Negligence:

Negligence (and professional negligence) is a very broad body of legal practice. “Broad” because it applies to many different situations and circumstances, whether in the context of a professional relationship between employers-employees, between co-workers, between owners of businesses or government agencies and the general public, manufacturers of goods and the market or their clients. This is not an exhaustive list. Basically, a claim in negligence requires evidence of the following four main elements:

• Proof of the existence of  duty of care (scope);
• Proof of breach of that standard of the duty of care;
• Proof of and quantum of damages or loss suffered as a consequence of the breach;
• Proof of the fact that the breach of the duty of care was the cause of the damages or loss suffered (causation).

As can be seen above, actions in negligence are very much dependant on evidentiary material, more so than other types of litigation. This is because negligence cases and especially professional negligence matters, are very serious affairs and the standards of proof must therefore be very high. The scope of the duty of care can be ascertained through common law or on the basis of the contract or agreement under which the alleged negligent party was discharging his or her duties and responsibilities. Here, the general principles of contract law may apply. However, perhaps the most difficult component of establishing the claim in negligence is the professional standard under which the “duty of care” is established. This can be gleaned from case law and also through the operation of various codes of conduct, codes of ethics and policies which address the practice standards of the industry in which the negligence claim is being made.

Some industries have professional representative bodies which may have these documents publically available. Sometimes the documents are for members only and may therefore need to be obtained through discovery or subpoena. Sometimes the business or company in which the alleged negligent party is engaged may have such documents. There may also be a government regulatory body which outlines the professional standards for that industry. The negligence solicitor will need to consider all of these possibilities when determining the elements of the case.

A mere allegation of negligence can have significant repercussions on the individual being accused. In some cases, the accusation itself can also give rise to an action in defamation against the alleging party unless the truth of the matter can be established. Another issue that should be considered where an allegation of negligence has been made is the impact of this on any insurance policy held by the party against whom the accusation is being made. Where the claim is in the realm of professional negligence, any mandatory or voluntary professional indemnity insurance may be voided on the basis that the negligent conduct falls under what is known as an “exclusion clause”. The negligence lawyer will need to take these matters into consideration when assessing the scope of the matter and how best to approach it.

A claim in negligence can arise from a variety of different situations, both in the civil litigation and commercial litigation practice area. Where cases are complicated, negligence may be connected to aspects common to civil disputes and commercial disputes as well. For these reasons, a commercial litigator with civil litigation experience may be able to competently provide legal advice in relation to the facts of a negligence dispute which will be more comprehensive. Likewise, a civil litigator with a commercial litigation background will be able to analyse a negligence dispute in more detail, taking into account a broader perspective in relation to those facts. The nexus of commercial and civil litigation within the negligence area means that the diverse resources available to the Navado litigation team will allow a focused approach to each case while also keeping an eye on the “bigger picture” and other potential legal principles that may apply.

If you require assistance with a negligence litigation matter, you may wish to contact our firm by telephone on (02) 9233 4048 or send an email to info@navado.com.au and make an appointment to speak to one of our solicitors. 

This webpage (and any material or wording appearing on this webpage) is provided for general information purposes only and does not constitute any Legal Advice. It does not take into account your objectives, your instructions or all of the relevant facts and/or circumstances. Navado accepts no responsibility to any person who relies on the information provided on this website. We further refer you to our Disclaimer.