understanding the claim process

1. Acknowledge and document the claim

As soon as you receive a claim, acknowledge it. It’s important to note that maintaining a record of the correspondence is crucial as it helps in defending a claim. Never ignore the correspondence, always acknowledge receipt, however never make any offers or accept liability without consulting the LGIS team. 

2. Notify the LGIS team

Following the acknowledgement, notify LGIS about the claim. Make sure you tell us if you have a defence or think someone else might be at fault. 

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3. Investigation of the claim

If LGIS decides to investigate a claim, it will appoint either a law firm or an independent investigator to do so. You will be contacted by the lawyer or their appointed investigator to collect evidence – the best results occur when they are provided with direct access to all paperwork and the people involved. Don’t withhold any information or partially disclose it as it may affect your case in defending a claim. It’s important to note that any evidence collected or anything you tell to your lawyer (or appointed investigator) is protected by legal privilege.

4. Decision time – deny, accept, or settle?

Whether a claim needs defence or demands settlement, the decision depends on the evidence provided. Witnesses and memory can’t always be relied upon, so systems and documentation and are often one of the strongest elements in defence of a claim.

What’s legal privilege?

Legal professional privilege is a rule of law that protects the confidentiality of communications made between a lawyer and their client. The privilege belongs to the client and may only be waived by the client. Legal privilege protects LGIS members when giving evidence to their lawyers, anything you tell them will be kept in confidence.

What are the risks associated with defending a claim?

There are a number of common scenarios that the LGIS claims team sees time again which weakens members defence. 

1. Risk audits not actioned 

Risk control audits are one of the best measures to mitigate risks associated with local government facilities like aquatic centres, playgrounds, youth precincts, libraries and recreational areas. However, just getting an audit done is not enough; members should act on the audit’s recommendations.

Importantly any decisions should be documented – especially if there’s a decision not to implement a recommendation, make sure your reasoning is explained. 

2. Processes not followed

Make sure that your processes and procedures are understood and followed by all staff. Consider a case where a complaint is made but not transferred to the relevant department. If a proper communication channel is not established, there are chances for the claimant to get an upper hand in the case. 

3. Lack of proper documentation to prove your position

Make sure that decisions are recoded. For example, the local government decides not to action all aquatic facility audit recommendations but the reasoning (budgetary constraints) is not documented. Without documentation the local government may be viewed as negligent because they have not acted on a known risk.

Another important element of documentation, particularly with audits and inspections, is before and after pictures. Make sure that photographs are taken and recorded after every inspection, or for that matter, after an incident. 

Ensuring a proper record of every inspection, be it small or big can be helpful while producing an evidence for a claim. Every record can assist in demonstrating reasonable actions aimed at meeting the local governments’ duty of care in the management of public assets.

4. Unavailability of documents when needed

Unfortunately some cases can go on for months and even years. In these circumstances it becomes important to retain documents for a long period of time. Another factor is change of staff at local governments. To keep new staff updated about ongoing claims, saved documents can be a great reference point.

5. Claims can be made years after the incident

By the time a claim is made, witness memories usually fade as cases go on for long period of time. In this scenario documentation is vital. 

Case Study 1: Pool stairs cause slip (or was it something else?)

The incident

A 35-year-old woman injured herself whilst descending a set of steps at a leisure centre in May 2019. The facility, which included a public swimming pool, was owned and operated by one of our members. The claimant suffered a mild injury on her lower back. She alleged that her fall on the step was caused by the steps being slippery and this happened as a result of member’s negligence.


The surface of the stairs at the facility was installed in 2014 and it was a non-slip fibreglass compound. Moreover, the surface of all the steps at the leisure centre is re-coated every year in the month of July when the centre is closed for maintenance.

The claim

LGIS was informed about the claim and investigated the matter to find out whether the City was liable. 

Key findings:

  • There was proper documentation to prove that the steps had been installed with non-slip coating in 2014.
  • There was evidence that the stairs are resurfaced every year as part of their maintenance plan.
  • Further, there was evidence to support that the claimant tripped over the thongs she was wearing rather than ‘slipping’ on the stairs.

The outcome

Based on the LGIS investigation report, it was confirmed that the steps were up to Australian standard and had no design flaws. Through proper documentation made available by our member, LGIS was able to establish that the stairs’ surface was made using non-slippery material and is resurfaced every year. The member was not liable for the claimant’s injury. Therefore, the claim was successfully denied on behalf of the member.

Lessons from this case

The defence in this case was strong as our member had well documented proof of the installation and maintenance of the concerned area. Local governments should note that it is extremely important to retain documents showing any upgrades and regular maintenance of their asset in case of a claim.

Case Study 2 – Playground injury

The incident

In June 2019 a young child was injured at a playground adjacent to a sporting complex maintained by one of our members. The child was playing on an in-ground trampoline and their foot was caught in the gap between the trampoline mat and the surrounding frame/soft fall material. As a result, the child suffered a broken leg. The child’s mother made a claim against the Town alleging that the incident occurred owing to the local government’s negligence towards ensuring the trampoline was compliant with required Australian standards.


The Town had engaged independent contractors to design and construct the playground, which was completed in 2017. In addition, the member had engaged another independent contractor to install the play equipment at the playground.  

The playground underwent regular safety checks and maintenance as part of their risk management process and found the following:

  • Prior to the handover of playground to the local government, the independent contractor had tested all the play equipment, including the trampoline, and had issued compliance certificates confirming that the trampoline was compliant with relevant Australian standards. 
  • The playground, including the play equipment (particularly the trampoline in this case) is inspected by an independent contractor every three months before all school holidays. The contractor checks for any defects, potential hazards or safety concerns
  • These inspections were documented at every step and even before the child’s incident. The inspections found no safety concerns associated with the trampoline.

The claim

The injured child’s mother made a claim against the local government alleging the incident happened because the Town was negligent towards its residents as it failed to ensure that the trampoline was compliant with required Australian standards. The claimant (mother of the child) also provided alternatives to the current design of the trampoline which, in her view, would have been ‘safer’.

Our team assessed the claim keeping in mind varied factors involved in a playground. We know that playgrounds in general have a risk versus reward environment. A playground should offer a risk environment for kids to learn and grow, as well as ensure that children remain safe from any sort of serious harm.

LGIS report findings:

  • The member had the relevant documents to prove the trampoline was, at the time of construction, compliant with relevant Australian standards.
  • The trampoline, along with all the other playground equipment, was inspected regularly for any defects, potential hazards or safety concerns by an independent contractor with relevant skills and expertise in carrying out such inspections.
  • The previous inspections of the playground did not raise or identify any safety concerns with the trampoline.
  • The Town had acted reasonably in design, construction and maintenance of the playground and the trampoline (there were relevant documents to support this). Simply put, just because a piece of equipment could be made safer does not mean it is unsafe in the first instance.
  • The incident was due to the inherent risks involved in using a playground, which is part of the very nature of risky play in order to challenge children and deliver development opportunities.

The outcome

LGIS investigated the incident and obtained all the necessary information and documentation from the local government involved and found that the installation and maintenance of the trampoline was up to standard. Therefore, LGIS denied the claim as the member had not been negligent.

Lessons from this case

It is extremely important for members to ensure and document:

  • That playgrounds are constructed or upgraded according to the relevant standards at the time.
  • Playgrounds are regularly inspected to ensure they continue to comply with applicable standards and do not require maintenance or repair.

Case study 3: Claimant hits ‘rocky bottom’ – was the shire negligent?

The incident

The claimant, a regional local government employee, suffered an injury in his left wrist while drilling a hole with a post-hole digger (also known as auger) in September 2018. It is important to note here that the claimant was left hand dominant. The medical case was complicated by multiple surgeries including wrist fusion surgery with the claimant subsequently alleging Complex Regional Pain Syndrome (CRPS). He was deemed unfit to resume on his pre-injury role and therefore, alleged that the Shire was negligent and did not perform its duty of care.


  • Engineering and ergonomic experts were consulted in this case and evidence was obtained both by the claimant and local government in relation to the auger and the system of work.
  • The claimant reported to his expert that he pushed down on the auger whilst operating it.  This was contrary to the operating instructions to not push down on the auger.
  • It was suggested that no formal training had been provided and that the claimant had not read the operation manual.
  • The Shire’s expert acknowledged that if the claimant was pushing down on the auger, this would have given rise to the mechanism of injury, given the claimant’s arms would have been stiff and not in a position to react to the sudden torsion of the auger.
  • The claimant alleged that he was required to dig 37 holes using the auger. Both experts agreed that if 37 holes were required
    to be drilled, then a vehicle mounted auger should have been used in order to minimise the risk of injury.  
  •  Experts from both sides agreed that if he was pushing down on the auger for all 37 holes then the risk of injury was high.

The claim

The claimant is a plant operator/general hand who claimed workers’ compensation and common law damages against a regional local government. He claimed for a left wrist injury when using an auger.  The injury occurred when the claimant used a handheld auger to drill holes to. He alleged that when drilling into rocky soil on the shoulder of the road, the auger caught on a rock or a root, which caused it to recoil, injuring his wrist. 

The outcome

As a result of his injury, it was not possible to rehabilitate the claimant back to his pre-injury role or any alternative role. He obtained evidence of a whole person impairment to enable him to commence a court action for common law damages. He also obtained expert evidence in support of his claim in negligence, and the matter was settled prior to trial for a substantial sum.

Lessons from this case

  • Members must ensure that employees receive adequate training on safe operation of all equipment, in this case the auger, and the training records are maintained.
  • A risk analysis of tasks involving equipment (in this case an auger) should be done, and controls should be carefully considered. In this case it should have been asked if a vehicle mounted auger would be more appropriate due to the number of holes required to be drilled, and/ or the soil in which the holes are being drilled.
  • The use of handheld augers should be restricted to incidental “one-off” tasks rather than larger tasks involving the repeated digging of holes.

Key takeaways:

  • Risk management – it is imperative that local governments focus on putting systems in place to ensure risks are identified appropriately.
  • Document wherever possible. Saving records like audit reports, inspection records, incident reports, risk registers and third party contracts for at least seven years can be helpful if a claim
    is made much later after the incident happened.
  • Take photos after every incident, regardless of a claim been made or not.
  • Risk audits and inspections should not be treated as any other box ticked. Closing out suggested actions and recording every step during the process is recommended. 

If you need more information on risk management, please contact our LGIS risk team or if you wish to know more about the claims process, get in touch with our claims team. 

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