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
– 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...