Lesson 06

• Negligence

  When a person has failed to take reasonable care that was due to another

  This is obliged when it is reasonably foreseeable that people can be harmed by actions or omissions
• Rights protected by the law

  Protected by Wrongs Act 1958. Developed through common and statute law.

  These protect an individual's right to be safe from harm.

  1. Protect people from wrongful conduct by others (reckless acts or acts with complete disregard)
  2. Allows parties to seek compensation against people who have acted contrary to those laws
• Elements required to establish liability

  1. Duty of Care

  Must be established first.

  There is a duty of care if:

  • Risk was foreseeable
  • Risk was significant or not insignificant
  • A reasonable person in the same circumstances would have taken precautions to eliminate any risk of harm

  Teachers + Schools -> Students

  Doctors + Nurses -> Patients

  Motorists -> Other road users

  Manufacturers -> Consumers
• Duty of Care exceptions

  • Participating in risky activity
  • can sign a waiver
  • Good Samaritan
  • Those who care, help, or give advice in emergency
  • Exempt as long as act in good faith, within competence and without payment
  • Donates food
  • protected as long as food was safe when left possession of donor
  • Volunteers
  • can’t be held liable if damage or injure another
• Elements required to establish liability

  2. Breach of a duty of care (Standard of care)

  Need to consider:

  • Likely risk of harm
  • Likely seriousness of harm
  • Burden of taking precautions to avoid risk of harm
  • Social utility (benefit/worth) of activity that creates risk of harm
• Elements required to establish liability

  3. Causation

  Plaintiff has to prove that the injury or loss was caused by the breach of duty of care and the injury would not have occurred without the breach of duty of care

  
  

  Can be shown that the harm is too remote

  Break in chain of causation is when there is another new act occurred between tort happening and loss/damage being claimed
• Elements required to establish liability

  4. Injury, loss or damage

  Plaintiff needs to prove that he/she/they suffered an injury, loss or damage (even if minor).

  
  

  This can be physical, mental or damage to property.