What is negligence?
Negligence in Australia is an area of law initially developed by common law (through the Court’s) but is now also dealt (in NSW) under the Civil Liability Act 2002 (NSW).
In a nutshell, negligence is the failure to take reasonable care which results in harm being suffered by a person or business. Harm, in this context, can encompass anything from property damage and personal injury to economic or financial loss.
How does a claim for negligence arise?
For a claim of negligence to arise, the claimant must show that the negligent party has breached their duty of care, which was owing to the claimant, and as a result of this breach, the claimant has suffered loss or damages which was foreseeable, or not too remote.
What are the elements of a claim for negligence?
For someone to be able to prove another person has been negligent, they must prove:
- A duty of care was owed by the alleged negligent person to the harmed person (duty of care);
- The duty of care was breached (breach of duty);
- The negligent act caused the harm (causation);
- The damage or harm was not too remote, in other words, was the damage or harm suffered a reasonably foreseeable consequence of the negligent act? (remoteness of damage);
Often a claim for negligence will be brought alongside a number of other causes of action such as a breach of contract if there was a contractual obligation between the parties.
What is a ‘duty of care’?
In NSW, a ‘duty of care’ can be established through a number pre-determined relationships where a duty of care is presumed to arise. It is not an exhaustive list, and whether or not a duty of care arises will be determined on a case by case basis, on its own merits.
However, Court’s have previously determined a duty of care to arise in the following situations or relationships:
Do any time limits apply?
In Australia, the majority of legal claims must be commenced within a specified period of time (limitation period), otherwise, they may be ‘statute barred’. These are determined by the Limitations Act 1969 (NSW), as well as other common law principles that have developed over time through the Courts.
The limitation periods are different between the various types of negligence claims. Generally, in NSW a claim for property damage or economic loss arising from negligence must be commenced within six (6) years from when the cause of action accrues or is first discoverable. On the other hand, a claim for personal injury claim (which accrues on or after 6 December 2002) arising from negligence might only be three (3) years from the date of discoverability or twelve (12) years from the act or omission, whichever expires first.
Often when a person has a legal claim against another person, they might have a number of other ancillary claims available to pursue and each of these additional claims may have different time limits. Therefore if you suspect you have a claim, we recommend that you promptly seek legal advice to avoid being stature barred or prevented from pursuing your legal claims.
When does the cause of action accrue or commence to run?
As a general rule, a cause of action accrues on the date on which the action is complete. In other words, the first day on which the legal proceedings could have been competently commenced. In negligence, for example, this would arise when there is a loss or damage suffered, as damage is a prerequisite for an action in negligence.
It has also been determined through the Courts that if the value or loss is not ascertainable at the time of entering into a transaction (for example, when providing a personal Guarantee & Indemnity), the suffering of any loss cannot be said to occur before it is reasonably ascertainable.
Generally, the time in which a person suffers loss or damage is a question of fact and will differ from case to case.
What if I am already outside of the limitation period?
If you suspect that the limitation period has expired, or is due to expire, it is imperative that you seek legal advice immediately to ensure your claim is not lost or ‘statute barred’.
In certain circumstances, a limitation period can be extended or cease to run, such as when a person is under a legal disability and you should consult with a lawyer about extending or stopping the limitation period.
How can we help?
At Rockliffs Lawyers, we have extensive experience in a range of negligence claims arising out of a variety of business or commercial contexts. Whether it is a dispute where a building consultant or engineer’s negligence on a project has led to extensive delays and losses, to claims against Real Estate Agents for negligently managing a client’s property resulting in extensive damage to their home, our negligence lawyers can help you recover your damages!
If you suspect somebody has been negligent which has caused you harm or want some advice on whether the conduct of a person is or would be considered negligent and have suffered a loss, get in touch with one of our experienced negligence lawyers today to see how we can assist you!