No matter what aspect of life we are involved in, it is our responsibility to ensure that the safety and well-being of others is looked after. From driving to rendering a service or maintaining our properties, we must act responsibly. When this duty of care is ignored and someone else suffers harm or loss, legal action may be taken citing ‘negligence’.
Negligence is a concept at the heart of many Australian legal cases, from personal injury claims to tort cases. In this blog post, we will explore the complexities of negligence law, including its elements, areas of use, and role in achieving societal justice and accountability.
Definition of Negligence and Breach of Duty
Negligence is a breach of civil law (tort) committed by an individual, business or other entity. If proven, it can be subject to damages and requires three elements: a duty of care, a violation of that duty and an injury.
Negligence may result in a person being held liable for any harm which ensues, as long as the individual has infringed upon their duty of care to the injured party (the plaintiff). The number of damages awarded will be contingent on the intensity of the injury and whether or not it was foreseeable at the time.
In order to prove negligence, the plaintiff must show that:
- The defendant had an obligation to uphold a certain standard of care for them.
- As a result of this breach, the claimant suffered damage
- Due to the breach, the plaintiff was caused harm.
A duty of care implies the responsibility to take appropriate steps in order to prevent harm or loss to someone else. For instance, a shopkeeper needs to be mindful when stocking products with an expiry date, since it may lead to ill health.
A breach of duty happens when an individual whom one has a responsibility to provide care towards endures harm or damage due to the lack of proper caution taken. As an instance, if an operator of a carpark does not take measures to eradicate ice from it and someone falls as a result, then that person will be said to have violated their duty of care.
Assuming that all three elements are present, the court will then consider whether the damage was reasonably foreseeable. Foreseeability is based on proof that the defendant had a general awareness that the possibility of harm existed.
Types of Negligence
The Australian legal system takes into account a wide range of situations where someone has not taken reasonable care, causing harm to another. Such negligence can be demonstrated in diverse ways and the law provides for various forms of it.
Vicarious liability is a type of negligence in which an employer is held to account for the negligent actions of their employees. This follows from the idea that employers ought to be responsible for ensuring that their personnel do not put others in danger of harm. On the flipside, contributory negligence implies that both parties are partly to blame for any damage due to their separate contributions.
Negligence can take many forms, such as pure economic loss, where an individual incurs financial damage due to another’s actions, or occupier’s liability, when the landlord of a building is responsible for ensuring that visitors remain safe from harm.
The Origins of Negligence in Australia
The inception of negligence in Australia can be traced back to the English common law. The case of Donoghue v Stevenson [1932] AC 562 is frequently referred to as a key authority on negligence. In this case, the House of Lords decreed that a manufacturer had an obligation to protect the final end user of its product. This decision set out the principles of duty of care and breaching this duty, which are fundamental components in any negligence claim.
Following Donoghue v Stevenson, a number of subsequent cases have since provided clarification and extended the established principles. For example, Barker v Corus (UK) plc [2006] UKHL 20 saw the House of Lords rule that a negligent misrepresentation could be grounds for claiming negligence. This ruling widened the parameters of actionable misconduct and offered those seeking compensation for personal injury or financial loss more avenues for doing so.
Recognised by the law in Australia, negligence is an area of its own. Clear principles and a vast amount of case law provide guidance for those with or defending claims. If you believe you have experienced loss through someone else’s or an entity’s negligence, you may be entitled to seek reparation.
Negligence, Standards of Care, and Causation
To understand negligence in the Australian legal system, one must first comprehend the standard of care. Generally, this is considered to be what a reasonable person would do when confronted with a similar scenario, taking into consideration elements such as their training, expertise and wisdom. There are certain circumstances where the applicable standard of care is legally presumed either lower or higher (like when working with minors or operating vehicles), but most of the time it’s up to the court to determine how a reasonable person would respond.
Once the accepted standard of care has been established, it must be proven that the defendant failed to meet this measure. It is not sufficient to simply demonstrate a misstep on their part; there must be proof that what they did was beyond what could reasonably have been expected given the situation. If it is demonstrated that this breach of duty led to harm or losses for the plaintiff, then responsibility will be attributed to the defendant.
Negligence cases may involve different defenses, such as contributory negligence or voluntary assumption of risk, which apply when the plaintiff has partially caused their own injury/damages or accepted risks.
Defenses to the Claim for Negligence
There are a number of defenses that can be raised to a negligence claim, including:
- In cases of contributory negligence, the plaintiff’s damages may be reduced by the degree to which they are found to be responsible.
- The plaintiff was aware of the risks associated with participating in a certain activity but nevertheless proceeded to do so.
- In the case of illegality, if the plaintiff’s conduct prior to the accident or injury was in violation of the law, they may not be able to seek compensation.
Other potential defenses include:
- The defendant was unaware of the risk that caused the mishap or harm.
- The plaintiff has settled on foregoing their right to legal action due to negligence, intentionally or implicitly.
- Contribution – where both parties are found to be liable and the burden of payment is shared between them.
- Estoppel is when an individual has acted in a way that implies, they have taken the chance of experiencing an accident or harm. This can be demonstrated through signing a waiver, for example.
Remedies for Claiming Compensation
There are a few key remedies available for those looking to claim compensation in the Australian legal system:
- Damages are the standard form of remedy, both for physical and psychological harm. This is to compensate the claimant by quantifying the loss they experienced and restoring them to pre-injury status.
- Compensations for economic losses, such as lost wages or medical bills, may be offered in the event of an injury.
- Punitive damages are not common, but they may be awarded when the defendant’s behaviour is particularly careless or intended to cause harm. These damages serve as a punishment for the person responsible and to act as a deterrent against such conduct in the future.
- Injunctive relief typically only comes into play when there is an imminent danger that the defendant will cause further harm if they are not stopped from taking specific actions. For instance, a court order can be acquired to keep someone from accessing your property without permission.
Conclusion
To sum up, negligence has many complexities in Australia’s legal system and involves multiple elements that must be considered before a judgement or damages are granted. Knowing these principles is critical to guarantee that you and your interests are safeguarded should you ever need to go to court. Consequently, it is advisable to consult a lawyer for any issue related to this type of legal action, so that your representation is correct.
FAQs
1. What is negligence?
Negligence is a failure to exercise the proper caution that would be expected, so as to prevent an injury or loss to another person.
2. What are the elements of negligence?
Negligence involves an obligation of care, failing to fulfil this duty and consequent harm.
3. Who can sue for negligence?
Any individual who has been harmed due to the careless actions of another may file a lawsuit to seek compensation.
4. How do courts decide if someone is negligent?
The courts will assess whether the defendant had a responsibility to the plaintiff, if that obligation was disregarded, and if an injury was inflicted as a direct consequence of this neglect.
5. What are some defenses to negligence?
There are several defenses to negligence such as contributory negligence, taking on a voluntary risk and the occurrence of an extraordinary event beyond human control.