In a situation where due care is not observed, and it results in quantifiable economic losses to the victim, the victim has a ground to commence civil proceedings against the tortfeasor to recover such economic losses. To do so, the victim must satisfy the court that:

• The tortfeasor owes him/her a duty of care;
  The tortfeasor breached the duty of care;
• The victim suffered quantifiable economic losses;
• The quantifiable economic losses are directly caused by the tortfeasor’s breach of his/her duty of care;
• The quantifiable economic losses are reasonably foreseeable by the tortfeasor;
• The quantifiable economic losses are not too remote; and
• The victim’s own negligence did not contribute to the situation.

Duty of care

Whether or not a tortfeasor owes a duty of care to the victim, is a matter of law. The Australian common laws have defined clear categories of person-person relationships to which the duty of care applies, albeit they usually apply to most ordinary relationships from which a negligence claim could arise.

Breach of duty of care

The tortfeasor must also have breached the duty of care, which requires his/her conduct to fall short of what is ordinarily expected of him in his position, when he engaged in the negligent conduct. For example, a driver is ordinarily expected to drive carefully in his own lane; a waiter/waitress is ordinarily expected to carry a tray of hot food steadily; a lawyer is ordinarily expected to advise his client not to miss court appearances; and an electrician is ordinarily expected not to leave exposed wires hanging in the house etc.

Quantifiable economic losses caused by the tortfeasor that is not too remote

Just because a tortfeasor engaged in negligent conduct, does not automatically mean that the victim will have a 100% success case against the tortfeasor. The victim must be able to prove that s/he has suffered actual economic losses, and the losses are caused by the negligent conduct, and that the losses are foreseeable by the tortfeasor.

Contributory negligence

Further, the victim must not have contributed to his/her own losses by reason of his/her own negligent contribution to the situation. For example, a road user who is hit by a negligent driver contributed to the situation if s/he was recklessly driving him-/herself; a restaurant patron must not have recklessly pushed the waiter/waitress to cause the hot food to be poured onto him/her; a lawyer may not be responsible for a client missing his court appearance, if s/he told the lawyer the wrong case number to begin with; and residents of a house must also not mishandle wirings and cablings to unnecessarily increase the likelihood of the wires being exposed.

Practical application

In practice, the hardest elements to prove for the victim are damages, causation, and the absence of contributory negligence. These are technical issues that turn heavily on evidence and legal assessment.

If you suspect that you may be a victim in a negligent lawsuit, please contact us for more information.