Negligence is a cornerstone of Australian tort law, governing situations where individuals or businesses fail to exercise reasonable care, resulting in harm to others.
Whether you’re a business owner, professional, or individual, understanding negligence is essential to protecting your rights and obligations under Australian law.
This article is written by a commercial contracts lawyer and provides a detailed overview of negligence, incorporating recent case law and legal developments.
Key Takeaways
- Negligence arises when a duty of care is breached, causing harm or damage
- Four elements must be established to prove negligence, including duty of care, breach, causation, and damages
- A duty of care exists in relationships with sufficient proximity, such as doctor-patient or employer-employee
- Recent case law highlights the importance of causation and the standard of care
- Claims for personal injury due to negligence are subject to strict statutory time limits

What is Negligence?
Under Australian law, negligence occurs when a person or entity fails to take reasonable care to avoid causing harm to another party to whom they owe a duty of care. Negligence can arise from either an act or an omission.
Negligence is a cause of action under tort law, which deals with civil wrongs. To succeed in a negligence claim, the applicant must prove that the respondent breached their duty of care, resulting in harm or damage.
Elements of Negligence
To establish negligence, the following four elements must be proven:
- Duty of Care: Did the respondent owe the applicant a duty of care?
- Breach of Duty: Was the duty of care breached by failing to meet the required standard?
- Causation: Did the breach directly cause the harm or damage?
- Damages: Did the applicant suffer injury or loss as a result?
Failure to satisfy any of these elements will result in the claim being unsuccessful.
When is a Duty of Care Owed?
A duty of care arises when there is a relationship of sufficient proximity between the parties. Examples include:
Relationship | Duty of Care Owed |
Doctor and Patient | Provide competent medical care. |
Solicitor and Client | Act in the client’s best interests. |
Employer and Employee | Ensure a safe working environment. |
Manufacturer and Consumer | Supply safe and defect-free products. |
Road Users | Drive with reasonable care to avoid accidents. |
The existence of a duty of care depends on the nature of the relationship and whether harm was reasonably foreseeable.
Breach of Duty: The Standard of Care
The standard of care is determined by what a reasonable person would do in similar circumstances. For professionals, the standard is higher and assessed against their peers’ conduct in the same field, as outlined in the Civil Liability Act 2002.
Courts consider factors such as:
- the likelihood of harm
- the seriousness of potential harm
- the burden of taking precautions
Causation and Damages
Causation requires proving that the breach of duty directly caused the harm. This can be straightforward or complex, depending on the circumstances. For example:
- Clear Causation: A person slips on an unmarked wet floor and breaks their arm.
- Complex Causation: A person injures their arm after slipping on a wet floor but had a pre-existing injury from an earlier fall.
Damages must also be quantifiable, such as medical expenses, loss of income, or pain and suffering.

Recent Case Law on Negligence
Jackson v McDonald’s Australia Ltd [2014] NSWCA 162
This case emphasised the importance of causation. While McDonald’s breached its duty by failing to mop up a wet floor promptly, the court found that Mr Jackson contributed to his injury by ignoring warning signs and not using handrails.
Ardent Leisure Group Limited (Dreamworld Tragedy)
In 2020, Ardent Leisure was fined $3.6 million for breaching its duty of care under the Work Health and Safety Act 2011 (Qld). The court found gross negligence in maintaining ride safety standards, leading to the tragic deaths of four patrons in 2017.
Hill v Zuda Pty Ltd [2022] HCA 21
The High Court clarified the scope of duty owed by employers to employees in high-risk industries, reinforcing the need for proactive safety measures.
Time Limits for Negligence Claims
In most Australian jurisdictions, claims for personal injury due to negligence must be filed within three years from the date of injury. This is set out in the Limitation of Actions Act 1974 (Qld) and equivalent legislation in other States. Exceptions may apply in cases involving minors or latent injuries.
Frequently Asked Questions (FAQs)
What is the difference between negligence and gross negligence?
Negligence involves failing to take reasonable care, while gross negligence refers to a severe lack of care that shows reckless disregard for others’ safety.
Can I claim for emotional distress caused by negligence?
Yes, if emotional distress is a recognised injury and can be directly linked to the breach of duty.
What happens if both parties are partially at fault?
Under contributory negligence, damages may be reduced proportionally based on each party’s level of fault.
Are there any defences to negligence claims?
Common defences include contributory negligence, voluntary assumption of risk, and lack of causation.
How much compensation can I receive for a negligence claim?
Compensation depends on factors such as the severity of the injury, financial losses, and pain and suffering. Courts assess each case individually.