Negligence

Negligence

A tort where one party fails to provide a level of care to prevent loss or injury to another party, that a reasonable person would have exercised under the same circumstances.

Tort

A catch-all term for a 'wrong' that impacts a person's legally protected rights.

Rights protected by negligence law

Protect an individual's right to be safe from unjust harm, loss or damage.

Limitation of actions

The time limit in which a plaintiff must commence a civil action in court.

Limitation of Actions Act 1958 (Vic)

Legislation that outlines the time limits for commencing civil actions.

Duty of care

A legal obligation to ensure the safety and wellbeing of others.

Reasonable foreseeability

The ability to predict that harm could occur as a result of one's actions.

Neighbour principle

A legal principle stating that one must take reasonable care to avoid acts or omissions that could foreseeably harm others.

Breach of duty of care

Demonstrating that the defendant failed to uphold their duty of care.

Foreseeable risk of harm

The risk of harm that a reasonable person could predict based on the circumstances.

Insignificant risk

A risk that is not substantial enough to warrant concern or precaution.

Precautions

Actions taken to prevent harm or injury.

Possible defences to negligence

Legal arguments that a defendant can use to avoid liability for negligence.

Possible remedies for negligence

Compensations or actions that can be taken to restore the wronged party to their original position.

Impact of breach

The effects that a breach of duty of care has on plaintiffs and defendants.

Time limits for property damage/economic loss

3 years.

Time limits for personal injury

6 years.

Who owes duty of care?

Doctors to their patients, schools/teachers to their students, manufacturers to their consumers, employers to their employees.

Example of negligence

An electronics company rushes the production of its latest smartphone to meet a market deadline, overlooking critical quality control measures, resulting in defective batteries.

Causation

The direct link between the action and its resulting damage or loss to the plaintiff.

Scope of liability

Has there been a break in the chain of liability? Are there other factors that could make it impractical for the defendant to be liable?

Loss

Some sort of loss, injury or damage must occur in order for negligence to exist.

Breach of duty

An act or omission by the defendant that fails to meet the duty of care.

Contributory negligence

This is where the plaintiff has not taken sufficient steps to reasonably care for their own safety.

Voluntary assumption of risk

This may in turn add to the harm they suffer.

Elements of negligence

Duty of care, breach of duty, causation, and loss.

Major contributor

Were the defendant's actions a major contributor to the harm?

Break in the chain of liability

Has there been a break in the chain of liability?

Harm to the plaintiff

The harm suffered by the plaintiff that is the result of the defendant's act or omission.

Physical injury

David suffers loss in the form of a physical injury (ankle) and potentially medical expenses and pain and suffering.

Warning sign

Failing to place a warning sign about the wet floor could be considered a breach of duty.

Foreseeable harm

Taking reasonable steps to prevent foreseeable harm.

Causation in negligence

It needs to be established that the lack of a warning sign directly caused David's fall and injury.

Other factors in causation

Other factors, like David's footwear or walking speed, could also be considered.

Negligence defences

Possible defences include contributory negligence and voluntary assumption of risk.

Defence to negligence

A legal argument that lessens the defendant's liability.

Aggravated damages

Damages awarded in cases where the defendant's behaviour is particularly harmful or reprehensible.

General damages

Damages that do not have a specific value and are less easily quantifiable.

Specific damages

Damages that are measurable and may have a precise value, such as medical bills or lost earnings.

Financial impact on plaintiff

Costs associated with negligence, such as medical fees, lost wages, or legal fees.

Physical injuries

Injuries such as sickness, broken bones, or illness resulting from negligence.

Psychological impact on plaintiff

A range of psychological challenges including fear of participating in events and stress-related issues.

Cultural changes for defendant

Changes prompted by negligence claims to avoid future negligence claims.

Reputational damage for defendant

Impact on the reputation of a defendant whether liable or not.

Financial impact on defendant

Negligence claims can be very expensive, including damages and legal fees.