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Do I have a personal injury negligence claim?

Someone that has been injured or fallen ill because a third party did not take the proper action — an employer, property owner or medical professional — could have a negligence claim. 

In this article, you’ll learn more about negligence claims and what compensation may be awarded to you by law.

What’s considered negligence under the law

If you are reading this article, you are probably considering suing for harm caused by someone else’s negligence — but how does the law define ‘negligence’? 

The Civil Liability Act 2002 defines negligence as “failure to exercise reasonable care and skill.” For example, suing a gynaecologist for not biopsying a dangerous polyp or a real estate agent for not thoroughly reviewing a contract as any other professional would do. Common personal injury negligence claims are public liability, employer, medical and professional negligence.

However, there are different considerations for reasonable care. Suppose you’re injured whilst surfing or become ill from wrestling snakes for sport. In Victoria, under the Wrongs Act 1958 (VIC), there is no liability for injury caused by an ‘inherent or obvious’ risk. However, certain actors, particularly professionals, have a duty of care to their clients.

Negligence in personal injury claims

Is negligence central to a personal injury claim? Yes. And, no. There are situations where no fault is needed for an injured or sick person to receive compensation. For instance, workers can file a claim with their state’s workers’ compensation insurance for treatment of issues without proving fault. 

On the other hand, you must show fault or negligence if the damage is above the compensation threshold of your state’s insurance scheme.

What counts as negligence in personal injury claims?

Personal injury encompasses impairments before birth, a person’s physical or mental condition and disease. A personal injury claim can demand compensation for financial loss, property damage, injury and death. 

Relationships that involve a duty of care include:

  • Employer and employee.
  • Doctor’s duty of care for a patient.
  • Either party on or near a roadway. 
  • Landlord and tenant.
  • Property owner and visitor.
  • Teacher’s duty to a student.
  • Manufacturer and consumer.


Many aren’t aware that the court determines the reasonable standard of care in most cases. For instance, a volunteer doing charitable work for any type of organisation is immune from negligence for serving spoilt food according to the Civil Liability Act 2003 (Qld). Put another way, what is considered a reasonable standard of care for a minor by a teacher won’t be the same for a parent. 

Negligence occurs when the reasonable standard of care hasn’t been met or is breached. But how does an injured person show negligence to the court’s satisfaction?

How to establish negligence

It’s possible negligence caused your injury or ailment. Here’s how the court concludes a breach of care occurred:

  • The person who owed the duty (i.e., the doctor) knew or ought to have known the risk of harm.
  • The risk was significant.
  • A reasonable person would have taken precautions against the risk.

Most importantly, the court’s finding of negligence is made on a case-by-case basis. Anyone seeking compensation for a negligence claim should obtain legal advice in the state where the harm occurred.

Challenges to proving negligence

A court will consider whether you took reasonable precautions or if you somehow partially caused yourself harm or contributory negligence. Such as an intoxicated person’s injury. However, medical treatment should meet the same standard of care regardless of the sobriety of the patient.  

When a court considers what is reasonable, the ability to take the necessary precautions to avoid risk plays a part. Therefore, the court considers:

  • The probability of harm occurring if the actor (the person with the duty) takes sufficient care.
  • How severe the harm could’ve been.
  • How onerous precautions would be to avoid the harm.
  • The social utility of the activity that creates the risk of harm.


In some cases, contributory negligence exists because of social utility or activities considered “generally beneficial.” For example, an oncoming car swerved to miss a stalled vehicle and hit a person crossing the street. The high social utility of acting to not hit another vehicle could reduce the reasonable care taken to prevent risk. However, activities that possess social utility are challenging to identify. The court takes it into account when considering contributory negligence, which can defeat a claim.

Read more about a motor vehicle contributory negligence case here.

One final challenge is that negligence claims under public liability laws are subject to time limits. In Australia, the time frame for tortious claims is generally set between three to six years from the date of harm. While we’re on the subject of limits, you should know that payouts for a medical negligence tort aren’t standardised.

Average payouts for a negligence claim

Given that cases differ — based on the extent of your injury, age, lifestyle, evidence and legal representation – you should expect the compensation for a negligence claim to vary, too. There have been splashy negligence settlements for seven figures. However, here is an overview of the median compensation for common personal injury claims: When you consider the financial loss and pain and suffering of a personal injury by negligence, no price tag will erase the harm. Likewise, expert legal advice can’t remove the damage done, but it can help ensure you receive compensation. For more information on compensation payouts, read our blog. Contact us for legal advice on your negligence claim. Gerard Malouf & Partners (GMP Law) has the track record and the sensitivity to handle your claim with care and advocate for your best interests.
About Us
Gerard Malouf & Partners have provided friendly, experienced legal advice to communities across Australia for over 35 years. Our Personal Injury Lawyers have taken on ten’s of thousands of cases and we are proud to have won billions of dollars for our clients.
Meet the diverse and dynamic team of compensation lawyers and supporting staff that have made this all happen below. Our multi-lingual team can discuss your claims in Arabic, Assyrian, Turkish, Greek, Italian, French, Serbian, Croatian, Armenian, Mandarin, Hindi, Punjabi or Malayalam.
Meet the diverse and dynamic team of compensation lawyers and supporting staff that have made this all happen below. Our multi-lingual team can discuss your claims in Arabic, Assyrian, Turkish, Greek, Italian, French, Serbian, Croatian, Armenian, Mandarin, Hindi, Punjabi or Malayalam.

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