Negligence

Negligence

Negligence

•failure to take reasonable care to avoid foreseeable harm to other people and their property.

Main purpose of negligence laws

Compensate victims who have suffered loss.

Deter members of our society from engaging in unsafe behaviour.

Three elements

•The defendant owed a duty of care to the plaintiff

•The defendant must breach this duty by failing to meet the required standard of care

•The plaintiff suffered injury, loss or damage as a result of that breach.

Duty of care defintion

The legal responsibility owed by a person to take reasonable care not to harm another person”.

How to decide if defendent is owed a duty of care?

The judge asks, “Was the plaintiff the legal neighbour of the defendant?”The neighbour principle provides

the test for establishing whether there is a duty of care owed by one person to another

Donoghue v Stevenson [1932]

The defendant owed a duty of care to the plaintiff and had breached that duty in manufacturing the product in question.

The decomposed remains of a snail fell from the bottle. The plaintiff suffered shock and gastro-enteritis (stomach upset).

Legal Neighbour principle

Legal Niehbour is persons who are so closely and directly affected by my act

Must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.

2 requirements of legal Neighbour Principle

• proximity requirement

• foreseeability principle

Foreseeability

• court essentially makes a judgement about what a reasonable person in the shoes of the defendant should have been able to foresee would be the result of his or her actions. Courts use precedent (previously decided cases) to help decide what is reasonably foreseeable.

Proximity

•Physical Proximity

•Circumstantial Proximity

•Causal Proximity

Phyisical Proximity

Physical Proximity (in the sense of space and time between the person or property of the plaintiff and the person/property of the defendant)

Circumstantial Proximity

(this includes the relationship of employer and employee and of a professional person and his/her client)

Causal Proximity

(closeness or directness of the actions of the defendant to the loss or injury sustained. Post-accident trauma or nervous shock often falls within this third class and in the most difficult to prove)

How to prove 1st element

• defendant will owe duty of care to plaintiff if reasonable foreseeability test is met.

• defendant must avoid acts or omissions that are reasonably foreseeable to injure a legal neighbour

What is element 2

• Breach of Duty of Care

Civil Liability Act 2003 (Qld)

The Civil Liability Act QLD is applicable to any civil claim for damages for harm, “harm”

is defined by the Act to include all the possible forms of loss, which also includes damage to property, economic loss, or personal injury

When does a person breach their duty of care?

• Section 9 of the Civil Liability act states

  (1)A person does not breach a duty to take precautions against a risk of harm unless:

  (a) the risk was foreseeable (that is, it is a risk of which a   person   knew or ought to have known); and

  (b) the risk was not insignificant; and

  (c) in the circumstances, a reasonable person in the   position of the person would have taken precautions.

What factors when considering the standard of care?

) the probability that the harm would occur if   care were not   taken;

(b) the likely seriousness of the harm;

(c) the burden of taking precautions to avoid the risk of harm;

(d) The social utility of the activity that creates the risk of

harm.

Standard of Care

•Whether standard procedures in the profession have been followed and meet the standard care required by law.

Reasonable Person Test

To decide whether the defendant’s actions have fallen below a reasonable standard of care, judges use what is commonly referred to as the ‘reasonable person test’.

What is needed to prove the second element?

• the court looks at the standard of care that the reasonable persion in the position of the defendant should have exercised

Damage Definition

An outcome of the breach of duty care, caused by the defendant including personal injury, physical damage to property, emotional harm or pure economic loss”.

What does a plaintiff need to show to be sucessful in Damage.

Section 11 General Principles

(1)A decision that a breach of duty caused particular harm comprises the following elements

(a) the breach of duty was a necessary condition of the   occurrence of the harm (factual causation);

Another aspect is remoteness which asks if the defendant   could have   reasonably foreseen the damage

Factual Causation

Section 11(1)(a) stated:

(a)the breach of duty was a necessary condition of the occurrence of the harm (factual causation)

This states that the damage must be a direct result of the breach of duty of care, which is known as causation. The court takes the view that the breach of duty of care must be the main cause of the damage. There must be a chain of causation linking the breach of duty and the resulting damage.

But for test

the “but for” test____. This examines the statement:

“ If the harm suffered by the plaintiff wouldn’t have occurred without the defendant’s negligence….

If the damage would have been suffered regardless of the negligent act, the plaintiff will not receive compensation.

Remoteness/ Reasonable Foreseeability

Another test that can be used by the courts to decide if the damage is too remote from the defendant’s act or omission is:

‘Could the defendant have reasonably foreseen the kind of damage suffered by the plaintiff?’

Heads of Damage - Special Damages

•Special Damages:

•These damages can be quantified (an accurate monetary figure can be attached to them)

• Examples include: hospital, surgical and physiotherapy expenses

General Damages

•General Damages:

•These damages are more difficult to quantify because it is hard to put a price on pain.

•Examples include: pain and suffering

To prove the third element,

• Must prove the defendant’s actions were the main cause of the injuries, shown that chain of causation exists betweeen the defendan

Volenti non fit injuria

sho**“to one who consents no injury can be done”**. If the defendant w that the plaintiff voluntarily accepted the risk, the negligence claim will fail.

The plaintiff must:

•Know the facts which make up the danger and

•Submit freely and willingly to that danger

Contributory Negligence

a partial defence in a negligence action where the defendant argues that the plaintiff’s own negligence contributed to the injury/loss/damage suffered.  As a result, according to statute law, the damages the plaintiff will recover are reduced by the extent to which the plaintiff should share responsibly for the accident