Negligence Claims

Professional Negligence Claims in NSW

The failure to act with reasonable and appropriate professional care is a common topic in court cases in New South Wales. This is known as professional negligence and it occurs across a variety of settings, from the professional to the everyday and commonplace. Unsurprising, professional negligence claims are frequently encountered in areas such as accounting, financial planning and also the medical field in terms of doctors failing to care for their patients adequately.

The Basics of a Negligence Case

Negligence occurs when a person suffers loss because of the failure of reasonable care of another. This person may then sue for to acquire compensation for the harm they experienced as a result. 

A legal case includes two sides:

  • A Defendant or Respondent: the party or person being sued
  • A Plaintiff or an Applicant: the person with the claim

With the above definitions, the person who has experienced harm is the applicant and the party allegedly responsible for the harm is the respondent. 

When pursuing a claim of negligence, the applicant is responsible for at least some of the following:

  • Bringing their claim in time often 6 years from when the loss was suffered
  • Putting together the case, and evidence in support of their claim
  • Discharging the burden of proof that negligence occurred

The elements of a negligence claim include the following features:

  1. Duty of care: that requires showing that the respondent owed a duty of care to the applicant 
  2. Breach of duty: The respondent breached their duty to take reasonable care
  3. Loss or Damage: The failure to take reasonable care caused loss to the applicant 

To further explore the above elements, let’s extend the definitions to understand the roles that can be involved in different negligence cases.

Duty of Care

A duty of care can be applied in many settings. In New South Wales, the court is responsible for ruling if a duty of care is owed in each specific case. Put simply, it is an obligation that arises in the given circumstances. 

For example, a doctor is expected to treat a patient with reasonable care. Other duties of care relationships in professional settings include:

  • A teacher to a student
  • An architect to the client
  • An accountant to his client

Aside from these authoritative relationships in professional settings, you can also see negligence occur in everyday occurrences. For example, an IT provider may install security software negligently causing phishing or a data breach. 

Breach of Duty

To accurately assess if a person or entity has acted outside of their duty of care, this standard must first be defined. Once established, it is then appropriate to decide if the standard was not met. All persons who owe a duty of care hold a responsibility to avoid causing foreseeable harm, like a teacher keeping his students safe.

In the above example, a teacher holds a responsibility to maintain the safety of students by protecting them from foreseeable harm and implementing precautions when necessary. Teachers must exercise reasonable care to the children, in a way that a parent would also act.

It mostly boils down to common sense, but things can also get more complicated like in cases of contributory negligence or vicarious liabilities. 

  • Contributory negligence: The applicant caused or contributed to their own harm or loss
  • Vicarious liability: The case where one person is the responsible party for the actions of another (i.e. an employer is responsible for an employee)

Loss or Damages

Where a person claims to have suffered damage, the court must decide if this injury was in fact caused by the claimed negligence. Ultimately – this is the main factor in negligent cases. The Civil Liability Legislation is used to consider if negligence occurred and what the respondent then owes by way of compensation if found to be negligent. 

Both historical and current copies of The Civil Liability Act, and other subordinate legislation, can be found on government websites although it may be best to ask a lawyer to assist with their interpretation and application. 

An injury does not necessarily mean physical harm. It can also include the following:

  • Loss of wealth 
  • Damage to property
  • Disease
  • Mental harm

These matters are decided by the court and on the basis of evidence admitted. Each step in the process is important to consider as they can affect the outcome of any verdict.

Examples of professional negligence cases

Medical

In the event of medical negligence, a clinician fails to treat a patient per the widely-accepted medical standard of care. This can include misdiagnosis, improper treatment, surgical errors, and overall inappropriate care. 

Owner-Tenant

The relationship of the building owner to the tenant may mean that the owner is responsible for providing a safe structure to live in. Failing to build and apply building to standards, such as maintaining heat and electricity, can perhaps be deemed to be negligence although much depends on the circumstances and if there is a lease agreement the terms of it. 

Engineer

An engineer may be responsible for designing a structure to deal with particular loads, and if it fails to do so then that may point to professional negligence. Again, much depends on the facts. 

Compensation after proving a negligence case

To the applicant that wins their negligence case, they are awarded compensation that is measured in terms of returning the person to their pre-injury status. Examples of this could include the following:

  • A return of financial loss
  • Medical bill coverage and lost salary compensation
  • A consideration of the person’s future abilities
  • Restoration of personal property damage.

Conclusion

When considering pursuing a case of professional negligence, it’s highly advised that a person seeks counsel from a lawyer (and not a layperson like an author) to provide the necessary guidance. A New South Wales lawyer can greatly aid in the organization of information, the definition of roles, and overall negligence inquiry. 

References

Federal Register of Legislation

https://www.legislation.gov.au/Details/C2016Q00058/Html/Text#_Toc197935191

Legal Services Commission

https://lawhandbook.sa.gov.au/ch01s05.php

Government of South Australia Legislation. 

https://www.legislation.sa.gov.au/LZ/C/A/CIVIL%20LIABILITY%20ACT%201936.aspx

Australian Journal of Teacher Education

https://ro.ecu.edu.au/cgi/viewcontent.cgi?article=1289&context=ajte

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