negligence 2.1

negligence

negligence is a type of tort that involves the failure to take reasonable care to avoid any act or omission that may be reasonably forseen to cause injury or harm to another person.

right protected negligence

the right to be treated with care and safe from harm

source of law: negligence

wrongs act 1958 (vic) and common law

limitation of actions: negligence

General negligence claims - 6 years

negligence claims involving a personal injury: 3 years from the date the cause of action is discoverable, or 12 years from the date the act/omission occured, whichever is earlier

remedies of negligence

damages: monetary compensation paid by the defendant to plaintiff

1. elements of negligence: defendant owed a duty of care to the plaintiff

a duty of care is an obligation to take reasonable care to avoid acts/omissions that can reasonably be forseen to cause harm/injury to another person.

established duty of care

road users to other road users/pedestrians, manufacturers of goods to their customers, people in positions of responsibility over others, such as doctors to patients, parents to children, teachers to students

not an established duty-neighbour principle

any person who is so closely and directly affected by the defendants actions that the defendant ought to have them in their mind

2. elements of negligence: defendant breached the duty of care

a duty of care is breached when a defendant fails to act as a reasonable person would in the same situation

determination of whether defendant lived up to standard of care expected

it does this by determining whether a reasonable person would have taken precautions to avoid the risk of harm. in doing so the court looks at: probability of harm occuring (high, med, low), the likely seriousness of the harm (high, med, low), the burden/practicality of taking precautions to avoid the risk of harm (high, med, low), the social utility of the activity that creates the risk of harm

3. plaintiff suffered loss that was caused by the defendants breach

the plaintiff must prove that they suffered a recognized loss that was caused by the defendants breach.

remoteness of damage

principle that a defendant is not liable for all damage caused by their negligence, only damage that is reasonably foreseeable. if the risk of harm is so far fetched, the defendant may not be liable

eggshell skull rule

states that the defendant must take the plaintiff as they find them, even if the plaintiff has a pre existing condition that made them predisposed to serious injury

defences of negligence: contributory negligence

when the plaintiff failed to ensure their own safety, and therefore contributed to the loss/harm they suffered. may act as a complete or partial defence (reduces damages)

defences of negligence: voluntary assumption of risk

voluntary assumption of risk is where the plaintiff willingly consented to the risk that caused their injury and fully appreciated the dangers involved in the activity. acts as a complete defence

defences of negligence: illegality

where the plaintiff was involved or aware in an illegal activity that resulted in their loss. acts as a complete or partial defence depending on the circumstances.

defences of negligence: absence of negligence element

the defendant may claim that one or more elements of negligence have not been proven by the plaintiff. acts as a complete defence