Frequently Asked Questions
You need to check the relevant legislation in your State and Territory, as the rules are different in each jurisdiction.
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What is professional negligence?
- In New South Wales professional negligence is defined under the law as the breach of a duty of care or of a contractual obligation in the performance of professional work or in the provision of professional services.
- Claims for professional negligence are primarily made against medical practitioners, legal practitioners and accountants but can be made against any individual engaging in professional services in any industry.
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Who can bring a claim for professional negligence?
- If you have suffered loss as a result of a professional’s negligence then you may be entitled to claim compensation by bringing a private action against the professional in court.
- If you need legal representation for a professional negligence claim our Legal Plan™ membership will allow you to ask lawyers for a tender or a Fixed Fee Quote on your matter.
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What is the difference between a plaintiff and a defendant?
- The person who brings a claim in court is called a plaintiff. This is the person who has suffered the loss or injury.
- The person who the claim is brought against in court is called a defendant. This is the professional who has acted negligently.
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What must be proved to bring a claim of professional negligence?
- The plaintiff must prove that the defendant:
- owed them a duty a care;
- breached that duty of care; and
- the breach caused the damage experienced by the plaintiff.
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What is an onus of proof and who bears it in a professional negligence case?
- The onus of proof rests with the plaintiff who is required to prove a case of professional negligence. They have the onus of proving to the court that the relevant facts exist and that negligence has actually occurred.
- In professional negligence cases the plaintiff must convince the court that on the balance of probabilities negligence has occurred. This does not mean that the court must be completely convinced of each small detail but as a cumulative whole the evidence must indicate negligence.
- The court will consider all of the evidence and ask what series of events is more probable. If the evidence shows that the incident probably happened a particular way then they will make their decision accordingly.
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What is meant by vicarious liability?
- Vicarious liability arises in circumstances where one person is held responsible for the conduct of another person unless that person can show that ‘all reasonable steps’ have been taken to reduce this liability.
- For example:
- an employer may be vicariously liable for negligent acts or omissions by his or her employee done in ‘the course of employment’. Proof of fault on behalf of the employer is often not required. They will be responsible for their employee’s negligence regardless of any wrongdoing on their own part; and
- a contractor may be liable if their subcontractors fail to finish certain work or do the work incorrectly.
- The primary liability will still be of the negligent party who is in this case the employee.
- The vicarious liability is a secondary liability incurred by the employer.
- Usually both will be liable jointly and severally. This means you recover the entire compensation amount from one of these people or from both in proportion to their responsibility.
- If you think your professional negligence claim may be complicated by vicarious liability you can use our Phone a Lawyer service to get a preliminary consultation.
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What is a duty of care?
- A duty of care is a legal responsibility imposed on an individual that requires them to observe a reasonable standard of care while doing anything that may cause harm to others. For example a financial adviser owes a duty of care to his or her client to provide sound and appropriate advice to protect their assets and ensure financial growth.
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What is a standard of care?
- A standard of care is the degree or level of care expected of an individual who owes a duty of care to another person. Once you have established that someone owes you a duty of care you must establish what standard of care must be provided.
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What is causation?
- Causation simply means that the actions of an individual caused injury or loss to another person. For you to prove that a professional has been negligent you must establish that their actions or inactions actually caused your harm or loss. This is just one of the criteria that must be met to prove that negligence caused particular harm.
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What is an exceptional case?
- In New South Wales the Civil Liability Act 2002 (NSW) does not expressly define what an exceptional case is for those situations where causation can't be established. An exceptional case is simply a situation where negligence cannot be established as a necessary condition of the loss suffered. This means that the common law ‘but for’ test of causation is not met. The common law test asks 'whether the harm would have been suffered but for the acts or omissions of the professional'.
- If the harm would have been suffered regardless of the acts or omissions of the professional then the court considers whether responsibility for the harm should be imposed on the negligent party and why.
- If you think you may have an exceptional case you can use our free and anonymous Ask a Lawyer service to get information specific to your situation.
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How much can a plaintiff claim?
- The amount that a plaintiff may claim depends on their particular situation and the amount of loss they have suffered as a consequence of the professional’s negligence.
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Are professional negligence claims subject to any time limitations?
- In Australia professional negligence cases are subject to strict time limits. In most cases the plaintiff has 6 years from when they suffered the loss to commence court proceedings.
- Our free Find a Lawyer directory may help put you in touch with the assistance you need to commence a claim before the time period runs out.
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What defence is available to professionals in a professional negligence claims?
- In New South Wales a professional will not be considered liable if he or she acted in a manner that was generally accepted by his or her professional peers to be competent professional practice at the time.
- Despite this a court will still not be bound by peer professional opinion if it finds that the opinion was irrational or not best practice.
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