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Negligence Law:

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A professional who has not discharged his duty and responsibility to a level that the customer/client or the broader community would expect, may have a claim in negligence or professional negligence brought against him either by a customer/client or a member of the public. Basically, there are three major components of a negligence case:

  • Establishing that there was a duty of care to the aggrieved party (the victim, or the person lodging a complaint);
  • Establishing that the duty of care was breached (i.e. that the professional had not lived up to the requisite professional standard when discharging his responsibilities); and
  • Loss and damage suffered as a result of the above.

Negligence may seem like a straight-forward type of litigation, however the principles involved can as a matter of fact render it one of the most difficult and complex cases to litigate. Of course, this will depend on the particulars of each individual matter and complaint. For that very reason it is not possible to provide any general outline which may be true for all matters prosecuted under the head of negligence or professional negligence. Any such attempt could only provide a very broad illustration of the ideas and concepts involved: for particular advice on a specific allegation of negligence, legal advice must be obtained from a negligence lawyer.

A negligence solicitor will need to consider the facts of the case brought before him in detail. It is from the facts of the case that the question of breach can be determined. It may seem trite to say this, but it must be emphasised in negligence cases for the very reason that such cases are fact-heavy. Finding evidence that a duty of care has been breached may even involve the use of expert evidence which is intended to shed light on a very complicated and niche area of legal practice: the duty of care owed to another in, say, the computer technology industry, may be different for that of heart surgeons. Whether or not a builder has discharged his duty of care may be a question resolved in a very different manner compared to, for example, a graphic designer and his expertise.

The law itself is a constantly evolving body of rules, regulations, principle and concepts. As the community expectations change with time, so too will the legal outcomes of negligence cases. A case decided thirty or forty years ago may have a very different outcome if decided today. Since community expectations are integral in ascertaining the duty of care owed by a professional, these changes will impact directly on the very idea of what the duty of care may be in a given industry. Added to this is that some industries have evolved and developed more rapidly over time than others, so the evolution of concepts of duty of care are unlikely to be uniform across areas of industry and professional practice.

Professional associations which represent industry bodies may be of considerable assistance in that they may have documents, policies or actual codes that stipulate the duty of care and professional standards that are expected in their scope of business activity. These may prove to be invaluable in assessing the threshold of negligent/non-negligence conduct when considering the legal authorities and the facts together. Sometimes these documents are reserved for members only, but mostly they are available to the public. Some of them are drafted by individuals with legal training, but often they are drafted as mission statements and can be very broad and almost impossible to apply without reference to other material.

For these reasons, some firms have developed niche practice areas in which their employed legal practitioners spend a not insignificant portion of their time dealing with professional negligence matters. Legal advice about negligence claims can therefore be more effectively provided, and provided to a higher legal standard. If an individual is thinking of suing a professional for negligence, it is highly recommended that they obtain thorough legal advice first before taking any steps filing a claim or lodging a complaint.

If you require assistance with a claim in negligence you may wish to contact our firm by telephone on (02) 9233 4048 or email us at info@navado.com.au and make an appointment to see one of our solicitors.

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