How To Prove Negligence in a Car Accident Compensation Claim

Reckless driving occurs every day on our roads. If you’ve been involved in a car accident due to negligence, that alleged negligence must be proven.

This article examines how to prove negligence in a car accident compensation claim.

What Amounts to Negligence in Queensland?

Simply put, negligence occurs when someone is reckless, careless, or acts with less than the required skill anticipated by someone in their position. This leads to damage or injury to another person (the claimant).

It can happen due to an act or the failure to act. 

What Elements Should Be Proven?

Three elements must be present to prove negligence successfully:

  • A duty of care must exist;
  • That duty must have been breached; and
  • Such breach must have caused damage or injury to the claimant.

Supporting documents such as witness statements and medical reports can be used as evidence.

What Is a Duty of Care?

A duty of care is established whereby it can reasonably be foreseen that an act or failure to act would probably lead to injury of another person. 

If there is a duty of care, there is a responsibility on the person who owes that duty to undertake it or perform it to a reasonable standard. Failure to do so results in a breach of the burden of care.

When Is a Duty of Care Owed?

The legislation recognises many relationships which give rise to a duty of care.

One such relationship is that between drivers and all other road users. Drivers must exercise the necessary duty of care to other road users.

When Does a Breach of the Duty of Care Occur?

A breach of duty occurs if:

  • The driver knew or should reasonably have known of the risk of harm;
  • The risk was not small; and
  • A reasonable driver in that position would have taken steps to ensure the risk did not materialise.

Whether there was a breach of the duty of care is examined case by case.

The court will examine whether a reasonable person would have taken steps to ensure the risk did not materialise. Factors taken into account are: 

  • How likely it was that harm would occur if the driver did not take due care;
  • How bad the damage was likely to be;
  • The burden of taking steps to avoid injury; and
  • The social utility of the act or omission.

All these factors will be assessed before a determination is made.

What Can You Claim?

All compensation claims are looked at individually. The compensation amount depends on the kind and effects of your injury and your specific circumstances. The payment you have a right to may be decreased if you share the blame.

Your claim could include the following:

  • Medical treatment costs;
  • Rehabilitation; 
  • Loss of past and future earnings;
  • Care services costs; and
  • General damages (pain and suffering) if your injury is severe enough to warrant that.

You might be entitled to claim further expenses according to your personal circumstances. 

You can speak to the insurer or lawyer if you have any uncertainties.


A car accident can leave you with severe injuries and the devastating financial burden that comes with it.

When you claim compensation, you must prove that it was the driver’s fault or that they acted negligently. To maximise your payout, contact a lawyer to discover the crucial actions to take after a car accident to maximise your compensation.

Tony Bennett

Tony Bennett

Tony Benett makes his living in the insurance industry by teaching and consulting. He is also recognized by the legal profession as an expert on insurance coverages. His insurance experience includes having worked at the company level, owned an independent general agency and having worked for an insurance association. He has received various certificates over the past few years and helps his clients and readers by giving them a realistic outlook on what they can expect to achieve within their set targets. At Insurance Noon, he is known for his in-depth analysis and attention to details with accuracy. He has been published as one of the most referred agents by his peers in the insurance community. Tony loves the outdoors and most sport events. His passion other than providing excellent advice is playing golf.

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