For compensation to be payable in a negligence claim, the claimant must prove that they have suffered injury, loss and damage as a result of the negligence. Sometimes the compensation payable is therefore described as damages, and the different categories of compensation payable are referred to as “Heads of Damage”.
Civil claims, as distinct from criminal proceedings, usually involve a claim for compensation or wrongdoing. Most personal injury claims can be described as civil claims.
Civil claims in Australia are generally determined by reference to both legislation and the common law.
The concept of being able to recover compensation for injury, loss and damage caused by the negligence of another was established in the famous case of Donoghue –v- Stevenson  AC 562.
Mrs Donoghue was injured as a result of drinking a ginger beer in Paisley, Scotland. She had almost finished her drink, and was emptying the remains of the bottle in to her glass when to her horror, a badly decomposed snail floated out of the bottle and into her glass. She later became ill and developed severe gastroenteritis.
As Mrs Donoghue’s friend had purchased the drink on her behalf, she was unable to pursue a claim in contract against the manufacturer.
However, the English House of Lords determined that despite the absence of any contract between them, the manufacturer owed Mrs Donoghue, as the consumer, a duty of care which had been breached and she was therefore entitled to damages for the gastroenteritis and shock she had suffered.
The principles of negligence that we apply today were first established with this important case, over 85 years ago, and the body of case law through which the principles of negligence have been expanded and refined is referred to as the common law.
The common law position with respect to negligence has however been modified to some extent by the Civil Liability Act 1936.
Consequently, determination of medical negligence claims involves a consideration of both the common law and legislation.