Negligence Flashcards
Breach of D.O.C. (if three conditions met)
Risk was foreseeable.
Risk was not insignificant.
A reasonable person would have taken precautions.
The two main aims of negligence laws are -
- To compensate victims (put them back into the position they were in prior to the wrong doing)
- To stop other members of society from engaging in harmful behavior
Damage caused by the breach - plaintiff must show three things
Damages must be suffered.
The damages was caused by the defendants negligence.
The damage is not too remote.
Three categories of established D.O.C.
Doctors and Health professionals
Teachers/educators
Drivers of motor vehicles
The neighbour principle
Case Donoghue v. Stevenson (1932)
A duty of care to take reasonable care of your legal neighbour.
The Proximity principle
Case. Jaensch v. Coffey (1984)
A duty of care is not owed to the whole at large only to those who are closely and directly affected by the actions of another.
There elements of negligence
D.O.C
Breach of D.O.C
Damage caused by the breach of D.O.C
There are four things the court will consider whether a reasonable person would have taken precautions.
Probability - that the harm would occur if care were not taken.
Likely seriousness - of the harm
Burden of taking precautions - to prevent the risk of harm
Social utility - of the action which creates the risk of harm
S 9 General Principles - Civil Liability Act 2003 (Qld)
A person does not breach a duty to take precautions against a risk of harm unless;
a. ) the risk was foreseeable
b. ) the risk was not insignificant
c. ) in the circumstance, a reasonable person in the position of the person would have taken the precautions.
(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following;
a. ) the probability that the harm would occur if care were not taken.
b. ) the likely seriousness of the harm.
c. ) the burden of taking precautions to avoid the risk of harm; and
d. ) the social utility of the activity that creates the risk of harm. [What is the defendant hoping to achieve by his or her conduct? Was the activity’s purpose to benefit those taking part in it?]
For a plaintiff to be successful in a claim, he/she must show that:
damage was suffered
the damage was caused by the defendants negligence; and
the damage is not too remote from the defendants act or omission.
The Civil Liability Act 2003 (Qld) states that, for a breach of duty to have caused particular harm, it must have been a ‘necessary condition’ of the occurrence of the harm, ie. factual causation.
- In establishing whether the defendant’s breach was a necessary condition for the harm or damage suffered by the plaintiff, the courts will employ the use of the ‘but for’ test.
Two Defences most commonly used by the defendant in negligence claims are:
- Volenti non fit injuria (voluntary assumption of risk by the plaintiff); and
- contributory negligence
Voluntary assumption of risk - “to one who consents no injury can be done”
A defendant who established that the plaintiff voluntarily accepted the risk is absolved from all responsibility. Thus voluntary assumption of risk is a complete defence to a claim of negligence.
In deciding whether a voluntary acceptance of risk has occurred the plaintiff must:
know the facts which makeup the danger; and
Submit freely and willingly to that danger.
- Contributory negligence - once the plaintiff is ale to prove all the elements of negligence, then the defendant may be able to allege that the plaintiff failed to exercise reasonable care for his or her own protection and thus contributed to the negligence. Therefore contributory negligence is a partial defence as the percentage of the negligence that he or she contributed to the loss suffered is determined, and will then reduce the amount of damages to be owed to the plaintiff.
What is vicarious liability?
The general principle of vicarious liability stems from the contract of employment, between an employee and their employer. Vicarious liability is a form of strict liability, in which an employer may be liable for its employee’s damages, irrespective of whether or not they are personally negligent.
The main purpose of vicarious liability is to shift the burden for the payment of damages from the negligent employee to the broader shoulders of the company they are employed by.
Vicarious liability results in liability being imposed on one person for the wrongful act of another.
An employer is responsible for the negligence of it’s employee, when the employee is acting within the usual scope of his or her employment.
What remedies are there for a negligence claim?
Injunction - a court order which usually commands a party to stop performing an unlawful act, in this case a negligent act.
Damages - (General & Special damages, and Future economic loss)
What is negligence?
Negligence is the breach of a persons duty to another person to take reasonable care in the circumstances where such breach of duty causes damage to another person.
For the defendant to be negligent, the plaintiff must prove to the judge on the balance of probabilities, the existence of the following three elements:
- That the defendant owed a D.O.C. to the plaintiff
- The defendant breached said D.O.C. By failing to provide the require S.O.C.
- The plaintiff suffered damages as a result of the defendants breach of D.O.C.
The scope of duty…
The scope of duty is to take reasonable care in… (Rogers v Whitaker (1992)) [treatment of patient, advise to client etc.]
