How to prove negligence in a personal injury case

What is personal injury?

For the purpose of compensation law, a ‘personal injury’ is a physical, psychological or emotional injury, including a fatal injury. It doesn’t include property damage.

If the injury is wholly or partly caused by another person’s or organisation’s negligence, the injured party can claim compensation (damages) from them.

A wide range of injuries are covered, including:

• physical: broken bones, head injuries, severe burns lost limbs, gashes and grazes, asbestos poisoning, cancer
• psychological and emotional: anxiety, depression, post-traumatic stress.
  If the other party’s negligence caused a pre-existing injury to worsen, this is also a personal injury.

Types of personal injury

There are many different types of personal injury, but the four most common claim types are:

• Public liability claims
• Motor vehicle accident claims
• Workers’ compensation (WorkCover) claims
• Total Permanent Disability claim.

Public liability

Public liability insurance covers businesses and other organisations if someone is injured while they’re on the premises. Every business must have public liability insurance, including retail stores, festivals and events, and the council and government.

Motor vehicle accidents

All drivers must have compulsory third party insurance to cover them if someone is injured in a car accident due to their negligence. The injured party can claim compensation for the injury only, not property damage.

Workers compensation

Workers compensation is a little different because it’s a no-fault scheme. You can make a claim no matter who was at fault and receive help with medical expenses and wages while you recover.

However, you can make a ‘common law claim’ if you believe the employer caused your injury through negligence. You could then receive compensation for pain and suffering, and lost income and superannuation. You will need a high level of evidence to prove this claim.

Total permanent disability

You may be eligible for a lump sum payout if the injury or illness is serious enough to prevent you from working. It doesn’t have to be a catastrophic injury.
However, for this claim, you don’t have to prove that another party was negligent in causing your injury – only that it’s not minor, you can’t fully recover from it and it impacts your ability to work.

In this article, we’ll focus on personal injury claims where you need to prove fault or negligence.

How do you prove negligence in personal injury?

Negligence occurs when a person or organisation causes injury or harm by failing to take reasonable care to prevent it happening. To establish negligence, you need to prove four main things:

1. A duty of care was owed to you:
   • Someone has a duty of care if they’re required by law to act with ‘reasonable care, caution, and skill’ to prevent harm or injury to you. If the at-fault party had no duty of care towards you, then you usually can’t claim negligence.
2. They breached their duty of care:
   • After proving they had a duty of care, you have to prove they breached it by failing to take reasonable steps to prevent your injury or harm. To establish this, insurers and courts usually consider what a reasonable person would’ve done in the same situation.
3. The breach of duty caused injury or harm:
   • Just proving that the other party breached a duty of care isn’t enough. You need to prove a direct relationship between the injury and the breach (i.e. that it wouldn’t have occurred if the other party had take care to prevent it).
4. You have suffered or will suffer, loss because of the injury:
   • Some injuries are more serious, with ongoing consequences for the injured party’s quality of life. Others are minor inconveniences that you can recover from quickly. To prove negligence, you must show that you’ve suffered (or will suffer) loss or damage because of their breach of duty.

Who can be at fault?

• Businesses and property occupiers must provide safe premises for visitors, customers, and other people who enter their property.
• Employers must provide a safe workplace, including training, tools and supervision.
• Doctors, dentists, lawyers and other professionals must provide capable and professional services.
• Road users, including drivers, cyclists, and pedestrians must behave safely and within the law
• Manufacturers must provide consumers with products that are safe and fit for purpose.
• Council and government must provide safe facilities like offices, car parks, street lighting, and public spaces and parks.

How to prove negligence

The key to proving negligence is to provide as much evidence as possible about your injury and the other party’s breach of their duty of care.
Keep the receipts for expenses you’ve paid, such as for medication and treatment. Try to obtain medical reports and other documents that prove the impact that your injury has had – and will have on your quality of life.

This includes financial records, medical records, photos, witness statements, emails and other correspondence with the other party. Video – like security camera and dashcam footage can also be strong evidence.

A personal injury lawyer can advise on whether you have enough evidence and can help you collect further proof. They can also work on your behalf to gather this information if you’re still recovering from your injury and can’t do it yourself.

What if you’re partly at fault?

Often, people who’ve suffered a personal injury don’t claim compensation because they were partly at fault. Perhaps they weren’t wearing a seatbelt when their car accident occurred or they disregarded a step in a manufacturer’s instructions for a product.

This is called contributory negligence – when the injured party’s negligence or failure to take reasonable care has contributed to causing their injury. And it doesn’t mean you can’t make a personal injury claim.
You might still have a claim even if you’re partly at fault – it just might be a little more complex. For example, the other party might claim contributory negligence, stating that you owed and breached a duty of care, which resulted in injury to yourself.

If you are found to be partly at fault for your own injury, you’ll be entitled to a percentage or proportion of the compensation you would’ve received, based on the extent of your responsibility.

The important thing is to never assume that you can’t make a personal injury claim at all. We have an expert team of personal injury lawyers who can assess your individual situation and give you the best chance at getting compensation.

What if there is no negligence?

If the other party wasn’t negligent – or you can’t prove it – it will be very difficult to claim compensation for your personal injury. But there may be other avenues we can try.

For example, if the injury is serious enough that you can no longer work, you may be able to claim total and permanent disability through your superannuation. As discussed above, this is a no-fault scheme and most superannuation funds include this benefit in their policies.

If the other party wasn’t at fault in your car accident injury, you might get support from the National Injury Insurance Scheme. This no-fault scheme provides treatment, care and support for eligible people.
And, as discussed, workers compensation is a no-fault scheme that can help pay for medical expenses and wages until you’re ready to get back to work.
Every personal injury case is different, so you shouldn’t assume that you’re not entitled to anything.

Time limits for personal injury

There are strict timeframes for making personal injury claims, which are different depending on the type of claim.

You generally have 9 months from the date of your injury to notify the other party that you’re making a claim. (Or 1 month from the time you instruct your lawyer.) You also have 3 years from the date of injury to make a claim or start court action.

If the symptoms of your injury don’t start appearing until after the incident, your time limit starts when they first appear.

So it’s important to start the personal injury claim process as soon as possible.

Give yourself time to collect all the evidence you need to prove the other party’s negligence.