Legal Studies Unit 2 AOS 1 | Negligence

KK4 - one area of civil law

rights protected by negligence

• protect an individuals right to be safe from unjust harm, loss or damage

• determine when someone is owed a duty of care

• allow parties to seek remedies when duty of care has been breached

• help resotre the wronged party to their original position

the Wrongs Act 1958 (Vic)

Statute that governs claims for damages for personal injury and death resulting from negligence.

Donoghue v Stevenson [1932] - Facts

After drinking a ginger beer that was purchased by her friend, Mrs Donoghue discovered a decomposed snail in the bottle. She became ill and sued the manufacturer, Mr Stevenson, for negligence.

Donoghue v Stevenson [1932] - Legal issue

Did Mr Stevenson, as the manufacturer, owe a duty of care to Mrs Donoghue, a consumer who did not directly purchase the product?

Donoghue v Stevenson [1932] - Decision

The court found in favour of Mrs Donoghue. It held that Mr Stevenson owed her a duty of care and had breached it by allowing a contaminated product to reach her.

Donoghue v Stevenson [1932] - Significance

This case established the modern law of negligence and the ‘neighbour principle,’ confirming that manufacturers owe a duty of care to consumers who are reasonably foreseeable as being affected by their products.

elements required to establish liability

• duty of care

• breach of duty of care

• causation

• remoteness of damage

elements: duty of care

• A legal obligation to ensure the safety and wellbeing of others, and to avoid conduct that could be reasonably foreseen to harm another person.

• the plaintiff must prove that the defendant owed them a duty of care

• neighbour princple

duty of care: the neighbour principle

• requires all individuals take reasonable care to avoid acts or omissions that can reasonably be foreseen to injure their ‘neighbour’

  • ‘neighbour’ being the relationship between the two parties who are affected by each other's actions.

elements: breach of duty of care

The plaintiff must prove that

• the risk of harm was foreseeable

• the risk was not insignificant

• a reasonable person in the same position would have taken precautions to eliminate risk of harm

elements: causation

• the court must determine whether harm would have still occurred if the defendant was not negligent (factual causation)

• court must consider if it is reasonable to hold the defendant liable for the harm suffered by the plaintiff

  • cannot be liable there has been a break in the chain of causation - an intervening act that caused loss as opposed to the defendants actions

elements: remoteness of damage

• ‘remote’ = harm or damaged that too dinrectly connected to the defendants actions to hold them liable

• if harm is remote, then the consequence of the defendants negligencee could not be reasonably foreseen and therefore cannot be liable

limitation of action claims

• general negligence

• claims where plaintiff contracted disease

• claims where plaintiff died or suffered personal injry

limitation period for general negligence

6 years

• starts from the date on which the negligent act occurred

limitation period for claims where the plaintiff contracted a disease

3 years

•  starts from the date on which the plaintiff first knew they had the disease and that it was caused by the defendant

limitation period for claims where the plaintiff died or suffered personal injury

• 12 years from the date of conduct of the defendant that caused the death or injury OR

• 3 years from the date on which the cause of action was discoverable - the date the plaintiff knew that the harm occurred, was caused by the defendant, and was serious enough to justify bringing an action.

have 12 years to discover, and after discovering, have 3 years to sue

possible defences

• contributory negligence

• voluntary assumption of risk

• failing to prove all the required elements of negligence

defences: contributory negligence

the plaintiff contributed to their own loss or damage by failing to take reasonable care of themselves

• plaintiff behaved negligently and did not take steps to avoid a foreseeable risk of injury

• plaintiffs negligence was a contributing cause of damage

defences: voluntary assumption of risk

the defendant must prove that the plaintiff:

• had full knowledge of the risk

• understood the risk

• freely and voluntarily agreed to incur the risk of injury

possible remedies

• specific damages

• general damages

• aggravated damages

remedies: specific damages

compensation that is measurable and may have a precise value

• e.g. such as medical bills or lost earnings.

remedies: general damages

compensation that doesn’t have a specific value and less easily quantifiable.

• awarded when the plaintiff has endured pain and suffering, loss of quality of life and shortened life expectancy.

remedies: aggravated damages

Extra compensation in cases where the defendant's behaviour is harmful and their conduct involves malicious actions.

impact on plaintiff

• physical injuries

• psychological impact

• financial impact

  • medical bills, forced absence from work, high legal fees

impact on defendant

• reputational damage

• financial impact

• cultural changs

• thid party claims and class actions

impact on defendant: reputational damage

accusations of negligence can cause consumers to associate a business’s goods or services with a breach of duty or care which can significantly impact the future of the business and its likelihood of success.

impact on defendant: financial impact

• costly compensatory damages that they may need to pay

  • damages to plaintiff

  • portion of plaintiff’s legal expenses

  • their own legal costs

impact on defendant: cultural changes

• Major negligence cases can lead to cultural and behavioural changes within industries

• Defendants may be required to follow new industry standards to prevent future negligence.

• This can involve changing procedures or improving safety measures

impact on defendant: third party claims and class actions

• A negligence case can lead to similar claims from other plaintiffs or a class action.

• Class actions can be damaging for defendants because:

  • Payouts are often larger than individual claims.

  • Multiple plaintiffs make the case more complex and time-consuming to resolve.