How to know if your doctor has been negligent

Aug 23, 2022 | Publication | 0 comments

Hospitals are often under resourced and doctors and nurses are being required to work onerous hours under significant stress. The law in medical negligence plays an important role in ensuring that each individual is duly compensated but also provides a financial incentive for Hospitals and doctors to act in accordance with the law.

The Civil Liability Act 2002 (NSW) has the effect that a doctor is negligent if he/she fails to take precautions against a risk of harm, the risk of harm was foreseeable, was not insignificant and a reasonable person in the person’s position would have taken those precautions.

In considering whether a reasonable person would have taken precautions against a risk of harm, the following factors are considered:

1. the probability that the harm would occur if care were not taken;
2. the likely seriousness of the harm;
3. the burden of taking precautions to avoid the risk of harm;
4. the social utility of the activity that creates the risk of harm; and
5. the burden of taking precautions to avoid the risk of harm.

The next consideration is whether your doctor acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice. To establish this, it is necessary to obtain an expert report from a relevant medical professional. This is a burdensome and expensive obstacle to overcome as expert reports can be expensive.

If an individual has a medical negligence concern, it is always recommended that they obtain legal advice.

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...