Professional Negligence
3. Proving Negligence
Authors: Staff Legal Eagle
Firm / Chambers:
Last updated: 24 Aug 2015
- In New South Wales professional negligence is covered under sections 5O to 5P of the Civil Liability Act 2002 (NSW).
- The person who brings a claim in court is referred to as the plaintiff. The plaintiff bears the onus of proving that negligence has occurred. To bear the onus of proof means that the plaintiff must prove on the balance of probabilities that negligence has occurred. This includes providing evidence to establish the facts that are relevant to the issue of causation. Causation means whether the defendant’s actions or inactions caused the damage alleged.
- The person who defends the claim brought in court is called a defendant. To bring a claim for professional negligence under the law the plaintiff must prove that the defendant:
- owed them a duty of care;
- breached that duty of care; and
- that the breach caused the damage or loss that is being alleged.
- The court considers the following elements when assessing a plaintiff’s claim:
- the proximity (relationship or connection) between the plaintiff and the defendant;
- the standard of care expected based on normal industry practice for that profession;
- whether there was any contributory negligence of the part of the plaintiff; and
- the existence of any vicarious liability which means whether the responsibility will be attributed to the defendant’s employer. Generally an employer will be responsible for the actions of an employee unless it can show that all reasonable steps have been taken to reduce this liability or that the employee was acting outside the course of their employment.
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