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.
What is the limitation of actions for a general negligence claim?
e.g claim for property damage
- 6 years from date which cause of action accrued (loss or damage was suffered)
What is the limitation of actions for actions involving disease or disorder?
- 3 years from date which the person first knows they have disease or disorder, and that it was caused by defendant
What is the limitation of actions for actions involving death or injury?
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’
What are the exceptions to expired time period for limitation of actions?
- dust related conditions (e.g abestosis)
- Child abuse
○ Government inquiry prompted removal or imitation periods allowing child abuse survivors to bring claims forward
- Child abuse
What are the defences for negligence?
Elements not met, contributory negligence, voluntary assumption of risk.
What is elements not met as a defence to negligence?
- 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
Who has burden of proof when a defence is raised?
The defendant.
What is contributory negligence?
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
What happens if contributory negligence is proven?
Generally reduces amount of damages defendant has to pay to compensate for loss.
What is voluntary assumption of risk?
Plaintiff accepted risk, did it anyway.
- Defendant must prove plaintiff was aware of obvious risk and they voluntarily chose to take risk
What happens if voluntary assumption of risk is proven?
- Defence may lessen damages awarded, or remove liability from defendant altogether.
