Torts 1 – Negligence: elements of liability
The law of tort has already been mentioned in other topics in a comparative sense. After studying this topic you should be able to:
• discuss the nature of tort law;
• explain the various interests protected by tort law;
• describe the three essentials of the tort of negligence;
• apply the test of reasonable foreseeability in relation to the duty of care;
• explain the circumstances in which a duty of care arises when giving advice;
• explain the factors used to determine the breach of the standard of care;
• describe the ‘but for’ test of causation; and
• apply these principles of liability to factual situations.
Law of Torts
A ‘tort’ is a civil wrong which the law redresses by an award of damages. A ‘wrong’ is an infringement or violation of a person’s legal right by another. There are many torts, each relating to a different type of harm:
|Negligence: |careless causation of injury to person, damage to property or economic loss | |Defamation: |damage to reputation | |Nuisance: |conduct that interferes with a neighbour’s enjoyment of their property | |Trespass: |to person (physical assault), to goods (unlawful entry onto property) to goods | | |(interference in a person’s use of their goods) |
In this Topic we will focus on the tort of negligence, which is a failure to take reasonable care towards another person which results in that person suffering harm. There is no need for the plaintiff to prove that harm was intended by the defendant – the essence of the action is that insufficient care was taken, and that that resulted in harm. Negligence can also be defined as the doing of something that a reasonable person would not do, or, not doing something that a reasonable person would do, which causes harm. In other words, both acts and omissions can amount to a tort.
In recent years all Australian jurisdictions have enacted statutes (such as the Civil Liability Act 2002 (NSW)) which effect reforms in the area of torts law, such as capping the amount of damages that can be awarded for certain claims. However, these statutes are consistent with, and in many instances re-state, the common law rules of tort. These are the rules we will be concentrating on.
Three essentials of negligence
There are three essentials that a plaintiff needs to prove on a balance of probabilities in order to establish a claim in negligence:
• that the defendant owed the plaintiff a duty of care
• that the defendant breached the standard of care of a reasonable person • that the defendant’s conduct caused harm to the plaintiff
Duty of care – 1st essential
The plaintiff must establish that the defendant owed him or her a duty of care. The test for establishing duty of care re negligent acts was formulated in the famous case of Donoghue v. Stevenson  All ER 1. In this case two women went to a cafe. One of them bought the other, Mrs Donoghue, a bottle of ginger beer. Mrs Donoghue drank the ginger beer, and found a decomposed snail at the bottom of the bottle. She became severely ill with gastro-enteritis. Because Mrs Donoghue had not been the person to buy the ginger beer, she could not sue for breach of contract. Her only course of action was in negligence. The issue was whether the defendant (Stevenson, who owned the factory that made the ginger beer) owed the plaintiff a duty of care. The court formulated a test for determining whether a duty of care is owed (sometimes called the ‘neighbour’ test), stating as follows:
There must be, and is, some general conception of relations giving rise to a duty of care...The rule...
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