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Unit 2 Introduction to Torts: Topic 1 Negligence

Reading

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Contents

Four essential elements required for a successful claim in negligence
Textbook
Textbook
Textbook
What are the defences to negligence?
Textbook
Examinable cases

 

Four essential elements required for a successful claim in negligence

You are employed as a welder in a manufacturing business. The employer does not supply you with safety goggles and allows you to work with your eyes unprotected as you are welding. An accident occurs resulting in you losing the sight in one eye. What are your rights under the tort of negligence? What would you need to prove in order to recover damages?

The elements of the law of torts are concerned with the accidental injury to person and property and rests upon two principles:

  1. An act or an omission by the defendant that interferes with some right of the plaintiff which causes damage.
  2. The interference must give rise to a cause of action for damages that should be as nearly as possible to the plaintiff’s loss.

There are four essential elements you would have to prove in court.

  1. A ‘duty of care’—this is a duty, recognised by law, requiring compliance with a particular standard of conduct for the protection of others against unreasonable risks.
  2. A breach of the duty of care—in other words, a failure to conform with the required standard of care.
  3. Damage—that is, some resulting injury to the complainant (such as personal injury, damage to property and, in recent times, in some cases, economic loss only).
  4. A reasonably proximate connection between the offender’s conduct and the resulting injury, usually referred to as the ‘remoteness of damage’ question.
Image of the elements required for negligence

Was there a duty of care owing by the defendant to the plaintiff?

For an action by any person to be judged as negligent presupposes a duty, in the circumstances, to exercise care. ‘Duty’ in this context is an obligation, recognised by law, to conform to a particular standard of conduct for the protection of others against unreasonable risks.

The best known test of the duty of care is the ‘neighbour test’ as laid down in the English case of Donoghue v Stevenson [1932] AC 562. Here, it was said that persons must take reasonable care to avoid acts or omissions which can be reasonably foreseen to be likely to injure one’s neighbours. ‘Neighbours’ was meant as all persons who are so closely and directly affected by the act, or its omission, that the defendant ought reasonably to have thought of them as being affected when the defendant did, or did not do, the act in question. You can only regard this test as a general rule because of the many and different circumstances in which negligent conduct can arise.

Negligence, essentially, is the failure to take care against unreasonable risk of foreseeable injury to others.

Case summary

The case of Donoghue v Stevenson arose when the plaintiff became ill after drinking some ginger beer poured into a glass from an opaque bottle. Her illness, she alleged, was due to the presence of a decomposed snail in the bottle which apparently emerged when her glass was refilled. Because the drink had been purchased by her friend she did not sue in contract but in tort. Ultimately the House of Lords was asked to decide if the assumed facts were established: did she have a good cause of action in tort? By a majority of three to two the House of Lords decided that she would have a good cause of action if the assumed facts were proved. However of the majority only Lord Atkin enunciated the general principle from which the modern law of negligence has developed.

This case was upheld in Australia the following year in Grant v Australian Knitting Mills (1933) 50 CLR 387. Look up this case your textbook.

Did the Defendant breach the duty of care?

Did the defendant fail to do what a reasonable person should have done in the circumstances? The key tests for negligence are now the probability and likely seriousness of harm and the burden and social value aspects of taking precautions. See the case of Wyong Shire Council v Short (1980) 146 CLR 40. You will see that to decide if there is a breach the Court will look at the probability of harm, the likely seriousness of harm, how difficult is it to take precautions against the harm, and what are the conflicting responsibilities of taking the precautions.

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Textbook

Go to your textbook and read the chapter on torts. You might want to try looking in the index looking up terms such as ‘duty of care’ and ‘negligence’.

Did the Defendant’s breach harm (cause damage) to plaintiff?

The plaintiff must have suffered some loss—whether personal harm (such as injury) or to property. If there is no loss, the plaintiff cannot recover damages, as damages are essentially the monetary compensation for the loss the plaintiff has suffered.

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Textbook

Go to your textbook and read the chapter on torts. You might want to try looking in the index looking up terms such as ‘damage’ and ‘negligence’.

The damage caused was not too “remote”.

The leading case in this area is the Overseas Tankship (UK) Ltd v Morts Dock Engineering Co Ltd [1961] AC 388 (Wagon Mound No 1 Case (1961)). Have a look at that case in your textbook. The case shows that it is not enough to show that the defendant’s breach caused the damage. The plaintiff must show that the damage caused was reasonably foreseeable by the defendant and not too remote.

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Textbook

Go to your textbook and read the chapter on torts. You might want to try looking in the index looking up terms such as ‘proximity’, ‘remote’ and ‘negligence’.

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What are the defences to negligence?

The two main defences are:

  1. contributory negligence
  2. voluntary assumption of risk.

Contributory negligence

Contributory negligence occurs when a plaintiff fails to meet the standard of care required of them for their own protection—this being a contributory cause, with the defendant’s conduct, of the plaintiff’s injury.

Contributory negligence is really the plaintiff’s failure to avoid harm caused by the defendant’s conduct (for example, a pedestrian steps onto the street without looking and is hit by a speeding car). The position is that when contributory negligence is present, responsibility for the injury will be apportioned between the plaintiff and defendant, according to their respective degrees of responsibility.

The Civil Liability Act 2002 (NSW) now allows a court to reduce a plaintiff’s damages by 100%.

Voluntary assumption of the risk of harm

The plaintiff consents to or voluntarily assumes the risk of injury. It is a complete defence and, if successfully pleaded, the plaintiff will not be able to recover anything.

This means that the plaintiff agrees to assume the risk of the harm personally, which absolves the defendant from responsibility for it. For example a person who participates in a rugby match cannot complain if he suffers an injury when an opponent accidentally kicks him in the face.

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Textbook

Go to your textbook and read the chapter on torts. You might want to try looking in the index looking up terms such as ‘defences’ and ‘negligence’.

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Examinable cases

Make sure that you read and summarise the following cases for your exam:

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