Negligence

Question 1

What is negligence?

Answer 1

A breach of duty of care that has caused harm or loss.

Question 2

What does negligence protect?

Answer 2

Negligence is a tort that protects individuals’ right to be safe from harm.

Question 3

When might a claim arise?

Answer 3

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.

Question 4

What are the elements of negligence?

Answer 4

1. Defendant owed plaintiff duty of care
2. Defendant breached their duty
3. Breach caused plaintiff harm/loss
4. Plaintiff suffered injury, loss or damage.
   Plaintiff must prove all four elements exist to be successful in claim.

Question 5

Duty of care

Answer 5

A legal obligation to take reasonable care to avoid/prevent harm

Question 6

How do you meet your duty of care?

Answer 6

Must do what a reasonable person would do to prevent harm.

Question 7

When do you owe a duty of care (elements)?

Answer 7

• 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.

Question 8

Who can owe a duty of care?

Answer 8

Individuals, organisations, anyone!

Question 9

When do you owe a duty of care?

Answer 9

where it is reasonably foreseeable that actions (or inactions) could harm others

Question 10

When is duty of care presumed?

Answer 10

• Teachers/schools to students
  
  • Doctors and nurses to their patients
  • Road users to other road users
• Manufacturers to their consumers

Question 11

What are the exceptions to duty of care?

Answer 11

Risky recreational activities, Good samaritan, A person who donates food in good faith/for charitable purposes, volunteers.

Question 12

How do you avoid negligence claim in risky recreational activities?

Answer 12

Consumers can sign waiver to show they accept responsibility for injurues.

Question 13

What does good Samaritan refer to?

Answer 13

• person who gives help and advice in emergency situations arer exempt
• as long as acted in good faith within their compent

Question 14

How can someone who donates food avoid a negligence claim?

Answer 14

As long as food was safe to consume at time it left possession of donor.

Question 15

When is duty of care breached?

Answer 15

when defendant fails to do what a reasonable person would have done to prevent/avoid harm.

Question 16

What does the court consider what a reasonable person would have done in regard to breach?

Answer 16

• 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

Question 17

What does the court consider what a reasonable person would have done in regard to breach?

Answer 17

• 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

Question 18

Causation

Answer 18

Plaintiff must prove injury or loss was caused by breach of duty of care, and injury would not have occurred without the breach

Question 19

Causation (question)

Answer 19

Would the plaintiff’s loss have occurred without the negligent act of the defendant?

Question 20

When would the defendant not be liable?

Answer 20

• 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)

Question 21

What is the remedy available for negligence?

Answer 21

Damages.

Question 22

To be awarded damages for negligence, plaintiff must prove ___.

Answer 22

They suffered a loss.
- physical, financial, mental or damage to property

Question 23

What is the aim of damages?

Answer 23

Put plaintiff back into position they were in prior to negligent act.

Question 24

What are the limitation of actions for negligence?

Answer 24

General negligence claims, actions involving disease or disorder, actions involving death or injury.

Question 25

What is the limitation of actions for a general negligence claim?

Answer 25

e.g claim for property damage
- 6 years from date which cause of action accrued (loss or damage was suffered)

Question 26

What is the limitation of actions for actions involving disease or disorder?

Answer 26

• 3 years from date which the person first knows they have disease or disorder, and that it was caused by defendant

Question 27

What is the limitation of actions for actions involving death or injury?

Answer 27

Whichever expires first out of:
- 12 years from date of defendant’s actions conduct that caused death/injury OR
- 3 years from date on which defendant’s conduct was ‘discoverable’

Question 28

What are the exceptions to expired time period for limitation of actions?

Answer 28

• dust related conditions (e.g abestosis)
  
  • Child abuse
    ○ Government inquiry prompted removal or imitation periods allowing child abuse survivors to bring claims forward

Question 29

What are the defences for negligence?

Answer 29

Elements not met, contributory negligence, voluntary assumption of risk.

Question 30

What is elements not met as a defence to negligence?

Answer 30

• No duty owed
  
  • No duty breached
  • Their breach did not cause the loss
    ○ e.g damage or loss was too remote, or causal link was broken
    ○ Or loss would have occurred anyway
    ○ Something else caused harm
  • No injury or loss was suffered

Question 31

Who has burden of proof when a defence is raised?

Answer 31

The defendant.

Question 32

What is contributory negligence?

Answer 32

Defendant will try to prove plaintiff is partly to blame (contribute to) harmful situation
- e.g negligence of council resulted in car accident, bur plaintiff was not wearing seatbelt

Question 33

What happens if contributory negligence is proven?

Answer 33

Generally reduces amount of damages defendant has to pay to compensate for loss.

Question 34

What is voluntary assumption of risk?

Answer 34

Plaintiff accepted risk, did it anyway.
- Defendant must prove plaintiff was aware of obvious risk and they voluntarily chose to take risk

Question 35

What happens if voluntary assumption of risk is proven?

Answer 35

• Defence may lessen damages awarded, or remove liability from defendant altogether.