Common Law in Australia: The Tort Of Negligence

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TORT - A Tort is a civil wrong that is outside of Contract Law and arises out of a recognition that a person is responsible for their acts and omissions when dealing with others. The term "Tort" refers to a number of different laws such as nuisance, trespass and assault. Torts action generally compensates the individual for personal loss where the loss was caused by another person. It is based on Common Law.

NEGLIGENCE - Negligence is one of many types of Torts. Negligence is now the dominant Tort and the focus of this topic.

DEFINITION: Conduct that falls below the standard of care demanded for the protection of others against the unreasonable risk of harm.

To establish a claim for Negligence the plaintiff must prove three essential elements:(1) the defendant owed the plaintiff a duty of care and not to cause him or her e injury, loss or damage in the circumstances of the case.

(2) the defendant breached the standard of care; -(3) the plaintiff suffered damage, injury or loss because of that breach. -(4) That the damage suffered by the plaintiff was not too remote - that is, the injury, loss or damage suffered would have been foreseen as a possible result of the breach of the duty by a reasonable person placed in the position of the defendant at the time when he or she breached the duty.

ELEMENTS OF NEGLIGENCE1. DUTY OF CARE - Legal obligation on a person engaged in any activity to take reasonable care to avoid acts or omissions that they can foresee would likely cause damage or injury to another personTo be liable in Negligence a 'duty of care' must be owed by one party to another. This rule was established in the House of Lords decision Donoghue v Stevenson (1932). In this case Lord Atkin formulated the "neighbour test" to determine whether a duty of care was owed by one party to another. This test established that you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.

Per Lord Atkin in Donoghue v Stevenson:" Who is my neighbour? Anyone so directly affected by my actions that I ought reasonably have them in my contemplation as being affected when I am directing my mind to the acts/omissions in question" (an objective test).

However, the 'neighbour principle has been condemned as inadequate sole determinant of the duty of care issue to be applied in all negligence cases.

1ai) Whether the consequences of the defendant's act were reasonable foreseeable. For example damage or harm to the plaintiff's were held to be reasonably foreseeable in:Thus, the connection between the parties is vital. The Courts have accepted that 'reasonable foreseeability' was not enough and that the proximity of the parties needed also to be established to determine the duty of care. In this regard, consider: Jaensch v Coffey - where the plaintiff suffered nervous shock after seeing the husband who had been involved in a motor accident, it was held that the harm to the plaintiff was reasonably foreseeable by the defendant.. (However the High Court decision in Neindorf v Junkovic (2005), suggests that the notion of proximity may no longer be necessary.) Brennan J: "Nervous shock is…The sudden sensory perception by hearing, seeing, or experiencing of a person or a event that is so distressing that the perception of the phenomenon affronts the plaintiff's mind and causes a recognizable psychiatric illness". In this case it was also established that close family members of a person injured by a defendant are considered foreseeable plaintiffs to whom a duty is owed.

Chapman v Hearse - Doctor killed while attending to the injured in a motor accident, it was held that it was reasonably foreseeable that the negligent conduct which led to the initial accident could lead to a rescue effort and subsequent injury to the rescuer. In here, the duty was expressed to extend to persons fulfilling a moral or social duty to render aid to those incapacitated or...
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