2. Negligence

Always a question around negligence in the finals. Work the way through the elements of negligence and discuss them.

Notes from News at Beginning of Lectures

2013 Article where 14 year old kid is on streets with weapon at 3am in New York. Police unalived him. He was suspected gang member. We have to think about negligence and what the parents duties were.

In 2024: Parents of a Texas high school shooter were found not liable for negligence. (The parents were sued for negligence by another party). They did find the shooter liable. Parents were sued for not properly securing firearms, and act on their sons declining mental state. (Why is this not a perfect example of negligence? - Because if law is too tight then parents may lock children up to prevent them from ever doing anything, and if too loose then they just would not care at all about what they do, which is also not ideal, therefore court has to make hard decisions.)

9/11 news. Had 3.5billion insurance (because who would think both buildings would be destroyed at once). Had to decide whether there was "2 events” seeing as they were 2 planes, 20 mins apart, meaning a total of 7 billion in insurance (because insurance works by being used once, then replenishing to full value) or only 1 event and only 3.5 billion. Eventually settled for 4.5 billion. Insurers often “re-insure” where they get insured by another insurer overseas. The property insurers exercised their right of subrogation, and pursued legal action against aviation security and airline companies, finalising in a $1.2 billion recovery.

Right of Subrogation - Insurer can “step into the shoes” of a policyholder after paying out a claim to recover money from a negligent 3rd party who caused the loss.


Elements of Negligence

There is no policy around this. Everything started from the decomposing snail story.

Anything prior to this has been covered in my notes on my tablet.

There is a 4 step process to identifying if there has been negligence.

Step 1: Confirm if there was an expected Duty to Care owed to the other party.

Step 2: Determine whether there was a breach of that duty by failing to exercise the care of a reasonable and prudent person.

Step 3: Confirm the plaintiff suffered loss. (Not just financial loss.)

Step 4: Ensure that it was the breach that caused the loss.

Also 2 other aspects:

  1. Ensure that the loss caused was something that could have been reasonably foreseen due to the breach, not something remote.

  2. The value of the loss must be calculated.

Duty of Care

Key concept: You don’t owe duty to everybody. Law tries to limit liability.

You owe duty to person you can reasonably foresee may be harmed by negligent action.

So who do you owe to? Your Neighbour.

The people you would reasonably be able to foresee would be harmed if you failed to exercise your duty of care. E.g. if you are cutting down tree, you would be able to see what could be damaged if the tree falls wrong, these groups/things are your “neighbours”. You owe these people a duty of care.

Our court decided 2 things:

  1. Relationship between the parties? (Are they neighbours?)

  2. Are there policy factors which negate, restrict of strengthen the recognition of the existence of the Duty of Care?

Is the duty just and reasonable? (This means judge must determine what they think).

Relationships

Is plaintiff a person who it is reasonably foreseeable may be harmed if care is not taken.

Proximity:

  1. Temporal Proximity (time): Is the plaintiff close enough in time to the negligent conduct?

  2. Physical Proximity (place):

Not foreseeable if the plaintiff is trying to “piggy back” on the duty of care owed to another person.

Time Example: MEAH v McCreamer.

Guy is hit by car, gets head injury. 4 Years later commits horrible crime. Is sued, he tries to claim that the person who hit him is liable. Court held that it was not reasonably foreseeable that the person hit would do these things, and 4 years is too remote therefore not negligent.

Relationships continued: Couch v Attorney General

Susan Couch seriously injured by William Bell who was being supervised by parole officer, went and robbed RSA in 2001. She got ACC but went to court for exemplary damages. Court did rule that duty of care likely applied, as it was reasonably foreseeable this man could have hurt someone without proper supervision.

Bourhill v Young

Young negligently drove motorcycle and fatally injured himself. Lady got off tram, saw him from a 50m distance, suffered attack of nerves and gave birth to stillborn. She tried to claim Young owed her loss, court ruled that was not reasonably foreseeable.

Policy Considerations

What do we want law to be?
What do we want to happen?

What are economic effects?

E.g. If we told parole officer they owe duty of care to every single person on their list, then nobody would want to do the job as there are too many social workers.

US example: Doctors can be sued for everything, so if someone who was going to die had a 2% chance to live if they do something without exactly following rules, they would not choose to do the 2% thing, as they would be held too liable.

“Floodgates” argument: if we impose policy on one group, then how many other policies would be required.

Breach of Duty of Care

Has the defendant met the required standard of care?

Reasonable person test:

  • “Negligence is the omission to do something which a reasonable person (within the same type of person, e.g. surgeon, accountant etc.), guided upon those considerations which ordinarily regulate the conduct of human affairs, would do: or doing something which a prudent and reasonable man would not do.”

It does not mean that you have to be perfect all the time, just that you have to be reasonable.

Special Skill, Expertise and Risk

If you have expertise, then you must exercise that standard of care. Even if you are a new grad, you must uphold a reasonable and prudent accountant care.

Quote: “One exercises more caution carrying a bomb than a pumpkin.”

If risk of harm is low, then perhaps standard of care is not too high.

Risk may be accepted in special circumstances, such as emergency services.

Risk Example: Bolton v Stone

Ball hit lady standing outside her house 90m from batsman. Evidence said that club established 1864, road built in 1910, there was also a fence. Therefore not likely it would happen.

Res Ipsa Loquitor

“The thing speaks for itself".”

E.g. crash at a traffic light intersection = most likely someone ran a red.

Scot v London and St Katherine’s Dock Co

  • Defendant owned warehouse, opertaing a crane to lower bags of sugar to the pavement at the docks.

  • Plaintiff was customs officer looking for somebody. entered the warehouse, and some bags of sugar being lowered fell off and hit him without warning.

  • Court held: there must normally be reasonable evidence of negligence????

  • Held that those bags of sugar should not just fall off on their own, therefore somebody must have been negligent. (Circumstances speak for themselves).


Loss

  • Plaintiff must show they have suffered loss. (Physical or otherwise)

  • Monetary award to ‘make good’ physical damage.

  • Economic loss consequential on physical harm.

    • E.g. Uber driver being a deliverer, someone runs red and hits it, then you not only suffer physical damage to car, but also economic loss for not being able to work while being repaired.

  • Pure financial loss:

    • Fear of indeterminacy (“liability for an indeterminate amount, for an indeterminate time to an adequate blah blah”)

Causation

  • Did the persons failure to take care, cause the loss that is being claimed.

    • Issue: Mixed causes - how do we separate?

  • “But for” question: Would the harm not have occurred but for the defendants conduct?

Barnett v Chelsea Hospital.


South Australia Asset Management v York Montague

Barker v Permanent Seamless Floors

“But For” Test

Divisible Loss

  • Is it possible to separate the causes of the loss?

  • Event A causes loss X, and event B causes the distinct and severable loss, loss Y.

  • Each defendant is liable only for the loss caused by them.

Individual Loss

  • Impossible to link particular actions to particular loss.

  • Apply “But For” test to both causes, if it can be done.

  • Do not apply “But For” test where:

    • It would be unjust;

    • Defendants have made it impossible for plaintiff to prove which event causes the loss. (Cook v Lewis)

  • If you cannot prove, then each defendant will be “jointly and severally liable”.


Cook v Lewis


Remoteness

“Eggshell skull”. We take victim as we find them, even if they are particularly vulnerable.


Calculating Damages

  • Compensatory damages

    • Costs of repairs etc

    • Lost profits

      • Assumptions about market and economy

      • Present value

  • Betterment?

    • E.g. you accidentally smash someone’s broken old garage, you would not be forced to replace it, as that would leave them in a better position.

  • What happens when its someone with neurological damage from excess concussions in rugby?

    • Loss of future profits

    • Loss of enjoyment from life (headaches etc)


You can try contract out of negligence, and there is a time limit on claiming it.