Someone that has been injured or fallen ill because a third party did not take the proper action — an employer, property owner or medical professional — could have a negligence claim.
In this article, you’ll learn more about negligence claims and what compensation may be awarded to you by law.
What’s considered negligence under the law
If you are reading this article, you are probably considering suing for harm caused by someone else’s negligence — but how does the law define ‘negligence’?
The Civil Liability Act 2002 defines negligence as “failure to exercise reasonable care and skill.” For example, suing a gynaecologist for not biopsying a dangerous polyp or a real estate agent for not thoroughly reviewing a contract as any other professional would do. Common personal injury negligence claims are public liability, employer, medical and professional negligence.
However, there are different considerations for reasonable care. Suppose you’re injured whilst surfing or become ill from wrestling snakes for sport. In Victoria, under the Wrongs Act 1958 (VIC), there is no liability for injury caused by an ‘inherent or obvious’ risk. However, certain actors, particularly professionals, have a duty of care to their clients.
Negligence in personal injury claims
Is negligence central to a personal injury claim? Yes. And, no. There are situations where no fault is needed for an injured or sick person to receive compensation. For instance, workers can file a claim with their state’s workers’ compensation insurance for treatment of issues without proving fault.
On the other hand, you must show fault or negligence if the damage is above the compensation threshold of your state’s insurance scheme.
What counts as negligence in personal injury claims?
Personal injury encompasses impairments before birth, a person’s physical or mental condition and disease. A personal injury claim can demand compensation for financial loss, property damage, injury and death.
Relationships that involve a duty of care include:
- Employer and employee.
- Doctor’s duty of care for a patient.
- Either party on or near a roadway.
- Landlord and tenant.
- Property owner and visitor.
- Teacher’s duty to a student.
- Manufacturer and consumer.
Many aren’t aware that the court determines the reasonable standard of care in most cases. For instance, a volunteer doing charitable work for any type of organisation is immune from negligence for serving spoilt food according to the Civil Liability Act 2003 (Qld). Put another way, what is considered a reasonable standard of care for a minor by a teacher won’t be the same for a parent.
Negligence occurs when the reasonable standard of care hasn’t been met or is breached. But how does an injured person show negligence to the court’s satisfaction?
How to establish negligence
It’s possible negligence caused your injury or ailment. Here’s how the court concludes a breach of care occurred:
- The person who owed the duty (i.e., the doctor) knew or ought to have known the risk of harm.
- The risk was significant.
- A reasonable person would have taken precautions against the risk.
Most importantly, the court’s finding of negligence is made on a case-by-case basis. Anyone seeking compensation for a negligence claim should obtain legal advice in the state where the harm occurred.
Challenges to proving negligence
A court will consider whether you took reasonable precautions or if you somehow partially caused yourself harm or contributory negligence. Such as an intoxicated person’s injury. However, medical treatment should meet the same standard of care regardless of the sobriety of the patient.
When a court considers what is reasonable, the ability to take the necessary precautions to avoid risk plays a part. Therefore, the court considers:
- The probability of harm occurring if the actor (the person with the duty) takes sufficient care.
- How severe the harm could’ve been.
- How onerous precautions would be to avoid the harm.
- The social utility of the activity that creates the risk of harm.
In some cases, contributory negligence exists because of social utility or activities considered “generally beneficial.” For example, an oncoming car swerved to miss a stalled vehicle and hit a person crossing the street. The high social utility of acting to not hit another vehicle could reduce the reasonable care taken to prevent risk. However, activities that possess social utility are challenging to identify. The court takes it into account when considering contributory negligence, which can defeat a claim.
Read more about a motor vehicle contributory negligence case here.
One final challenge is that negligence claims under public liability laws are subject to time limits. In Australia, the time frame for tortious claims is generally set between three to six years from the date of harm. While we’re on the subject of limits, you should know that payouts for a medical negligence tort aren’t standardised.
Average payouts for a negligence claim
- WorkSafe Australia puts median compensation at $15,100 for serious worker’s compensation claims for 2019-2020, up from $14,500 the year before.
- Australian Government Actuary (AGA) puts the average medical negligence settlement at less than $100,000 and 6% paid closer to $500,000 or more in 2017. Those with higher payouts accounted for 65% of the cost of all medical indemnity claims.
- Motor vehicle injury claim payouts vary by state. For example, in Queensland, an injury scale value prescribes an amount based on a given timeframe. In NSW, the State Insurance Regulatory Authority (SIRA) puts the average payment per at-fault claim reported at between $16,000-$23,000.
