Negligence claims
Negligence is not simply somebody being careless. It is a claim with four parts, and all four have to be established before a court will order anyone to pay anything.
General information, not legal advice. This page sets out how the law generally applies. It does not take account of your circumstances, and you should get advice about your own situation before acting on it. The official sources this page is written from are listed on it; where they differ from anything here, they are the authority.
Careless is not the same as liable
People come to a page like this after something has gone wrong and somebody else seems responsible: property damaged, money lost on bad advice, a business decision made on a report that turned out to be wrong, an injury on someone else’s premises. The instinct is to ask how much the claim is worth. The better first question is whether there is a claim at all.
A negligence claim has four parts and every one of them has to be made out. There must be a duty to take reasonable care owed to you. That duty must have been breached — and under section 5B of the Civil Liability Act 2002 (NSW) that involves whether the risk was foreseeable, whether it was not insignificant, and whether a reasonable person would have taken precautions. The breach must have caused your loss, which section 5D treats as two separate questions. And the loss must be of a kind the law compensates.
That structure is why a matter that feels obvious can still fail. Somebody can behave badly without having owed you a duty. A duty can be breached without causing the loss you actually suffered. A loss can be real and still be too remote, or purely economic in a situation where the law does not allow recovery. An honest assessment goes through all four before it talks about figures.
Timing matters here more than in most areas. Section 14 of the Limitation Act 1969 (NSW) sets six years for a cause of action founded on tort, running from when the cause of action first accrues, but personal injury and several other causes of action run on different and sometimes much shorter periods under the same Act, and some categories of claim are dealt with under separate statutory schemes entirely. If anyone has been injured, or if the events are more than a year or two old, say so at the very start.
What the work actually is
Testing the four elements honestly
Duty, breach, causation, loss, in that order and against what you can actually prove. If the claim fails at one of them, the useful thing is to be told early rather than after a year of costs.
Identifying who is actually responsible
Often more than one party is involved: an occupier, a contractor, a manufacturer, a professional adviser, an insurer. Who to sue, and in what capacity, changes both the prospects and the chance of actually recovering.
Checking the clock first
Which limitation period applies under the Limitation Act 1969 (NSW), when it began to run, and whether a separate statutory scheme with its own timetable governs the claim. This is done before anything else because it can close options.
Getting the right evidence early
Photographs, incident reports, maintenance records, expert opinion and contemporaneous notes. Evidence in negligence matters degrades quickly: records are destroyed, scenes are repaired and memories move.
Valuing the loss realistically
What is actually recoverable, what the Civil Liability Act 2002 (NSW) limits, and what any reduction for contributory negligence would do to the result. A realistic range at the start is worth more than an optimistic figure.
Defending a negligence claim
The same analysis from the other side: whether a duty was owed, whether the statutory test for breach is met, whether causation is established, and whether the claim is within time.
Questions people ask first
Someone was careless and I lost money. Is that negligence?
Not on its own. There must have been a duty to take reasonable care owed to you, that duty must have been breached applying the test in section 5B of the Civil Liability Act 2002 (NSW), the breach must have caused your loss on the principles in section 5D, and the loss must be of a compensable kind. Carelessness that caused you loss but breached no duty owed to you is not a claim.
How long do I have?
Section 14 of the Limitation Act 1969 (NSW) sets six years for a cause of action founded on tort, running from when the cause of action first accrues. Personal injury and certain other causes of action run on different periods under that Act, some of them much shorter, and some claims fall under separate statutory schemes with their own limits. Do not work out your own deadline from a website — raise the dates at the first opportunity.
I was partly at fault. Does that end my claim?
Usually not, but it can reduce what you recover. Where your own failure to take reasonable care for yourself contributed to the harm, damages can be reduced for contributory negligence, and the reduction can be substantial. It is better to raise it yourself at the start than to have it raised against you later.
Can I claim against a professional who gave me bad advice?
Claims against professionals are negligence claims with extra layers: what the retainer covered, what a competent professional in that field would have done, and whether the loss flows from the advice rather than from the commercial risk you took. They almost always need expert evidence, and that is a cost to plan for.
I was injured in a car accident or at work. Is this the right page?
Probably not. Motor accident injuries and workplace injuries in New South Wales are dealt with under separate statutory schemes with their own procedures, their own notification requirements and their own time limits, rather than as ordinary negligence claims. Tell us what happened and we will point you to the right process quickly.
The other side has insurance. Does that make it easier?
It usually makes recovery more realistic, which matters, but it does not make liability easier to establish. An insurer will test each of the four elements, and often does so thoroughly. It does mean that a claim which is genuinely strong is more likely to be worth running to a conclusion.
What will it cost to find out whether I have a claim?
An initial assessment of duty, breach, causation and limitation is usually a contained piece of work, and we set out what it will cost before it starts. Expert evidence, where it is needed, is the expensive part, and we would rather discuss that before commissioning it than after. See our costs page.
What to bring
Negligence claims are made or lost on contemporaneous records. Bring whatever exists from the time, however incomplete.
- What happened, in order, with dates — written down before you come in if you can.
- Photographs or video from as close to the event as possible.
- Any incident report, complaint, maintenance record or correspondence from the time.
- The contract, retainer or engagement letter, where the claim is about advice or services.
- Every document showing your loss: invoices, quotes, repair accounts, financial records.
- Names and contact details of anyone who saw what happened.
- Any report you have already obtained from an expert, engineer or assessor.
- Anything the other party, or their insurer, has said or written to you.