Negligence

Question 1

The rights protected by the law

Answer 1

The tort of negligence protects a person’s (and an organisation’s) right to not be harmed by someone who does not take reasonable care to prevent this. The law of negligence requires all individuals to take reasonable care to avoid any act or omission that may reasonably be foreseen to cause injury or harm to another person.

Question 2

The elements

Answer 2

There are four elements that must be proven for a claim of negligence to be successfully established:
1. The defendant owed a duty of care to the plaintiff;
2. The defendant breached that duty of care;
3. The breach of duty caused injury or harm to the plaintiff (causation); and
4. The breach of duty must be a significant cause of the damage suffered (remoteness of damage).
Duty of care involves two legal concepts that have been derived from the famous English case of
Donoghue v Stevenson:
• Reasonable foreseeability; and
• The neighbour principle.

Question 3

Defences

Answer 3

If a case of negligence is likely to be proven against a defendant, that defendant may raise some
defences to avoid being held liable. Two of the defences include:
• Contributory negligence – where the plaintiff themselves have contributed to their harm; is a defence that may be raised where the plaintiff also played a part in causing their own loss or damage by failing to take reasonable care for themselves.
• Voluntary assumption of risk – where the plaintiff is aware of and accepts the risks involved.a defence that willingly accepts the likelihood of risk when participating.

Question 4

limitations of actions

Answer 4

If a person feels their rights have been breached they can initiate a civil action but must be done within a set period of time. For a case of negligence, from the time of cased action, it must be pursued within 3 years. The court can also consider extending the limitation period for some considerations.

Question 5

the impact on the parties

Answer 5

Plaintiff: in a case of negligence, the impacts for the plaintiff include the following…
Physical injuries
Psychological injuries - feeling fearful to return to work, stress-related claims for workplace injury
Financial loss
Re-victimisation - needing to endure a lengthy trial in order to be compensated for the losses sustained.

Defendant - 
Reputational damage - often one of the most damaging impacts of a negligence case is the reputational damage that it can cause a business
Financial loss 
Cultural changes - 
Third-party claims and class actions