Elements of Negligence and Civil Law

Negligence

Negligence

Laws relating to Negligence aim to ensure that people who owe reasonable duties of care to each other do not breach those duties. If they do, they are responsible for any loss suffered as a result.

Duty of Care

The obligation to take reasonable care to avoid causing harm to others.

Breach of Duty of Care

A breach of a duty of care occurs when a person does not take all the care they should. The duty is breached (broken) when the defendant fails to do what a reasonable person would have done. 

Causation

The plaintiff must prove that the injury or loss was caused by the breach of duty of care.

Remoteness of Damage

The breach must be a significant cause of the damage suffered by the plaintiff.

Reasonable Foreseeability

Determines if a person should have anticipated that their actions could cause harm to others.

Established Categories

Categories where a duty of care is presumed, such as doctor to patient and manufacturer to consumer.

Defendant

Party defending against a claim for an alleged breach of civil law.

Vicarious Liability

When an employer is held responsible for the actions of an employee.

Plaintiff

Party initiating a civil claim against the defendant for a breach of civil law.

Class Action

A civil proceeding where 7 or more people have claims against the same person.

Loss

Harm suffered, including financial, property, injury, pain

Limitation of actions

Legal time frame to initiate a civil claim

Standard of proof

Degree to prove facts in court, 'balance of probabilities'

Breach

Failure to meet a legal obligation

Remedy

Court order to enforce or correct a civil breach

Injunction

Court order to prevent or compel an action

Damages

Monetary compensation for losses or harm. There is Aggravated, specific, general damages

Contract laws

Law aims to ensure that people who make promises under a contract (agreement) stick to those promises, or else compensate the other party to the contract if they fail to comply with it.

Wills

Legal documents outlining asset distribution after death

Nuisance

Laws relating to Nuisance recognise that people should have a right to enjoy and use their land, or public land, free from interference or annoyance. Their purpose is to ensure that people can enjoy this right, by establishing guidelines on what counts as an interference or annoyance. 

Defamation

Laws relating to defamation aim to ensure that a person’s reputation is not harmed because of false statements that are made about that person.

Contributory Negligence

Contributory negligence is a failure by a person, typically a plaintiff, to take reasonable care for their own safety, which adds to the harm the person suffers. 

Assumption of risk

Voluntary assumption of risk is a defence to negligence in which it is claimed the plaintiff accepted and was aware of the risks inherent in the activity. 

 IMPACT OF NEGLIGENCE ON THE PLAINTIFF

• Loss of life – This could occur in a workplace setting. For example, an employer fails to maintain machinery so that it is in good working order which causes a fatal accident.
• Permanent physical incapacity – This could require the use of personal carers for the remainder of the person’s life. For example, a person contracts salmonella from the consumption of poorly prepared food and permanently loses physical capacity as a result.
• Serious physical injury – This could require treatment such as surgery and physiotherapy. For example, a customer who trips on a slippery floor and breaks a leg as a result.
• Emotional impact of the breach – This could manifest as fear of certain places or engaging in social situations. For example, a person develops a fear of medical procedures after a negligent experience.
• Loss of wages and livelihood – This could be a consequence of requiring surgery or treatment. For example, a person is unable to return to work for a certain time after surgery.
• Unemployment – This could be a consequence of physical injury or mental health issues. For example, an electrician is unable to return to work after losing physical capacity.
• Effect on mental health – This could include conditions such as depression or anxiety. For example, a person develops mental health issues as a result of being unable to return to work.

 IMPACT OF NEGLIGENCE ON THE DEFENDANT

• Loss of business – This could be a consequence of the publicity of the claim. For example, a restaurant or café that was sued as a result of the death or injury of a customer from consuming contaminated food.
• Public humiliation – This could be a consequence of the publicity of the claim. For example, the defendant might suffer public humiliation as a result of an adverse finding in court.
• Physical injury – This could occur in cases of contributory negligence or a counterclaim. For example, the defendant might also have suffered loss, injury or damage as a result of the conduct of the plaintiff.
• Costs – This could occur when the defendant loses the case. For example, the defendant might be ordered to pay the legal costs of the plaintiff, causing financial hardship.
• Need to sell assets – This could be a consequence of a high damages award. For example, the defendant might be forced to sell assets to meet the costs of the damages amount.

But for test

The ‘But for test’ is a legal test of causation that aims to determine whether a party would have suffered harm/injury if not otherwise for the actions of another party.

Statuary limitations

  a personal injury claim such as negligence= 3 years

breach of contract= 6 years

Defamation=12 months

Burden of proof

The responsibility to prove the allegations made.

The burden is held by the plaintiff who is bringing the claim.

Wrongdoer

It is often the case that the plaintiff will sue the person or company that has directly caused the loss or damage to the plaintiff (often called the wrongdoer), being the person who is alleged to have caused harm to the plaintiff.

Sometimes there may be two wrongdoers, and both of them may become liable for loss or damage suffered by the plaintiff. 

neighbour principle

The 'neighbour principle' is a legal concept that suggests individuals should avoid actions that could harm people who are closely and directly affected by those actions. It was established to help determine when a duty of care is owed in negligence cases.

Specific damages

Damages that can be accurately calculated.

E.g Lost wages, medical bills, replacement/repair of property

General damages

Damages that cannot be accurately calculated.

E.g Loss of enjoyment of life , pain + suffering

Aggravated damages

an ‘extra’ award of damages to further compensate the plaintiff for humiliation/hurt caused by an actions of the defendant.

Civil Remedies

Primary purpose = restore the injured party to their original position

Another purpose = to compensate for injury, loss or damages

IMPACT OF NEGLIGENCE ON THE PLAINTIFF

• Loss of life – This could occur in a workplace setting. For example, an employer fails to maintain machinery so that it is in good working order which causes a fatal accident.
• Permanent physical incapacity – This could require the use of personal carers for the remainder of the person’s life. For example, a person contracts salmonella from the consumption of poorly prepared food and permanently loses physical capacity as a result.
• Serious physical injury – This could require treatment such as surgery and physiotherapy. For example, a customer who trips on a slippery floor and breaks a leg as a result.
• Emotional impact of the breach – This could manifest as fear of certain places or engaging in social situations. For example, a person develops a fear of medical procedures after a negligent experience.
• Loss of wages and livelihood – This could be a consequence of requiring surgery or treatment. For example, a person is unable to return to work for a certain time after surgery.
• Unemployment – This could be a consequence of physical injury or mental health issues. For example, an electrician is unable to return to work after losing physical capacity.
• Effect on mental health – This could include conditions such as depression or anxiety. For example, a person develops mental health issues as a result of being unable to return to work.

IMPACT OF NEGLIGENCE ON THE DEFENDANT

• Loss of business – This could be a consequence of the publicity of the claim. For example, a restaurant or café that was sued as a result of the death or injury of a customer from consuming contaminated food.
• Public humiliation – This could be a consequence of the publicity of the claim. For example, the defendant might suffer public humiliation as a result of an adverse finding in court.
• Physical injury – This could occur in cases of contributory negligence or a counterclaim. For example, the defendant might also have suffered loss, injury or damage as a result of the conduct of the plaintiff.
• Costs – This could occur when the defendant loses the case. For example, the defendant might be ordered to pay the legal costs of the plaintiff, causing financial hardship.
• Need to sell assets – This could be a consequence of a high damages award. For example, the defendant might be forced to sell assets to meet the costs of the damages amount.

Elements required to establish liability

For a claim in defamation to be successful, five elements must be proven in court on the balance of probabilities:The matter is defamatory, The matter is false, The matter is about the plaintiff, The matter has been published to a third party, The matter has caused, or is likely to cause,serious harm to the plaintiff's reputation

1. The matter is defamatory

• What is an imputation?

*Allegation

*inference

=of undesirable behaviour

2. The matter is false

• What does it mean to be “substantially true”?

Something is “substantially true” in defamation law when it is true in essence or not materially different from the truth.          

3. The matter is about the plaintiff

• Does the plaintiff have to be expressly named? Explain.

No, the plaintiff does not have to be expressly named as long as they can be sufficiently identified from the context of the claim. Courts require that the plaintiff is identifiable either directly or indirectly through the details provided in the case.

4. The matter has been published to a third party

What does this really mean?

When the matter has been published to a third party, it means that the information has been communicated to someone other than the plaintiff and defendant.

List the things that can constitute “published”.

Things that can constitute "published" include:

1. Spoken words

2. Written statements (e.g., books, articles, letters)

3. Digital communications (e.g., emails, social media posts, blogs)

4. Broadcasts (e.g., television, radio)

5. Visual representations (e.g., pictures, cartoons)

6. Gestures or non-verbal signals

5. The matter has caused, or is likely to cause,serious harm to the plaintiff's reputation

Who decides this?

A judge decides if the matter has caused or is likely to cause serious harm to the plaintiff's reputation.

When is this decided?

This is decided during the preliminary stages of the defamation case or during the trial.

What happens if this element is not satisfied?

If this element is not satisfied, the defamation claim will be dismissed.

What is considered when deciding if this element has been satisfied?

Factors considered include:

1. The nature of the statement.

2. The context in which it was made.

3. The extent of publication.

4. The reputation of the plaintiff before the statement.

5. The impact on the plaintiff's personal and professional life.

Substantial Truth

the majority of the statement was true, with only small/inconsequential inaccuracies

Contextual truth

in context (when considered or part of the entire statement). The statement does not damage the plaintiff reputation

Mandatory injunctions

an order to do something

Restrictive injunctions

an order preventing something