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 person or party’.
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.
Economic loss includes loss of wages and income, as well as out of pocket expenses such as medical expenses and necessary domestic services. Non-economic loss refers to the pain and suffering as a result of the harm or injury.
Damages are awarded on a case by case basis. When deciding on an appropriate amount, a court will consider:
- The amount of any financial loss
- The severity of the injury
- The impact of the injury on one’s future
If a case involves property, a court will consider the extent of the damage, the type of property and whether or not it is replaceable.
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.
What are the four basic elements of a negligence claim?
A negligence claim arises when a person (the negligent party) breaches duty of care responsibilities toward another person (the claimant), resulting in an injury or damage. The four basic elements of a negligence claim are:
- A duty of care existed between the negligent person and the claimant;
- The negligent person breached their duty of care responsibilities;
- Injury or damage was suffered due to a negligent act or failure to exercise duty of care;
- A compensation claim for damages is established.
The amount of compensation (damages) awarded depends on the specific circumstances surrounding the case. If injuries were suffered in part due to your own fault (contributory negligence) you may still be eligible to make a negligence claim.
Can you sue for negligence without injury?
A claim for negligence can be made for a psychological injury caused by another person or party. Emotional trauma can be devastating, with resultant pain and suffering severely impacting a person’s quality of life. Negligence in the workplace, schoolyard or other premises may involve prolonged exposure to bullying, harassment and other forms of abuse caused by a failure to exercise a reasonable standard of care from those in charge.
A personal injury claim can include both physical and psychological injuries, for example, after a motor vehicle accident or a workplace accident. The psychiatric or psychological injury may be secondary to the physical injury. For a successful psychological damages claim you will need to establish that your psychological injuries such as a depressive disorder, anxiety disorder of trauma-related disorder occurred where a duty of care existed. If a person breaches that duty, resulting in a physical or psychological injury, you can make a claim for compensation.
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 other evidence;
- Communication with insurers and opposing legal teams;
- Collation of forms, paperwork and evidence in a persuasive claim document.
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, We Care For You.
