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Negligence:

All the necessary elements of negligence must be proven by the plaintiff, and any possible defence must be countered, in order to successfully sue someone for negligence

• Negligence is a tort, involving another person’s failure to take reasonable care in circumstances where their conduct might foreseeably cause us harm or loss.

What is a tort?

• The Law of Torts is concerned with minimum standards of conduct expected between people.

• To establish liability for a tort you have to go to court (ie. your right to expect certain conduct is conferred by law). Liability in tort is based upon a ‘relationship of liability’ existing between people, in contrast to contractual rights which are based on the ‘relationship of agreement’ between parties to a contract.

Aim and elements of negligence

Aim: Protection of a person’s physical/mental health and their property and economic interests from damage caused by another person’s failure to take reasonable care.

Question: Why has negligence become so pervasive since Donoghue vStevenson in 1932?

“Origin of Negligence [ Donogue v Stevenson ]”

However, to be liable it must be shown:

Step 1: the defendant owed a duty of care to the plaintiff;

Step 2: the defendant has failed (breached) to exercise the proper standard of care (i.e. been negligent); and

Step 3: the negligence caused the plaintiff’s (reasonably foreseeable) loss or damages.

Establishing a duty of care : Must establish 3 factors:

1. Reasonable foreseeability of harm (preliminary part to ‘neighbour principle’ developed in Donoghue v Stevenson p.38);

2. A relationship of sufficient proximity (developed from the ‘neighbour principle’ - later elaborated in pure economic loss cases as ‘special relationship’, Hedley Byrne & Co ltd v Heller and Partners ltd p.118)

3. No public policy which denies the existence of a duty of care.

• The existence of a duty of care is a question of law for the judge to decide

Element 1:Duty of care

Defendant must take reasonable care to avoid acts or omissions which it can reasonably foresee would be likely to injure its neighbour -

• ‘Who, in law, is my neighbour?

Persons who are so closely or directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.’ (per Lord Atkin in Donoghue v Stevenson).

• Reasonable foreseeability of harm

• Preliminary part to ‘neighbour principle’ of Lord Atkin in Donoghue v Stevenson.

Involves an objective test: would the defendant have foreseen the possibility of injury arising from the particular event?

• Often criticised as undemanding – isn’t everything that goes wrong reasonably foreseeable?

• Sufficient proximity

• Proximity involves the notion of nearness or closeness, focussing on the relationship between the parties.

• Proximity may be: Jaensch v Coffey (1985), p.46

– Physical;

– Circumstantial, for example an employment or professional relationship; or

– Causal, ie. some direct connection between conduct and injury.

Eg of the extension of negligence principles to all areas of the economy

• From negligent manufacture/production

– Donoghue v Stevenson p.38; Grant v Australian Knitting Mills p.60 - chemical residues (‘the Doctor’s underpants case’, p.36); O’Dwyer v Leo Buring p.58 - champagne plastic stopper; Perre v Apand (1999) - diseased potato seed, p.51

• Motorists & pedestrians

• Clients of professionals

– Chapel v Hart (1988) - medical negligence, p.67

– Professional advisers – discussed under negligent misrepresentation

• Entrants to premises and recreation areas

– Australian Safeway Stores v Zaluzna (1987)p.43 - slippery supermarket floor:

– Club Italia...
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