The law of negligence in NSW is now modified by the Civil Liability Act 2002 (NSW).

An essential element of negligence is the existence of a duty of care. The courts over the years have accepted categories of duty of care, or that a special relationship exists between parties, that a person must take reasonable care to avoid acts or emissions which are likely to injury another in such a relationship.

Examples would be an employee and an employer, an occupier and an entrant upon premises, a doctor and patient, a school and its students. These are the most common categories.

In most cases there is little issue that a duty of care exists as most injuries would fall under an accepted category where a duty exists.

The Civil Liability Act then sets out three (3) conditions that must exist before negligence arises.

A person is not negligent in failing to take precautions against a risk of injury unless:

• It was a risk of which the person knew or ought to have known
• The risk was not insignificant
• A reasonable person in the circumstances would have taken those precautions

When considering these matters the court must take into account the following:

• The probability of the harm occurring if care were not taken
• The likely seriousness of the harm
• The burden of taking precautions to avoid the risk of harm
• The benefit to society of the activity that creates the risk of harm

Each case is determined on its own facts and circumstances applying the principles as we have outlined above.

The law of negligence is complex and you will need the assistance of a Lawyer who is an expert in personal injury law to advise you whether or not you have a claim for compensation under the Civil Liability Act.