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  • What is negligence?

    A civil negligence case is at its heart a commercial process. The plaintiff commences proceedings against the defendant seeking compensation for losses the plaintiff alleges to have suffered as a result of an act or omission on the part of the defendant.

    To be successful in a medical negligence matter, a plaintiff must prove three elements:

    • that the defendant failed to act with reasonable care and skill in their treatment of the plaintiff, thus breaching their duty of care to the plaintiff (“breach of duty”)
    • that the plaintiff suffered injury (“damage”)
    • that the failure to exercise reasonable care caused the plaintiff’s injury (“causation”).

    We see many combinations of these elements. For example there may be clear breach of duty but no damage (a wrong drug prescription fortunately detected by the pharmacist before the medication was administered); damage without breach of duty (post-operative hemiplegia despite highly competent neurosurgery); or both breach and injury but with no causal link between them (negligent failure to diagnose a malignancy already widely metastatic). Only when the court is satisfied that all elements are proven will the defendant will be found to have been negligent.

    The plaintiff must prove their case “on the balance of probabilities”. This is a lesser standard of proof than the criminal standard of “beyond reasonable doubt”, and generally means “more likely than not”. It is not a scientific standard of proof.

    The role of expert opinion

    A defendant will have breached their duty of care if they departed from the accepted standard of care in their treatment of the patient. To prove their case, a plaintiff needs to have the opinion of an expert (another doctor) to this effect.

    The defendant will have a defence to a claim they breached their duty of care if they acted in accordance with widely accepted competent professional practice at the time the service was provided. This an issue question for expert opinion.

    Expert opinion is often also required on the question of causation (whether the act or omission caused the injury) and on damages, particularly the extent of the plaintiff’s injuries and harm suffered.