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‘It’s The Law’ – What is negligence?

Negligence is an area of law that most Wimmera residents will have heard of but likely do not understand fully. 

In this article, I will explain what negligence is, the type of circumstances in which a claim of negligence can be made, what needs to be proven for a claim of negligence to succeed, and what to do if you have suffered due to someone’s negligence.

Negligence claims allow a person who has suffered injury or loss because of another person failing to take reasonable care to be financially compensated for their injury or loss. 

Negligence can be proven in a wide range of circumstances where property damage, financial loss or personal injury has occurred. 

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Duty of care

To succeed in a claim of negligence you must be able to prove that the person who failed to take reasonable care – the defendant – owed you a duty of care. 

There are many situations where a duty of care is found to have existed including:

• Doctor to their patient.

• Teacher to their student.

• Accountant to their client.

• Car driver to another road user.

• Manufacturer to the user of their product.

• Employer to employee.

• Occupier of premises to entrant.

Car accidents and where someone has slipped and fell are common types of negligence claims. 

Professional negligence is another type of negligence, which exists to protect those who have suffered as a result of a professional failing to exercise reasonable care and skill when working with a client. 

Professional negligence claims can be made against accountants, lawyers, financial advisers and doctors.

Establishing liability

To establish liability you must ordinarily prove that a reasonable person would have acted in a way that would have protected against you suffering the loss you suffered. This may involve considering the following:

Should the defendant have known their actions could cause you harm?

What do other people in the defendant’s position usually do?

How likely was it that harm would result from the defendant’s conduct?

You must also be able to show that the defendant’s breach of their duty of care caused you to suffer loss or harm.

Contributory negligence

If you have done something that contributed to the cause of your loss or injury, the amount of damages you can claim will be reduced according to the extent you are found to have contributed to the loss.

Next steps

If you have suffered physical or financial loss you should speak to a solicitor about your options in pursuing a claim for damages against the defendant. 

There are time limits for when you can bring a claim, so you should obtain legal advice sooner rather than later. 

• Patrick Smith is the principal of O’Brien and Smith Lawyers. This article is intended to be used as a guide only. It is not, and is not intended to be, advice on any specific matter. Neither Patrick nor O’Brien and Smith Lawyers accept responsibility for any acts or omissions resulting from reliance upon the content of this article. Before acting on the basis of any material in this article, we recommend that you consult your lawyer.

The entire February 21, 2024 edition of The Weekly Advertiser is available online. READ IT HERE!