How do you know if your doctor has been negligent?

Mar 27, 2023 | Publication

Proving that your doctor has been negligent is not always simple.  It’s important to note that not every negative outcome or complication is a result of medical negligence.

Medical professionals are not infallible, and sometimes things can go wrong despite the best efforts of everyone involved. However, if you have concerns about the care you received, it’s important to obtain legal advice from an accredited specialist in personal injury law.

The NSW Civil Liability Act 2002 codifies the requirements necessary to establish negligence.

To establish negligence, you must show that:

  1. Your doctor owed you a duty of care;
  2. Your doctor breached that duty of care (by doing or not doing something);
  3. You have suffered physical or financial harm; and
  4. Your doctor’s breach of duty of care caused that harm.

All hospitals, doctors and nurses have a duty of care to take reasonable care in the treatment they provide.  The duty of care is owed to anyone who could foreseeably be harmed by their actions (or failures to act).  This special relationship between a doctor and patient gives rise to a non-delegable duty of care.

In deciding whether there has been a breach of the duty of care, the first question to be determined is whether a reasonable person in the doctor’s position would have foreseen that his conduct involved a risk of injury to you.

The second question to be determined is what a reasonable person would do by way of response to the risk.  The Court needs to consider whether the risk of harm was foreseeable and whether the risk was not insignificant.

One aspect of proving that your doctor has been negligent is answering the question whether your doctor failed to comply with what is accepted competent professional practice.   The other aspect is to establish that the breach of the duty of care actually caused an injury.  If the injury, loss or damage would have happened regardless of the breach of the duty of care, then no compensation can be claimed.  You must show that it was more probable than not that the breach of the duty of care caused the injury and the loss and damage that flowed from the injury.

If you have concerns about the care you received, it’s important to obtain legal advice from an accredited specialist in personal injury law. McAuley Lawyers has accredited specialists in personal injury law and acts on a no win no fee basis in relation to most personal injury matters.

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources. If you do not wish to receive newsletters from us, please let us know.

Latest Insights

How does the court assess pain and suffering?

In New South Wales (NSW), the assessment of pain and suffering—referred to legally as non-economic loss—is governed by the Civil Liability Act 2002 (NSW) ("CLA"). This is compensation for the intangible effects of the injury, such as pain and suffering, loss of...

Property Disputes – How Can They Arise?

Property disputes arise in many different ways – not only in commercial contexts but also in residential settings.  Some of the types of property disputes include:...

Can a Child under 14 years commit a Crime?

In New South Wales, the age of criminal responsibility is 10 years old.  A child under 10 cannot be charged with a criminal offence. For children aged 10 to under 14, there is a legal presumption known as doli incapax, which assumes the child is incapable of...

Why is it important to know who your client is?

In a range of contexts, it is important to know who your client is. In most professional service contexts, the identity of the client is the starting point to providing advice.  If it is not clear who the professional advisor is advising, this can cause issues as...

Mental Harm Damages Following Birth Trauma: Lessons from Sorbello

In South Western Sydney Local Health District v Sorbello [2024] NSWCA 14, the New South Wales Court of Appeal has provided timely guidance on two important issues in personal injury litigation: how courts choose between competing expert opinions on mental harm, and...

Damages for Defamation – Newman v Whittington [2025] NSWSC 275

A family dispute resolution practitioner was awarded $150,000 in aggravated damages, $10,000 in interest, and an injunction in a recent Supreme Court of New South Wales case. The defendant posted defamatory statements about the plaintiff on WordPress, Facebook, and...

Review Panel Determines Right Hand Injury as Non-Threshold Injury

The Personal Injury Commission (PIC) has ruled in Tasseli v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 49 that damage to pre-existing surgical hardware constitutes a non-threshold injury, entitling the Claimant to ongoing statutory benefits and...

What are 5 legal requirements for a business?

When a new business is set up, there are various legal aspects which should be considered.  Some are more important than others in the early stages.  Obviously the nature of the business will dictate more specific legal requirements. We set out below some...

Court Dismisses Group Proceeding

A significant class action against Waller Legal Pty Ltd has been halted after the Supreme Court of Victoria ruled that the proceeding should no longer continue as a group proceeding. The case, Jane Jones (a pseudonym) v Waller Legal Pty Ltd [2025] VSC 42, involved...