Chapter 5A/5B: Negligence Part 1

Question 1

What does the tort of negligence protect?

Answer 1

A person or organisations rights to not be harmed by someone who does not take reasonable care to prevent this

Question 2

What is the reasonable care that schools must take?

Answer 2

Schools must take reasonable care to protect students from harm, by conducting fire safety drills and providing student counsellors

Question 3

What are the four elements that must be proven for a claim of negligence to be successfully established?

Answer 3

• The defendant owed a duty of care to the plaintiff
• The defendant breached that duty of care
• The breach of duty caused injury or harm to the plaintiff
• The breach of duty must be a significant cause of the damage suffered

Question 4

What is duty of care defined as?

Answer 4

The legal obligation to avoid conduct that can be reasonably foreseen to harm a person’s neighbour

Question 5

What are the two principles that the duty of care involves?

Answer 5

Reasonable foreseeability and the neighbour principle (derived from the Donoghue vs Stephenson Case)

Question 6

What took place during the Donoghue vs Stephenson Case (1932)?

Answer 6

Donoghue purchased beer from Stephenson and got sick as a result, however as there was no contract between them and there was no such thing as negligence, he could not sue Stephenson

Question 7

What took place during the Grant vs AKM case (1936)?

Answer 7

Grant wore underpants manufactured by AKM and suffered a rash due to them. He successfully sued AKM, as the Australian court applied the persuasive precedent created in the Donoghue vs Stephenson Case

Question 8

What does reasonable foreseeability refer to?

Answer 8

The capacity to anticipate that a person’s act or omission could cause harm to someone else

Question 9

What does the neighbour principle require?

Answer 9

All individuals and organisations to take reasonable care as to avoid acts or omission that can be reasonably foreseen to injure their ‘neighbour’

Question 10

What is a person’s neighbour defined as?

Answer 10

Persons who are so closely and directly affected by the acts or omissions that they ought to have reasonably been in contemplation, as being so affected to these acts or omissions which are called in question

Question 11

What do established categories refer to?

Answer 11

Relationships whereby an automatic duty of care arises, such as between doctors and patients, schools and students or landowners and tenants

Question 12

What are the elements that must be established in order for a person to have breached their duty of care?

Answer 12

• The risk of harms foreseeable
• The risk was not insignificant
• A reasonable person in the same position would have taken precautions

Question 13

What is causation for negligence comprised of?

Answer 13

Factual causation and legal causation (the scope of liability)

Question 14

What does factual causation require?

Answer 14

The defendants negligence to be a necessary condition for causing the harm

Question 15

How is factual causation determined?

Answer 15

The court determines subjectively whether the harm to the plaintiff would have occurred ‘but forth defendant’s act or omission

Question 16

What will the court consider when determining legal causation, also known as the scope of liability?

Answer 16

Novus actus intravenous and policy considerations

Question 17

What does novas actus intravenous refer to?

Answer 17

A supervening event so drastic that it breaks the chain of causation between the defendants negligence and plaintiffs injury

Question 18

What are policy considerations?

Answer 18

Any considerations relating to questions of morality, justice or ethics that would make it impractical to hold the defendant liable

Question 19

What does remoteness of damage refer to?

Answer 19

A person will not be liable for negligence if the harm was too remote or not a reasonably foreseeable outcome of the defendants act or omission