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Negligence

Negligence

What is negligence?

Negligence involves doing or failing to do something that a reasonable person would or would not do in a certain situation, and damage, injury or loss occurs to someone as a result.

When can I make a claim in negligence?

To make a claim in negligence you would have to show that:

  • The person you believe is responsible for your injury, loss or damage:
    • owed you a duty of care and
    • breached the duty of care they owed you.
  • You suffered a loss or injury or other damage.
  • Your loss, injury or the damage occurred as a result of the breach of the duty of care.

All of these things need to be shown for a successful claim. There are laws setting out the requirements for making a personal injury claim. Get legal advice.

What is a duty of care?

The law says we all have a duty of care to take reasonable care not to cause foreseeable harm to other people or their property.

Sometimes it can be complicated to work out if a duty of care is owed and legal advice may be necessary.

When does a breach of a duty of care cause a personal injury?

In some cases it will be obvious what caused the injury, eg if a person slips on a wet floor in a shop and then discovers they have a broken arm. Sometimes showing the cause of an injury can be more complex, eg the person slips on a wet floor but earlier in the morning they hurt their arm in a fall on the stairs of another building. There is likely to be a question about which fall caused the injury. Get legal advice.

How can I make a claim?

If you have suffered an injury because of negligence you may be able to make a civil claim through the courts for damages. The law relating to negligence is complicated. If you want to know if you have a claim based on negligence you should get legal advice.

Do time limits apply for starting legal action for negligence in the courts?

Yes. Strict time limits apply. Get legal advice promptly about the time limit that applies in your situation.

Is a claim worthwhile?

This depends on the severity of the injury and the costs of pursuing the claim.

Legal advice is necessary to work out:

  • whether there is any legal basis to your claim
  • who you should make a claim against
  • the chances of success
  • the costs involved in going to court, eg legal costs, court fees and witness fees, etc
  • the appropriate court.

In many cases, parties negotiate a settlement as any legal action can be costly, time consuming and stressful. But legal advice is necessary before negotiations commence.

What should I take to a legal appointment?

This is the sort of information you should take to a legal appointment:

  • Personal details of any other parties involved.
  • Names and addresses of any witnesses.
  • Any letters received about the matter.
  • Copies of any letters written.
  • The date, time and place of the incident.
  • Full details of how the incident occurred (notes may be helpful).
  • Full description of injuries or loss (if property damage, eg quotes).
  • Details of any hospitalisation or treatment.
  • Full names and addresses of any treating doctors or other therapists.
  • Any medical accounts or other accounts related to this injury that you have received.
  • Details of work history and current employment details.
  • Your thoughts on how the injury is currently affecting you.
  • Any valuations or quotes for repairs, etc (if property damage).
  • Any photos taken (photos should be dated and signed by the person who took them).

Where can I get more information?

  • See Personal injury FAQs.
  • For injuries suffered in a motor vehicle accident see Personal injury-motor vehicle accidents.
  • For injuries suffered at work see Workers compensation.
  • See Getting injured on someone else's property.
  • On issues you should consider before hiring a lawyer for a negligence case go to Lawyers.
  • For the names of lawyers who are specialists in personal injury matters  go to the Law Society of WA's website or ring (08) 9324 8600.
  • Law Access is a not-for-profit organisation that coordinates the giving of pro bono (free or reduced cost) legal assistance by the Western Australian legal profession. The service is targeted at not-for-profits and individuals in genuine need of legal assistance who satisfy a means and merits test. Contact Law Access on (08) 9324 8600.

Last reviewed: 26/11/2015

Last modified: 27/11/2015 6:51 AM

Disclaimer

The information displayed on this page is provided for information purposes only and does not constitute legal advice. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia aims to provide information that is accurate, however does not accept responsibility for any errors or omissions in the information provided on this page or incorporated into it by reference.