Claims for Compensation. PTO Approach 2. Claims the PTO may consider. Claims the PTO will not consider DECEMBER 2013
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1 Claims for Compensation PTO Approach 2 DECEMBER 2013 The approach the PTO takes to investigate and resolve complaints where a consumer claims financial compensation as a result of the act or omission of a public transport operator is outlined below. The Public Transport Ombudsman (PTO) has the power to investigate and resolve disputes between Victorian consumers and public transport operators. In handling complaints we must pursue them in a fair, reasonable, just, informal and expeditious manner having regard to the law, industry codes and good industry practice. We consider the individual circumstances of each complaint when deciding what is fair and reasonable. In general, where we consider a consumer has: wrongly suffered a loss or detriment, and it is as a result of the act or omission of an operator; we expect the operator to put the consumer in the position they would have been in had the act or omission not occurred. If this isn t practicable, then an alternative remedy may be provided by the operator. We handle complaints in an informal manner, and do not require strict proof of a claim in the same way a court or tribunal would. However, we still require that consumers provide reasonable material to support their claim (often referred to as substantiation). Claims the PTO may consider The PTO may consider the following claims for compensation: loss or detriment stemming from significantly delayed or cancelled public transport services loss or detriment following the provision of inaccurate advice damage to or loss of property in limited circumstances, personal injury, and in limited circumstances, claims from businesses for loss of profits. We may also review financial and nonfinancial loss or detriment associated with deficiencies in administrative practices; including delays, inaccurate advice, staff behaviour and failure or lack of internal processes or policies. Claims the PTO will not consider The following claims for compensation will generally not be considered by the PTO: the costs associated with the complaint claims for ongoing or future loss/costs including claims for ongoing personal injury claims for injury to feelings or pain and suffering PTO Approach to Claims for Compensation 1
2 claims more appropriately handled by another body, such as a court or tribunal due to complexity or the value of the claim claims for loss associated with a breach of privacy that are more appropriately handled by the Privacy Commissioner, or claims for punitive or exemplary damages. There is more information later in this document about why the above claims generally won t be considered by the PTO. These are not exhaustive lists of claims we will and will not consider. Each complaint will be assessed against our Charter to determine if we have jurisdiction to investigate. When we will consider investigating Complaints will be considered for investigation by the PTO where the operator: hasn t provided the consumer with an avenue for lodging a claim has denied the consumer s claim, or hasn t responded to a claim within a reasonable period of time. A note on personal injury claims Claims for costs associated with personal injury can be very complex and can involve amounts of money greater than the Ombudsman s binding decision monetary limits ($5,000 or $10,000 with consent of all parties). We will only consider claims for actual costs incurred or loss suffered and will carefully review the amount of any claim prior to investigating to ensure we are the most appropriate body to be investigating the complaint. Where appropriate, we will refer consumers to the Transport Accident Commission (TAC), as no fault compensation may be payable if the consumer was injured as a result of a transport accident involving a public transport service. A note on insurance policies Where a consumer has an insurance policy that will cover some or all of the costs associated with the loss or detriment suffered, we recommend that the claim be pursued through the insurer. Any loss or detriment not covered by the policy or any out of pocket expenses associated with the policy may be reviewed by the PTO. Disclosure of insurance payments Consumers should advise the PTO if they have made a claim with their insurance company for the loss or detriment suffered. If they are successful in having their claim paid, any payment or benefit must be disclosed to the PTO to prevent the possibility of a duplicate payout for the same claim. Without prejudice nature of our service The PTO operates on a without prejudice basis. This means that information obtained through the PTO may not be used in any subsequent court proceedings unless required by an appropriate court process. Making a claim The consumer must provide reasonable information to support their view that the operator is responsible for the loss or detriment claimed. This includes: the nature of the incident(s) dates and times of the incident(s) why they believe that the operator s act/omission caused the loss, and PTO Approach to Claims for Compensation 2
3 details of how they tried to resolve the complaint directly with the operator and whether they gave the operator a reasonable opportunity to respond. Supporting documentation for claim Consumers also need to provide the PTO with reasonable information to support their claim (substantiation). We expect consumers to provide the following information when lodging a complaint with us (or soon after): details of the incident including witness statements, diagrams and photographs if available details of the impact and degree of loss/ detriment claimed, and documentation to support the amount claimed. This may include receipts, quotes for repair / replacement, photographs or medical records. We require that claims from businesses for loss of profits be fully supported through the provision of: o bank statements, profit/loss statements, sales journals, cashbooks or receipts o receipts or invoices for claims for reimbursement of expenses incurred in reducing or mitigating losses, and o where relevant and appropriate, a profit and loss assessment for the period from an accountant or book keeper. The costs of supporting a claim Generally, we expect the reasonable costs associated with obtaining information to support a monetary claim to be initially borne by the consumer. Depending on the individual circumstances of the complaint, we may consider that these costs should form part of the consumer s overall claim. Consumers should discuss the need to obtain reports that cost more than a minimal fee with our office prior to obtaining them, as: if the circumstances warrant it, we may obtain our own expert advice to assist the resolution of a complaint, or the reports may be unnecessary if we are unable to determine that the operator is liable for the loss or damage, or where we do not consider that the consumer took reasonable steps to reduce the loss or detriment. Amount of the Claim We will review the amount of the claim, to ensure it is an accurate reflection of the loss or detriment suffered. We have regard to: the actual loss/detriment suffered any amounts that should be excluded from the claim, such as: o future loss, the costs associated with lodging the complaint, insurance claims already paid or any rebates received (for example Medicare rebates). whether the consumer can be placed back in the position they would have been in without the payment of compensation any non-financial detriment suffered, including inconvenience caused during the internal complaint handling process, and where relevant, the current market value of property lost or damaged. The consumer will be advised of the Ombudsman s binding decision monetary limits, as soon as possible, so an informed decision about where to pursue the claim can be made through the PTO or through an alternative avenue, such as a court or tribunal. PTO Approach to Claims for Compensation 3
4 If a claim does or is likely to exceed these monetary limits, the PTO will review whether it is the most appropriate body to investigate the issue and may decline to investigate the claim. Steps taken to reduce loss We expect consumers to take reasonable steps to minimise or mitigate their losses and will take into account whether they were partly or wholly responsible for the loss or detriment claimed. Where we consider that the consumer did not take reasonable steps to reduce their loss or detriment, a claim for compensation may be reduced in recognition that some or all of the loss or detriment suffered could have been avoided. For Example A consumer takes a large duffle bag on an escalator when exiting a station. The consumer places the bag on the steps of the escalator rather than carrying it. The strap gets caught and the bag is damaged beyond repair. The consumer claims that the operator is responsible for the damage. She is claiming $125 for the replacement cost of the bag. The PTO will consider the question of liability in addition to the question of whether any claim should be reduced as the consumer did not take reasonable steps to reduce the likelihood of damage by carrying the bag rather than placing it on the escalator. What the PTO expects of operators The PTO expects operators to openly and genuinely consider all claims for compensation. When first responding to consumer claims, operators should provide consumers with: helpful information about how to lodge a claim details about the information the operator needs to investigate the claim and why the information is necessary, and information about how the claims process works and relevant timeframes for when a response to the claim will be provided. If a claim is rejected (either in part or completely), operators should provide information about why the claim was rejected and how the consumer can have the decision reviewed, including contact information about the PTO. When responding to a PTO investigation, we expect operators to provide all of the information we have requested, and work constructively with our office to reach a fair and reasonable resolution to the complaint. The PTO S Investigation We will consider all of the information provided by the consumer and the operator in assessing the merits of the complaint. This will include investigating: the link between the operator s act or omission and the loss claimed, including whether any laws /codes exempt or limit the operator from liability whether the consumer took reasonable steps to reduce the loss, and whether we have been provided with sufficient information to support the amount of the claim. We will also review the handling of the complaint by the operator prior to lodgement with the PTO and during our investigation. If we consider that the payment of compensation is a fair and reasonable PTO Approach to Claims for Compensation 4
5 outcome we will discuss this with both parties. In some instances, we may consider that other resolution options should be provided, either in conjunction with a compensation payment or instead of a payment. These options may include one or more of the following: provision of a detailed explanation an apology a commitment to review an internal process or policy improvement to, or the creation of internal policies/procedures, or the provision of a goodwill gesture to supplement the compensation payment or instead of the compensation payment. What if we can t resolve the complaint? We aim to resolve complaints by agreement. Sometimes this isn t possible when investigating claims for compensation. Where a complaint can t be resolved by agreement, and the consumer wants to pursue it, we will review the investigation and may decide that: we are unable to determine liability for the loss claimed and that no further investigation is warranted a fair and reasonable offer has been made by the operator and no further investigation is warranted the nature of the claim is more appropriately handled by another body, such as a court or tribunal, or the claim has merit and the Ombudsman will make a binding decision to resolve the complaint. We will provide the consumer and operator with the opportunity to respond prior to making a decision and will provide reasons for our decisions. More information about claims the PTO won t consider Outlined below is more information about why certain claims for compensation will generally not be considered by the PTO: Costs associated with the complaint Our services are free for consumers to use and we expect the active participation in the investigation and resolution of complaints by all parties. We expect that consumers will bear some expenses and inconvenience when making a complaint, including but not limited to; postage costs, writing paper/ envelopes telephone calls, and a reasonable amount of time spent in participating in the investigation and resolution of a complaint. We do not consider the time spent by an individual dealing with a complaint equivalent to standard income as income loss (e.g. 2 hours at $30 per hour). For Example A consumer claims $35 for a taxi fare after a train service was cancelled and replacement buses failed to arrive. He also claims $60 for the time spent lodging the complaint with the operator and the PTO, calculated at $30 per hour. We would consider the claim for $35, but not the claim for $60. We would review the handling of the complaint to assess any deficiencies in the operator s administrative practices or poor customer service that need to be addressed. PTO Approach to Claims for Compensation 5
6 Ongoing and future loss /costs To ensure that the complaint can be investigated and resolved effectively, we must consider whether we are the appropriate body to handle the issue. Complaints about future or ongoing loss or medical costs involve complex legal issues and generally involve claims for amounts of money outside the Ombudsman s binding decision monetary limits. Claims for future or ongoing loss or medical costs, will not be investigated by our office as they require specialist knowledge and resources and are more appropriately dealt with by a court or tribunal. Consumers should contact a community legal service or private lawyer if they want to pursue a claim of this type. Breach of privacy We will not investigate monetary claims based on breaches of privacy where it appears that the matter is more appropriately dealt with by the Office of the Privacy Commissioner. Where a consumer raises concerns with us about a breach of privacy as a side effect of a deficiency in an administrative practice or poor customer service, we will take into account any inconvenience suffered by a consumer. Punitive/ exemplary damages We do not award payments of a punitive/ exemplary nature i.e. payments sought with the intention of punishing the operator or acting as a deterrent. Claims for injury to feelings We do not award compensation for claims for injuries to a consumer s psychological or emotional state. This includes claims for trauma, distress, pain and suffering, humiliation, and loss of reputation. Consumers are advised to contact a community legal service or private lawyer if they want to pursue claims of this nature. We may consider secondary concerns about inconvenience suffered as a result of the above issues, poor customer service or complaint handling. The operator will be asked to respond to any inconvenience caused and to provide suitable resolution options for this aspect of the complaint. For Example Where a consumer is seeking $500 for distress, in addition to $1,000 for damage caused to their personal property, the PTO will consider the claim for damage but not the additional claim for $500. We will review the inconvenience caused to the consumer by the operator s act or omission, the level of service provided by the operator and the way in which it handled the complaint. Where warranted, we may consider that it is fair and reasonable that the operator should provide a monetary payment (goodwill gesture) in recognition of the inconvenience or level of service provided. Payments of a punitive/exemplary nature can be made by the courts. If a consumer wants to pursue an award of a punitive/exemplary nature they should contact a community legal service or private lawyer. PTO Approach to Claims for Compensation 6
7 Useful Contact Details If you are want to make a claim for compensation, please raise it with the relevant transport operator first. You can do this by contacting Public Transport Victoria (PTV): Need more information? If you need more information about the PTO s role, how we approach claims for compensation and whether we can assist you, please contact us. Freecall Transport Operators Operator websites provide more information about operator claim processes and how to make a complaint. You can find links to the websites of PTV and other transport operators at Transport Accident Commission (TAC) You can obtain more information about the TAC, its role and edibility criteria for compensation at Phone: (local call) (toll-free outside the Melbourne metropolitan area) Community Legal Centres/Lawyers If your claim is outside our jurisdiction, or you want independent legal advice about your claim, you can obtain contact details of community legal centres and lawyers in your area: Federation of Community Legal Centres (Victoria) Law Institute of Victoria PTO Approach to Claims for Compensation 7
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