What constitutes Medical Negligence?

All professionals, whether they be a doctor, architect or even a lawyer, is bound to provide their services in accordance with the standard of care as identified under the Civil Liability Act, 2002.

The Civil Liability Act codified the common law which imposed upon the expert an onerous obligation to take all reasonable care in and about the provision of their services to either their patients or clients, and if there was a breach of that duty of care, the expert would be liable in damages.

With respect to a medical negligence claim, Section 5O of the Civil Liability Act clearly provides the standard of care that is imposed upon the healthcare professional with respect to the services they provide to their patients. In essence, Section 5O provides:

  • A professional is not to be held negligent with respect to the provision of their services, if it is established that the professional acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice.

  • The peer professional opinion relied upon cannot be irrational.

  • The fact that there are differing peer professional opinions concerning a matter does not prevent any one or more of those opinions being relied upon.

  • The peer professional opinion does not have to be universally accepted to be considered widely accepted.

Therefore, to establish that a treating healthcare professional has been negligent, there needs to be expert opinion available from a peer professional to prove that the service provided by the healthcare professional did not meet the level of competent professional practice as widely accepted in Australia.

In the event that a successful claim is brought against a healthcare professional, the patient would be entitled to recover damages which would include compensation for non-economic loss (pain and suffering), any economic loss both past and future, medical expenses both past and future, the value of care or gratuitous assistance provided by friends or family members (subject to a threshold of care required before an award of damages can be made) as well as a significant contribution towards the legal costs of the patient.


Brydens Lawyers are experts in the prosecution of all medical negligence claims. For a risk free, no-obligation assessment of any claim that may be available to you, contact Brydens Lawyers without delay as strict time limits apply. Call Brydens Lawyers today on 1800 848 848 or contact us at brydens.com.au. Brydens Lawyers – #WEDO medical negligence claims.