General Topics of Law

A Guide to Negligence Law

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Individuals and businesses in the society owe a ‘duty of care’ to other people in a wide range of circumstances. A party that owes a duty of care to another may be liable in law for ‘negligence’ when such party fails to take reasonable care and thereby causes damage or harm to the other.

Components of Negligence

The key elements that need to be proven in Victoria to make a claim for negligence are:

• The negligent party must have owed a ‘duty of care’;
• The negligent party must have breached their duty of care; and
• The party making the claim must have suffered some harm as a result of the breach of the duty of car

In Victoria, the law of negligence is established under the Wrongs Act 1958 (Vic) and also by previously decided cases (commonly referred to as common law or precedents).

What is a ‘Duty of Care’?

The ‘duty of care’, short for duty to take reasonable care, is a duty that parties owe to other parties in several circumstances. The duty is essentially to avoid causing harm that can be reasonably foreseen by the party that owes the duty of care.

The circumstances under which a duty of care is owed usually exist only if there is a sufficiently close relationship between the parties.

There are some circumstances that automatically give rise to a duty of care in the law. The following relationships are considered to be scenarios in which a duty of care is presumed to exist:

• a doctor and patient;
• the co-owed duty between road users;
• a landlord and a tenant;
• a solicitor and client;
• a manufacturer of goods and the consumers of the goods.

In other instances, a duty of care relationship may exist due to the nature of the relationship between the parties, even if no presumed duty of care exists. For example, if one party has a substantial degree of control and/or reliance over the actions of another, a duty of care may exist. In this instance the party with greater control has a duty to take reasonable care with their actions so that no harm is caused to the reliant party.

When one is owed a duty of care, the party that owes such duty must take reasonable care to avoid causing harm or damage to the party to whom such duty is owed.

Breach of Duty of Care

The party that owes a duty of care to another has the responsibility to behave in a certain way. The party is required to act in a way that a ‘reasonable person’ in the same position would have acted. The way a party is required to act is called ‘standard of care’. 

How high the standard of care is would depend on the type of the relationship that exists between the parties.

For example, the standard of care that a doctor would be required to take when performing a surgery on their patient would be higher than the standard of care that a employer has towards their employees.

If a party fails to meet the standard of care that they are required to take by law, they ‘breach’ their duty of care.

Lawyers and courts consider the particular circumstances surrounding each case to determine what the standard of care would be in each situation and to determine if a breach has occurred.

The following factors are usually considered:

• How probable was it that harm would occur if duty of care was not exercised?
• Was the harm, that was likely to be caused, serious?
• How burdensome are the steps that the party who owes a duty of care could have taken to avoid causing harm?
• How useful to the society is the activity that caused the harm?

Causation of Damage

If it can be established that a duty of care was owed, and such duty was breached, the party making a claim must also show that harm was caused as a result of the breach.

Harm can include the following:

• Economic loss;
• A physical or psychological injury;
• Damage to property.

The harm must be caused to the person in the relationship in which the duty of care is owed. For example, in a doctor patient relationship, it is unlikely that a third party, such as the patient’s parents can make  a claim. 

How to make a claim for Negligence?

The party to whom a duty of care was owed, and who suffered harm due to breach of such duty of care can make a claim by filing an application in a court of law.

Different courts in Victoria have jurisdiction in relation to negligence claims. Depending on the nature of the claim, a party is required to lodge an application (or a complaint) in a relevant Victorian court. 

If more than one party owes a duty of care and multiple parties breach the duty of care, the claimant can bring a claim against one or all of the negligent parties. They are not compelled to bring a claim against all parties.

However, the negligent party can bring a claim against the other negligent party and seek to apportion (distribute) the damages between such negligent parties in accordance with the responsibility that each party had. 

Due to the small details involved in claims for negligence, it is prudent to seek assistance from a legal practitioner to ensure that a party gets the best result possible.

Are there any time limits for making a negligence claim?

If you have suffered harm due to negligence, you should act quickly to ensure that your claim is not prevented due to a legal time limit applicable to claims of negligence.

A claim for negligence must be commenced either:

• Within a period of 3 years from the discovery of the potential claim; or

• Within a period of 12 years from the date of the act or failure to act by the negligent party.

The Limitation of Actions Act 1958 provides the time limits in which a person can make a claim of negligence in Victoria.

How can we help you make a claim.

At Rosendorff Lawyers, we align with the needs and strategies of our clients to guide them through all stages of their claims. 

Our Melbourne based lawyers aim to assist our clients make claims in a cost-effective manner. We aim at settling cases quickly with excellent outcomes. Our clients can attest to our straightforward and honest approach that ensures that our clients’ interests are protected.

Our services are geared for individuals and small to medium-sized businesses, with a team of experienced practitioners who are highly experienced in the following areas of law:

• Law of Torts including Negligence Law

• Commercial, Corporate and Business Law

• Property Law & Conveyancing

• Taxation

• Building & Construction

• Intellectual Property

• Employment and Workplace Relations

• Wills and Estate Planning

• Commercial Litigation

• Bankruptcy Law and Insolvency

• Franchise Law

Contact us today on (03) 8320 2955 to arrange an appointment and consultation with one of our experienced lawyers.