Civil Liability

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 omissions 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 Act sets out three conditions that must exist before negligence can arise.

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 social utility of the activity that creates the risk of harm.

Each case is determined on its own facts and circumstances applying the principles as 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 you have a claim for compensation under the Civil Liability Act.

To receive compensation, you must notify the person you believe has been negligent and is responsible for the injury you have sustained and that you wish to make a claim for compensation.

In the majority of claims the injury will be covered by insurance and you will receive a response from an insurance company to your claim.

You can then negotiate, with the assistance of a lawyer, a resolution of your claim directly with the insurance company or if you are unable to reach an agreement you must commence a claim for compensation in an appropriate court of NSW.

Compensation under a claim for negligence is called Damages.

Damages is broadly defined to include any form of monetary compensation.

Damages usually includes monetary compensation in the form of:

• Non-economic loss which means a lump sum amount for pain and suffering and loss of enjoyment and expectation of life.
• Economic loss which is compensation awarded for loss of income such as wages and payment of medical expenses.

Damages are payable at the conclusion of a negligence claim as a lump sum amount for both economic and non-economic loss sustained as a result of the injury.

There are 2 broad types of compensation payable:

• Non-economic loss.
• Economic loss.

Non-economic loss

Non-economic loss includes compensation for pain and suffering, discomfort, inconvenience, loss of pleasure derived from work, hobbies and sport, marriage and child bearing, loss of independent, curtailment of life, loss of expectation of life and disfigurement.

You are entitled to receive a lump sum amount of compensation for non-economic loss as determined by a table under the Civil Liability Act in NSW, Your injuries are compared to that of a most extreme case and you are awarded an amount of money based on what percentage of a most extreme case your injury is compared to a most extreme case. The maximum amount payable under the Civil Liability Act is $551,100.00 for 100% of a most extreme case.

Economic loss

Economic loss covers the loss of the following:

• Past and future loss of income.
• Past and future payment of medical expenses.
• Past and future loss for the capacity to care for oneself and dependants.
• Loss of superannuation entitlements.

Payment of compensation or damages is made as a once off lump sum amount at the conclusion of a civil liability claim. The nature and extent of your injuries and how they affect you on a day to day basis will determine the amount of compensation you are entitled to receive.

Negligence claims are finalised by one of two ways:

• Agreement with the negligent party (or its insurer) or;
• An order of a NSW court.

It is normal to give notice of a claim for negligence to the party you consider has been negligent and to negotiate with them (or usually the insurer) a resolution of the claim prior to the commencement of court proceedings. Often claims can be resolved by agreement with an insurance company prior to commencing any court proceedings.

If, however you are unable to resolve a claim by way of agreement then you must file a claim in a NSW court which has jurisdiction to deal with your matter.

Filing a Statement of Claim in the Court commences a formal claim and will after about 10 months (if you have still not been able to reach an agreement) determined by a Judge. The Judge will hear all the evidence and determine if the defendant was negligent, and if so, how much compensation you are entitled to receive.

Yes. There are various time limits depending on the type of negligence claim and how you are injured. Time limits vary considerably depending on the type of matter such as motor vehicle accidents, work accidents, medical negligence claims and public liability claims.

As a broad rule, you should commence a claim within three years from the date of the accident. However, the law is not so straight forward. The three-year period begins and ends at different times for different types of accidents.

For some types of claims there are also preliminary steps that must be taken before you can claim.

For example, to make a claim for a motor accident you must notify the police within 28 days of your accident and then you must lodge a claim form within six months.

For a work accident, you need to notify your employer immediately and lodge a claim within 28 days.

For some other types of negligence claims, you have three years from the date of “discoverability”. That is, the date which you knew or ought to have known that you had a right to make a claim.

For negligence claims, there is also a 12 year long stop limit which means that after 12 years, you can no longer claim.

The law in relation to time limits is as you can see, complex. If you do miss a time limit you can sometimes get an extension of time to commence proceedings from the court. Again, the rule is different depending on the different type of accident you may have.

The best thing to do is to be aware that time limits do exist and to contact a Lawyer who specialises in personal injury as soon as possible if you think you may have a claim.

If you need assistance or would like further information on the Civil Liability Act in NSW, please do not hesitate to contact us as follows;

1. Complete our FREE case assessment form HERE
2. Email us at
3. Give us a call on (02) 8518 1120