Apart from motor vehicle accidents and work injuries, the Civil Liability Act 2002 governs negligence claims in NSW. Negligence is a principle originally established in common law, but now modified and enshrined in legislation. Essentially, negligence arises when a person does not exercise ‘reasonable care and skill’ whilst conducting their duty of care obligations.
It sounds simple, but what are one’s duty of care obligations and what constitutes ‘reasonable care and skill’?
There are specific elements that a plaintiff (the injured party) must prove in order to make a negligence claim. These are duty of care, breach and causation. If a plaintiff successfully proves these three elements, then the final part of a negligence claim involves damages. Let’s take a look at each of these elements in closer detail.
Duty of care
A plaintiff must first prove that ‘a duty of care existed between the plaintiff and the negligent entity.
A duty of care is a legal duty to take reasonable care. A duty of care does not necessarily always exist and if it does, the scope of the duty usually depends on the relationship between the parties. The list of relationships is not exhaustive, and the decision on whether a duty of care exists is decided on a case by case basis.
A duty of care usually involves care not to bring harm to others through your actions or inactions. For example, a driver owes a duty of care to other road users and pedestrians, while a teacher owes a duty of care to students under their supervision. Other relationships where a duty of care exists include:
• Employer to employee
• Doctor to patient
• Occupier of land or premises to visitor
• Owner of land or premises to tenant
• Manufacturer to consumer
Breach
Once a plaintiff has established that a duty of care was owed to them by the defendant, they will need to show that the defendant breached that duty of care.
Decisions on whether a ‘breach’ has occurred will centre around what is considered ‘reasonable’. This means that a person is not necessarily expected to prevent everyone from all harm, but that a person must act, under the circumstances, as a reasonable person would.
A plaintiff will need to show:
• There was a substantial risk of harm
• The risk was foreseeable
• A reasonable person, under the same circumstances, would have taken precautions against the risk
A defendant may not be held liable if there was an ‘obvious risk’, that is, the risk was obvious to a reasonable person and therefore the plaintiff is responsible for their own actions.
Causation
The third element that a plaintiff must prove in a negligence claim is causation. This means that a plaintiff must show that the damage or injury suffered came about as a result of the breach of duty of care.
For example, if a teacher supervising a classroom leaves that classroom unattended and a student is injured during that time, the plaintiff would have to show that the injury could have been prevented if the teacher was supervising the class. If the injury would have occurred regardless of teacher supervision, then the teacher may not be liable.
Damages
If a plaintiff successfully proves duty of care, breach and causation, they will be eligible to receive compensation for their injury or the harm that has been caused. This final element of a negligence claim is called damages. Damages are awarded for both economic and non-economic loss ( your pain and suffering) , medical expenses and domestic care ( subject to reaching a threshold)
In some cases, damages may be reduced if the plaintiff’s actions or inaction contributed to the damage or injury sustained. This is called contributory negligence.
Damages can become a very sensitive part of any negligence claim. It’s important that your voice is heard and the impact of your injury understood. At Taylor & Scott, achieving a favourable outcome for clients is our priority.
If you have suffered a serious injury and believe it was caused by the negligence of another, contact Taylor & Scott via our contact page for a free case assessment. If we believe your claim has a good chance of success, we will offer our ‘no-win no-fee’ guarantee.
How can Taylor & Scott Lawyers help with negligence claims?
The first step is to contact Taylor & Scott Lawyers for a free case assessment. Our specialist compensation lawyers are among the best in the business, with decades of case-winning experience. If we believe you have a valid personal injury negligence claim, we will provide the most up-to-date legal advice available, strengthen your claim with case law, and commence claim proceedings immediately on your behalf.
At Taylor & Scott, we offer a ‘no-win, no-fee’ payment schedule. We will cover all disbursements related to the personal injury claim until your case is won. If your claim is unsuccessful, we foot the bill. Your Taylor & Scott representative will undertake a range of responsibilities on your behalf, allowing you to focus on recovery. Our assistance includes:
• Procurement of police and medical records;
• Communication with medical professionals and other experts;
• Obtaining statements from witnesses;
• Obtaining liability and medical evidence;
• Communication with insurers and opposing legal teams;
Taylor & Scott Compensation Lawyers keep you in the loop during every stage of your negligence case. We are well-known for our caring, thoughtful and confidential approach that will allow you to rest easy while we take care of business.
At Taylor & Scott Lawyers Experience. Commitment. Results.
