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Making a successful personal injury claim in Australia usually involves successfully establishing the requirements set out in the law of torts. More often than not, some form of negligence must be proven to have caused the injury. Damages are then assessed and awarded to the successful claimant.
Neglience under Australian law is formulated as a breach of the duty of care one person owes to another. In other words, the claimant must show that his opponent has breached the duty of care owed by the latter to the former. However, in most personal injury cases, it is not disputed that the defendant owes a duty of care to the plaintiff. What is usually in question is the standard of care owed to the claimant.
Factors that can influence a court’s decision as to the standard of care include state legislation, reasonable foreseeability of the injury or damage, whether the defendant had any sort of obligation, whether the accident or damage apart from being reasonably foreseeable was in fact probable, whether the plaintiff was aware of the gravity of the situation or possibility of accident or injury, and whether avoiding negligence would in fact have been practicable. The court may also consider what a reasonable person would have done.
Causation is an essential factor that must be proven before a defendant can be held responsible for the injuries of a claimant.
The court will be interested in determining whether the accident or injury would still have occurred but for the defendant’s act or omission. A defendant whose negligent act or omission sets off a long chain of events ending in damage might not be liable for the damage due to an unforeseeable intervening event somewhere in this chain of events.
While technically, a plaintiff’s act or omission might have led to damage or injury being suffered, courts will also consider whether the damage is too remote to be attributable to the defendant. The full extent of the injury suffered may not be attributed to the defendant due to factors such as the foreseeability of damage to the plaintiff, for instance if the plaintiff could have reasonably foreseen that he would suffer injury and had acted carelessly nonetheless. The defendant should also only be held responsible for the extent of damage that he could have reasonably foreseen.
There are various types of damages that the court may award to a successful claimant. In personal injury suits, the claimant is usually hoping to obtain compensatory damages for the personal injury suffered.
As a general rule, the court will try to put the claimant back in the position he would have been had the injury not occurred. Damages must be paid out as a lump sum upon closure of the suit and cannot be paid out over extended periods of time. The plaintiff shoulders the burden of proof of the injury for which he hopes to be compensated. Once awarded, the plaintiff has absolute liberty to choose what do with the damages awarded to him and need not use them to rectify or alleviate the injuries for which he was compensated.