U2AOS1 Negligence

tort

a 'wrong' that interferes with a person's legally proteccted interests

Negligence

Arises where somone has failed to take reasonable care that was due to another resulting in a loss or harm

purpose of negligence

Protect an individual's right to be safe from harm and provide them with a way to seek compensation against those who have acted illegally

Donoghue v Stevenson (1932)

Established the law of negligence laws within the UK. When it was determined that a manufacturer owed a duty of care to those who consume their beverages (snail was found in a bottle).

Grant v Australian Knitting Mills (1936)

Followed the persuasive precedent set in Donoghue v Stevenson, thereby establishing the tort of negligence in Australian law (manufacturer owed a DOC to consumer for using chemicals in production of underwear)

4 elements of negligence

duty of care, breach, causation and injury, loss & damage

Elements to establish negligence

DOC: P must establish that the D owed them a DOC

Breach: D must have breached DOC

Causation: The breach must have caused the P harm

Injury, loss and damage: P must have suffered

P must prove that all 4 elements exist in order to successfully claim negligence

duty of care

a legal obligation to avoid causing harm

Duty of care requirments

the risk was foreseeable, the risk was significant or not insignificant and a reasonable person would have, in the same circumstances, taken precautions to prevent risk of harm

DOC Exceptions

Risky recreational activities

Good Samaritan

Volunteers

DOC Exception: Risky recreational activity

Where consumers have signed a waiver to acknowledge responsibility for injuries

DOC Exception: Good Samaritan

A person who provides help and advice in an emergency situation (as long as they acted in good faith within their competence and without payment)

A person who donates food for charitable purposes (must be safe to consume at time)

DOC Exception: Volunteers

Cannot be held personally liable if they cause damage or injury to another

Breach of DOC

Where the D fails to do what a reasonable person would have done in the same situation (standard of care)

Breach of DOC court considerations

the likely risk of harm

the likely seriousness of harm

burden of taking precautions

social utility (benefit) of the risky activity

Causation

the P must prove that the injury or loss was caused by the breach of DOC and wouldn't have otherwise occured without breach

Causation exceptions

If the harm was too remote from the DOC breach

If there has been a break in the chain of causation

Injury, loss or damage

P can only seek a legal remedy if it can be proved with they suffered

Negligence limitation of actions

General: 6 years, starting from date on which the cause of action accrued

Actions involving disease or disorder: 3 years, starting from the date the person first knows of the disease AND that it was caused by the D

Death of personal injury claims: whichever expires first

- 12 years, from the date of the D's conduct

- 3 years, from the date where the action was 'discoverable'

Negligence limitation of actions exception

Child abuse

3 Negligence Defenses

D can claim the P hasn't establish the 4 elements

If all are proven: Contributory negligence or assumption of risk

Contributory Negligence (+ if proved)

When the D feels that the conduct of the plaintiff somehow contributed to any injuries or damages suffered by the P.

If proved, it reduces the amount of damages

Assumption of Risk (+ if proved)

When the P was aware of an obvious risk and they voluntarily chose to take the risk.

If proved, the P receives no damages

damages

an amount of money awarded to the P to be paid by the D

purpose of damages

to compensate the P for losses suffered, so as to return them to to the position they were in prior to the D's actions

types of compensatory damages

specific, general and aggravated

specific damages

damages that can be easily measured monetarily

general damages

damages that cannot be easily measured monetarily

aggravated damages

where the P has been particularly shamed or humiliated when their civil rights were infringed upon

impacts of negligence

P: Loss of life, permanent physical injury, unemployment

D: Loss of business, costs

4 Types of damages

Compensatory, exemplary, nominal and contemptuous

exemplary damages

awarded to punish the D for an extreme infringement of rights

nominal damages

a small amount to someone who suffered a legal wrong but no substantial loss

contemptuous damages

P has a legal claim but shouldn't have brought it to court so they are awarded a very small amount of money