What's the difference between negligence and a mistake?

Published 22 Aug 2018

Determining if someone was negligent when an injury occurred is dependent on a number of factors. However, there are guidelines in place under the Civil Liability Act that indicate how to determine negligence.

A patient may sue a medical provider if they or their legal counsel can credibly prove that there was not a reasonable amount of care given to the patient.

Below is a deeper look at the details outlined in the provisions.

When is a mistake deemed negligent?

According to the Civil Liability Act, a person is considered negligent if they have failed to take precautions against a risk of harm if the risk was foreseeable, if the risk was significant, and if a reasonable person in their position would have taken the aforementioned precautions. To determine what a "reasonable" person would have done, the Act outlines the considerations to be: the probability of harm if care wasn't taken, the seriousness that would have been likely, how much of a burden taking precautions to avoid harm would have been, and the "social utility" of the risk-creating activity.

To make a determination, elements that are considered are factual causation, which is whether the negligence was a necessary condition of the occurrence of the harm (meaning whether the harm would have occurred without the negligent act), and scope of liability, which is whether the negligent person's liability should extend to the harm that they caused.

When is a mistake just a mistake?

The fact that an injury was caused or worsened does not automatically make the person negligent. In order to be negligent, the person would have had to knowingly go through with something they knew to be risky and potentially harmful, and a court could decide that a reasonable person would have avoided such risk in that situation. The medical provider could fight the claim by showing that other doctors or medical professionals at their level would have acted similarly in the same situation.

If you or someone you know is a victim of medical negligence, you may be eligible to file a medical negligence claim and get the compensation you deserve. Contact our team of lawyers at Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers to see if you are eligible.