Negligence

Question 1

Purpose of civil law

Answer 1

Civil law aims to protect the rights of individuals, groups and organisations. If an individual’s rights are infringed, the individual (known as the plaintiff) can take the matter to court (or possibly another
dispute resolution body) to ask for compensation as a way of righting the wrong.

Question 2

Tort law: a wrongful act that is recognized by law

Answer 2

Deals with the rights and obligations that people owe to one another, as well as the infringement of those rights and obligations. The person who commits the wrong, and against whom action may be taken, is often called the tortfeasor or defendant.

Question 3

Defendant

Answer 3

(in a civil case) a party who is alleged to have breached a civil law and who is being sued by a plaintiff.

Question 4

The main aim of tort law

Answer 4

is to return a wronged person back to the position he or she was in before the wrong occurred. This is usually done through the awarding of a remedy to the plaintiff.

Question 5

roles of the common law

Answer 5

Common law
Nuisance is a very old tort originally developed through the common law. As the world became more industrialized, standards for what did and did not amount to nuisance also evolved.

Question 6

Negligence

Answer 6

When one person fails to comply with a duty of care owed to another

Question 7

Defamation

Answer 7

When one person makes untrue statements about another, causing damage to their reputation.

Question 8

Nuisance

Answer 8

When a person interferes with another person’s right to enjoy their property

Question 9

Trespass

Answer 9

assault, battery, false imprisonment, trespass to land and trespass to goods

Question 10

What is the most common tort in Melbourne.

Answer 10

Negligence is one of the most common forms of tort and occurs in many different areas of society.

Question 11

The tort of defamation protects

Answer 11

an individual against attempts to discredit them. Information that is published (including on social media platforms) can be considered defamatory if it is untrue and lowers an individual’s reputation.

Question 12

The tort of nuisance protects

Answer 12

an individual’s right
to enjoy convenience and comfort. This includes a right to the
enjoyment of private land which is often an issue between
neighbours.

Question 13

Negligence involves….

Answer 13

Negligence a type of tort which involves a breach of a

duty of care, causing loss or harm

Question 14

What does it mean when a person is negligent in civil law?

Answer 14

When a person is negligent in civil law, the person has failed to take reasonable care that was due to another. A person is obliged to take care when it is reasonably foreseeable that other people could be harmed by their actions or omissions.

Question 15

What is expected of us?

Answer 15

It is expected that while engaging with others, we are aware of the potential for damage or harm that our actions could cause, and we take reasonable steps to avoid causing harm and damage.

Question 16

The law of negligence also aims to

Answer 16

• Protect people from wrongful conduct by others, particularly where a person acts recklessly or with complete disregard for another person.
• Allows parties to seek compensation against those people who have acted contrary to those laws.

Question 17

Elements required to establish liability

Answer 17

• Duty of care
• Breach of duty of care
• Causation

Question 18

Element 1 – Duty of care

A reasonable person in the same circumstances would have taken precautions to eliminate any risk of harm.

Answer 18

The plaintiff must first establish that the defendant owed him or her a ‘duty of care’. A person owes a duty of care:
• The risk was foreseeable (i.e. the person knew or should have known about the risk of loss or harm)
• The risk was significant or not insignificant (i.e. not far fetched or fanciful)

Question 19

Element 2 – Breach of a duty of care (standard of care)

Answer 19

A breach of a duty of care occurs when a person does not take all the care they should. The duty
is breached (broken) when the defendant fails to do what a reasonable person would have done.

Question 20

Element 3 – Causation

Answer 20

To succeed in a negligence claim, the plaintiff has to prove that the injury or loss was caused by the breach of duty of care, and the injury would not have occurred without the breach of duty of care.

Question 21

Exceptions to the duty of care

Answer 21

When participating in a risky recreational activity, consumers can sign a waiver to show they accept responsibility for injuries.

A good Samaritan is a person who gives care, help and advice in an emergency situation. ‘Good Samaritans’ are exempt from legal liability in negligence claims as long as they act in good faith, within their competence and without payment.

Volunteers (people who do community work for a community organisation, association, local government or public authority) cannot be held personally liable if they cause damage or injury to another.

Question 22

During an Negligence claim the court considers?

Answer 22

The likely risk of harm
• the likely seriousness of the harm
• the burden of taking precautions to avoid the risk of harm
• the social utility (benefit or worth) of the activity that creates the risk of harm.

Question 23

Too remote

Answer 23

If it can be shown that the harm was too remote from the breach of duty of care, the plaintiff will not be successful in claiming negligence.

Question 24

Break in the chain of causation

Answer 24

This is where some new act occurred between the tort happening and the loss or damage being claimed.

Question 25

Element 4 – Injury, loss or damage

Answer 25

As a general rule, the plaintiff can only seek a legal remedy through the law of negligence if it can be proved that he or she suffered an injury, loss or damage, even if it is minor. The injury, loss or damage can be physical, mental or damage to Property.

Question 26

Calculation of time

Answer 26

The start of limitation periods for negligence claims depends on the type of injury. For example: • for general negligence claims, the time starts from the date on which the cause of action accrued (i.e. when the loss or damage was suffered by the plaintiff ) • for actions involving a disease or disorder, the time starts from the date on which the person first knows they have the disease or disorder and that the disease or disorder was caused by the defendant.

Question 27

Defence 1 – Contributory negligence

Answer 27

The defendant may try to prove that the plaintiff contributed to the harmful situation or is partly to blame for the harm done. Contributory negligence will generally reduce the amount of damages that the defendant would be required to pay to the plaintiff to compensate them for their loss, damage or injury.

Question 28

Defence 2 – Assumption of risk (volenti non fit injuria) A person who knowingly accepts a ride with a drunken driver is accepting an obvious risk of being injured in a car accident, as it is well known that excessive alcohol consumption impairs driving ability.

Answer 28

This means that the defendant must prove that the plaintiff was aware of an obvious risk and that he or she voluntarily chose to take the risk.

Question 29

Impact of negligence on the defendant

Answer 29

- Loss of business - Public humiliation - Physical injury - Costs - Need to sell assets

Question 30

Impact of negligence on the plaintiff

Answer 30

- Loss of life - Permanent physical incapacity - Serious physical injury - Emotional impact of the breach - Loss of wages and livelihood - Unemployment - Effect on mental health

Question 31

roles of the statue law

Answer 31

Statute law There are a number of statutes that create offenses relating to interfering with other people’s property. For example, It is a crime to light fires on your own property that cause damage or danger to other propertiesIt is illegal to allow a nuisance to emanate from your propertyIt can be illegal to blockade building sites or abortion clinics

Question 32

What are the key elements necessary to establish a duty of a care in a negligence case?

Answer 32

a. The risk was foreseeable (i.e. the person knew or should have known about the risk of loss or harm) b. The risk was significant or not insignificant (i.e. not farfetched or fanciful) c. A reasonable person in the same circumstances would have taken precautions to eliminate any risk of harm

Question 33

Using an example, explain what is meant by the term ‘contributory negligence’.

Answer 33

a. A person may make a claim that they suffered personal injury as a result of being pushed by the defendant. However, their claim, if proven, would be reduced if it were shown that the plaintiff was intoxicated at the time. Contributory negligence will generally reduce the amount of damages that the defendant would be required to pay to the plaintiff to compensate them for their loss, damage or injury.

Question 34

For a duty of care to be breached, the consequence of the action must be reasonably foreseeable. Explain the meaning of this statement.

Answer 34

The duty is breached (broken) when the defendant fails to do what a reasonable person would have done. In determining whether a reasonable person would have taken precautions against a risk of harm

Question 35

What act applies to Negligence Claims?

Answer 35

The Wrongs Act 1958

Question 36

Purpose of the law of negligence

Answer 36

The main purpose of the law of negligence is to protect an individual’s right to be safe from harm, both to the person and to their property.

Question 37

negligence also aims to:

Answer 37

Protect people from wrongful conduct by others, particularly where a person acts recklessly or with complete disregard for another person. • Allows parties to seek compensation against those people who have acted contrary to those laws.

Question 38

Elements required to establish liability

Answer 38

Duty of care – the defendant owed a duty of care to the person injured • breach of duty of care (standard of care) – the defendant breached the duty of care • causation – the breach of duty of care caused the harm to the plaintiff • injury, loss or damage – the wronged person has suffered injury, loss or damage.