Negligence in compensation claims
In Australia, most accidents that may lead to compensation claims are covered by a statutory scheme (government legislation) or by common law (the law that has evolved from previous decisions of the Courts). The statutory schemes in Australia vary significantly so I will first go through the general principals that apply when a claim is brought for an accident under Common law.
For a claim to have prospects of success it is necessary to establish that another party is partly or wholly at fault for your accident.
By way of example, if I visit my friend Fred at his house and trip over his front doorstep, I am not automatically entitled to make a compensation claim even if Fred has third party insurance. I would need to establish that another party, be it Fred or the builder or designer of the steps was at fault for my accident.
There are a number of elements that have to be proved to establish ‘fault’, the principal element being ‘negligence’. Using the above example, Fred may be negligent if there was a problem with the step that he should have identified and failed to fix or remove the problem or at least provide me with a warning.
Establishing that Fred was negligent is not enough for me to bring a successful compensation claim. There are thousands of acts of negligence that occur every day which do not result in injuries or compensation claims. I have to prove that Fred was both negligent and that his negligence caused me to trip and fall.
It is open to the Court to find that Fred was negligent, but that my own negligence (in not keeping a proper lookout and identifying the problem with the step) contributed to my accident. This is known as a finding of ‘contributory negligence’ and will result in a percentage deduction from any compensation award I receive.
Other accidents are governed by statutory schemes. These include motor vehicle accidents and workplace injuries. The provisions of these schemes vary from State to State so I won’t attempt to specify the various applications. However, under most of these schemes it is possible to make a claim for compensation when no one else was at fault for an accident. In fact it is usually possible to make a claim even when your own negligence caused your injuries.
It is often the case that if you can establish that you sustained a major injury and that another party was at fault for your accident, you will be entitled to a more generous award of compensation under the statutory schemes.
If you or somebody you care about has been injured in an accident through no fault of your own, you may be entitled to compensation. For more information, and to arrange a free no-obligation assessment of your claim, please call Stacks Goudkamp on 1800 25 1800, or alternatively make and online enquiry.
Written by Alexander Morrison.
Alexander Morrison is an Associate and Solicitor in Victoria Roy’s Practice Group. Alex has a varied practice including motor vehicle claims and public liability claims that occur both within Australia and overseas.