U2 AOS1 - Negligence

Question 1

Negligence overview

Answer 1

• Negligence is a type of tort (a civil wrong).
• The purpose of negligence is to require individuals who owe a duty of care to another person to prevent foreseeable or predictable harm from occurring

Question 2

Elements of negligence

Answer 2

• Defendant owed the plaintiff a duty of care
• Defendant breached their duty of care
• Defendants breach caused harm to the plaintiff
• Plaintiff suffered harm or loss

Question 3

Duty of Care

Answer 3

• The plaintiff must establish that the defendant owed them a duty of care
• Duty of care is the obligation to be careful towards another person
• Two types of situations,
  
  • Settled law that a duty of care exists
  • Situation where there’s no settled law, and so a duty of care is arguable based upon the circumstances
• A person owes a duty of care to another if the risk of harm was reasonably foreseeable (i.e. the person knew or should have known about the risk of harm)
• If the risk is reasonably foreseeable, then the neighbour principle applies. In negligence, the term neighbour refers to the relationship between two parties who are directly impacted by each others actions or emissions

Question 4

Relationships where there is a presumed duty of care

Answer 4

• It is reasonably foreseeable that the actions of a teacher may harm a student
• It is reasonably foreseeable that the actions of a doctor or nurse may harm a patient
• It is reasonably foreseeable that the actions of a motorist may harm other road users
• It is reasonably foreseeable that the actions of a manufacturer may harm a consumer

Question 5

Breach (can be combined with causation)

Answer 5

• The plaintiff must establish that the defendant breached their duty of care
• The duty of care is breached when a person fails to do what a reasonable person would have done in the same situation
• A person has breached their duty of care if:
  
  • The risk of harm was reasonably foreseeable
  • The risk was not insignificant (i.e. not far-fetched or fanciful)
  • A reasonable person in the same situation would have taken precautions to eliminate the risk

Question 6

Causation (can be combined with breach)

Answer 6

• The plaintiff must prove that the defendant’s breach was a necessary condition of their loss or harm
• The but for test can be used to establish causation
• There may be intervening acts that break the chain of causation

Question 7

Loss/injury/damage

Answer 7

• The plaintiff can only seek a legal remedy if they can prove they have suffered injury, loss or damage, even if it is minor
• Loss can be financial, property damage, personal injury, pain and suffering, etc.
• The loss cannot be too remote from the breach. The plaintiff must prove that this specific type of loss was reasonably foreseeable