The Law Handbook 2024

926 NOTE The law in this chapter is current as at 1 September 2023. Negligence, liability and damages Introduction to negligence and damage claims Very few claimants for personal injury are actually entitled to damages. Generally, for an injured person to be entitled to damages, they must first establish that there has been negligence on the part of another person. Examples of such cases include an industrial accident, a motor vehicle accident, a slip or fall in a public place, or medical treatment gone wrong. There are two aspects to every claim for damages arising out of negligence: • First, a plaintiff must establish liability (or fault) on the part of the defendant by proving negligence. • Second, once liability has been established, the court then assesses the amount of appropriate damages. It is important to seek advice from a lawyer or a community legal centre in all cases involving a possible claim for damages for personal injury. Which courts hear negligence and damages claims? Claims for personal injury damages arising out of negligence usually proceed in the County Court or the Supreme Court, but occasionally they are issued in the Magistrates’ Court. The seriousness of the injury, and thus the amount of damages sought, will determine the court in which proceedings are issued (for monetary limits, see Chapter 1.2: An introduction to the courts). In the County Court and the Supreme Court, claims for damages arising out of negligence can be heard before a judge sitting alone or a judge sitting with a jury. Claims in the Magistrates’ Court are heard by a magistrate without a jury. Generally, claims are commenced by the issue of a writ (Supreme or County Court) or a complaint (Magistrates’ Court). The parties to negligence and damages claims The plaintiff is the person claiming damages. The plaintiff may be the actual person injured, or a dependant claiming damages arising out of the wrongful death of an injured person. The defendant is the person or body alleged to have been negligent or to have been responsible for such negligence. Establishing liability A duty of care To establish liability at common law, a plaintiff must first establish that a defendant owed a duty of care (a responsibility) towards the plaintiff or the deceased person. The reasonable person standard of negligence Over a period of years, the law has established a requirement that people (including companies and governments) should conduct their affairs to a standard to allow for the protection of others against unreasonable risks. The standard required is that of the reasonable person. What a reasonable person would have done in the circumstances is a matter for the courts to decide, after considering all the facts surrounding the incident(s) that caused injury to the plaintiff or the deceased person. This involves asking questions like: Was the harm foreseeable? What is the usual practice in the circumstances? How likely was it that harm would result from the defendant’s conduct? The courts have considered these problems in detail over the years. The principles applied in specific areas are discussed in the following chapters. Negligence and injury 10.1 Contributor: Brian Wright, Reserve Magistrate, Magistrates’ Court of Victoria