Negligence Flashcards
What is negligence?
A breach of duty of care that has caused harm or loss.
What does negligence protect?
Negligence is a tort that protects individuals’ right to be safe from harm.
When might a claim arise?
When an individual or organisation has failed to take reasonable care to ensure others are not harmed by actions or inactions, and a breach has resulted in loss.
What are the elements of negligence?
- Defendant owed plaintiff duty of care
- Defendant breached their duty
- Breach caused plaintiff harm/loss
- Plaintiff suffered injury, loss or damage.
Plaintiff must prove all four elements exist to be successful in claim.
Duty of care
A legal obligation to take reasonable care to avoid/prevent harm
How do you meet your duty of care?
Must do what a reasonable person would do to prevent harm.
When do you owe a duty of care (elements)?
- the harm as reasonable foreseeable
Meaning the person know or should have known about the risk of harm. - risk was significant or not significant (not far-fetched)
- a reasonable person in same circumstances would have taken precautions to eliminate any risk of harm.
Who can owe a duty of care?
Individuals, organisations, anyone!
When do you owe a duty of care?
where it is reasonably foreseeable that actions (or inactions) could harm others
When is duty of care presumed?
- Teachers/schools to students
- Doctors and nurses to their patients
- Road users to other road users
- Manufacturers to their consumers
What are the exceptions to duty of care?
Risky recreational activities, Good samaritan, A person who donates food in good faith/for charitable purposes, volunteers.
How do you avoid negligence claim in risky recreational activities?
Consumers can sign waiver to show they accept responsibility for injurues.
What does good Samaritan refer to?
- person who gives help and advice in emergency situations arer exempt
- as long as acted in good faith within their compent
How can someone who donates food avoid a negligence claim?
As long as food was safe to consume at time it left possession of donor.
When is duty of care breached?
when defendant fails to do what a reasonable person would have done to prevent/avoid harm.
What does the court consider what a reasonable person would have done in regard to breach?
- The likely risk of harm
- Likely seriousness of harm
- Burden of taking precautions to avoid risk of harm
○ How onerous would it be to try to avoid this risk? - The social utility (benefit) of activity that creates risk of harm
○ Court will consider what this will mean for society going further
What does the court consider what a reasonable person would have done in regard to breach?
- The likely risk of harm
- Likely seriousness of harm
- Burden of taking precautions to avoid risk of harm
○ How onerous would it be to try to avoid this risk? - The social utility (benefit) of activity that creates risk of harm
○ Court will consider what this will mean for society going further
Causation
Plaintiff must prove injury or loss was caused by breach of duty of care, and injury would not have occurred without the breach
Causation (question)
Would the plaintiff’s loss have occurred without the negligent act of the defendant?
When would the defendant not be liable?
- harm was too remote (removed) from breach of duty of carer
- There had been breach in chain of causation (new act occurred between breach and loss or damage)
What is the remedy available for negligence?
Damages.
To be awarded damages for negligence, plaintiff must prove ___.
They suffered a loss.
- physical, financial, mental or damage to property
What is the aim of damages?
Put plaintiff back into position they were in prior to negligent act.
What are the limitation of actions for negligence?
General negligence claims, actions involving disease or disorder, actions involving death or injury.
