Elements of the tort of negligence PDF

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Elements of the tort of negligence Legally recognised damage (or harm) must be satisfied There is a long-standing principle that states, ‘damage is the gist of a negligence action’ Harrington v Stephens (2006) CLR 52; 226 ALR 391.1 To be actionable, the law requires that the plaintiff or claimant suffer (and approve) actual damage for an action in negligence to be available. A minimum amount of damage is required - because damage is the gist of negligence, the cause of action is not complete until the harm is present. The damage must amount to 'legally recognised harm'. The elements of the action that must be proven to succeed in the common law negligence action are:2 Duty of care The defendant owes the plaintiff, who suffers legally recognised harm are damaged, a duty to take care; Breach The defendant's conduct breaches the duty of care owed to the plaintiff, it does not satisfy the standard of care expected of the reasonable by the reasonable person in the same circumstances. This is the 'fault' element of the tort — assessed on the basis of reasonableness; Causation The breach is a factual cause of the harm; it is reasonably foreseeable and not too remote No defences No defence applies if contributory negligence applies, it reduces damages. Negligence allows a plaintiff to bring legal proceedings against the defendant without proof of deliberate intent. Breach Of The Duty To Take Care: The Standard Of Care Expected Of The 'Reasonable Person' The calculus of negligence at common law and under statute

1 Martin Davies and Ian Malkin, Focus Torts (LexisNexis, 7th ed, 2015). 35. 2 Ibid. 36.

Liability attaches only to the breach of that duty when it causes harm that is not too remote.3 Most cases turn on determining breach — whether or not the defendant's conduct discharge the duty to take care.4 -In this way, a negligence action can act as a regulator always a risk management device. The plaintiff must identify and prove a specific failure by the defendant. In many cases, more than one failure is alleged. -The failure must be later considered in the context of causation. In the UK case, Blythe v Birmingham Waterworks Co (1856), negligence is (i) the omission to do something which an ordinary person would do; or (ii) doing something that a reasonable person would not do.5 In every case, the plaintiff must prove that the defendant did not act as a reasonable person in the circumstances would have acted. A common law in Australia, the standard of care given that in any given situation is governed by Mason J's decision in the leading High Court of Australia case. Wyong Shire Council v Shirt (1980), the first matter that must be established is that the risk of injury was suitable to the reasonable person. To be satisfied, the court must consider the 'negligence calculus'.6 The court must consider all of the factors which would influence a reasonable person determining whether or not to take precautions to avoid the risk of injury manifesting itself. A common law, these factors are:     

the probability of the risk materialising; the gravity of the harm if you were to materialise; the practicability of precautions; the social utility or justifiability of the defendant's conduct; other factors, such as any conflicting responsibilities. 7

At common law, Mason J stated that a foreseeable risk is one that is ‘not far-fetched or fanciful’. The civil liability statutes now prescribe that the risk must be a 'not insignificant' risk.8 The statutes include the common-law standard of care requirements: the probability that a harm would occur if cable was not taken, the likely seriousness of the harm, the burden of taking precautions to avoid the risk of harm and the social utility of the activity that creates this risk of harm. 3 Ibid 37. 4 Ibid. 5 Ibid. 6 Ibid. 7 Ibid. 8 Ibid 38.

The reasonable person: modifications to the objective standard In the usual case, the conduct of the defendant is compared to that of the ordinary, reasonably prudent person: however, some characteristics or attributes of particular classes of defendant on take it into account in special situations. For example, in the cases of children, with the objective standard of care is modified lower whilst a higher standard of care is expected of professionals acting in a professional capacity. 9 English courts relied heavily upon the evidence of medical professionals when determining proper's levels of skill and care. The argument was that, under the so-called 'Bolam test’, the courts left it to the profession to determine the standard of skill and care required. The defendant would not be negligent if there was a responsible body of medical opinion which stated that the conduct of the defendant was proper. In Australia, the used to be made of expert evidence was 'settled 'a common law in the High Court of Australia case, Rogers v Whitaker (1992): that standard is not determined solely or even primarily a reference to the practice followed or supported by responsible body of opinion in the relevant profession or trade… It is for the courts to adjudicate on what is the appropriate standard of care after giving weight "the paramount consideration that a person is entitled to make his own decisions about his life". 10 In Naxakis v Western General Hospital (1999), it was made clear that the Roger v Whitaker principle extended to cover diagnosis and treatment. 11 In most jurisdictions, legislators changes do not equate skill with conformity to regular practice. Rather, they determine the standard as being what could reasonably be expected of persons of skill. 12 In general terms, the conduct will not be considered negligent if it complies with 'peer professional opinion’. The practice need not be universally accepted to be accepted, and justifiably relied upon. The court has the final say in determining negligence if the practice is 'irrational'. Peer professional opinion provisions do not offer this type of excuse or protection in the context of information provision, advice or warnings. In these circumstances, the Rogers v Whitaker common law principle applies.13

Consequences of breach finding

9 Ibid. 10 Ibid 39. 11 Ibid. 12 Ibid. 13 Ibid 13.

Finding a breach of the duty of care in establishing the relevant standard of care are tied closely to the facts of the immediate case. The court, as a fact finder, makes an assessment of the reasonableness of the defendant’s conduct in the circumstances of the case. 14 The breach decision is tied closely to the facts of the particular case and is not of precedential value; that aspect of the decision is not binding. 15 Although the actual breach determinations are not binding, under my principles may emerge from the case that are of presidential effect, such as whether or not child defendants should be held to the same standard of care as adults, and what is a 'material risk' in medical negligence claims.16 Cause harm that is not too remote To establish the defendant's liability in negligence, the defendant must have breached their duty to take care and, in doing so, cause damage to the plaintiff that is not too remote a consequence of the breach. As emphasised in the High Court of Australia in Wallace v Kam (2013) and by the Civil Liberty Acts (CLA), there is a normative element to this determination.17 The initial requirement is the establishment of 'factual causation'. The test of causal necessity is used. This test is intended to determine whether or not, on a balance of probabilities, the damage would have been sustained with other defendants breach. Did the defendant's breach 'make a difference'? Was it a 'necessary condition' of the incurrence of the harm? HCA decisions considering what is required to prove factual causation include Adeels Palace v Moubrak (2009) and Strong v Woolworths (2012).18 Establishing factual causation does not suffice to establish causation for the purpose of attributing legal responsibility in the tort of negligence. In accordance with the statutory framework, reflecting the essence of the common law approach, the court must address policy questions: whether or not and why responsibility for the harm should be imposed on the negligent party, and whether it is appropriate for the scope of the defendants liability to extend to responsibility for this harm. According to Wallace v Kam, this raises a policy question involving a 'rule of responsibility'.19 To determine whether or not a consequence is within the scope of liability, the court must consider whether there is any intervening acts (novus actus interveniens) that relieve the defendant of responsibility by breaking thTheink between the breach and the harm, that is, breaking the causal link.

14 Ibid 39. 15 Ibid 40. 16 Ibid. 17 Ibid 40. 18 Ibid. 19 Ibid.

The scope of liability provision also embraces 'remoteness of harm' considerations: to be held responsible, the defendant must foresee 'harm of the same kind' as that suffered by the plaintiff. The defendant need not have foreseen the extent of the harm to be held liable, nor the precise manner in which it occurred; further, the defendant has to 'take the plaintiff as found' with her all his physical and psychological constitutions. 20 Duty to take care The first element of the tort of negligence that must be satisfied is whether or not the defendant owes the plaintiff duty to take reasonable care for the safety of the plaintiff's interests. The duty of care involves a legally recognised relationship between parties as a result of which one is said to have responsibilities to the other, such a case must be reasonably taken. The starting point is to a certain whether a relevant established category of duty of care exists. If a person sustains bodily injury or property damage as a result of a direct impact from the positive act of another, establishing a duty of care on that person who caused the impact will usually be uncontroversial. 21 Difficult cases also involve ones where the loss flows from a ‘pure omission’. There is much debate in courts on how to identify the principles which determine the existence of a duty of care in novel or contentious circumstances.22 In the leading decision, Donoghue v Stevenson [1932], Lord Aitken emphasise the importance of the limiting concept of 'foreseeability', stating that it would be unfair to impose liability upon the defendant if persons in the position of the defendant were not able generally to foresee circumstances of the kind that occurred in this class of persons. All members of the High Court of Australia adopted a multifaceted or flexible approach, often referred to as the 'salient features' approach to evaluating whether or not a duty exists, in Graham Barclay's Oysters v Ryan (2002). Sullivan v Moody can be read with this approach in mind. In Caltex Refineries v Stavar (2009), the judgement carefully described what the court tends to consider when employing their 'salient features' approach. These include the defendant's ability to exercise control to avoid harm, the plaintiff's vulnerability to harm arising from their defendants conduct, the plaintiffs reliance on the defendant, the defendant's assumption of responsibility and the defendant actual or constructive knowledge that the conduct will cause harm to the plaintiff. 23

20 Ibid. 21 Ibid 41. 22 Ibid. 23 Ibid 42.

Not all salient features found (or missing) in a particular case should necessarily be accorded equal weight. No one feature is decisive to the outcome of the decision. One feature may be of such significance, it trumps a number of features that point in the opposite direction. Defences Contributory negligence and involuntary assumption of risk Defences must be pleaded by the defendant. If successful, then negate or reduce the defendant’s liability to the plaintiff. 24 Contributory negligence is a common defence, it is the failure of the plaintiff to take responsible care for her or his own safety or interest. connection with the harm, contributory negligence leads to a reduction in the damages entitlement. The effect of contributory negligence finding is governed by statute. 25 Voluntary assumption of risk is a complete defence. At common law, this defence has three elements, all of which have to be proven by the defendant on a balance of probabilities: 1. the plaintiff new of the facts constituting the danger or risk; 2. the plaintiff appreciated (or subjectively understood) the danger or risk inherent inherent in the fact situation; and 3. the plaintiff freely and willingly encountered the danger or risk26 The most common legislative changes involve reversing the onus of proof with respect to certain elements in the context of statutorily defined 'obvious risks'. The effect of the plaintiff intoxication or illegal conduct The New South Wales Civil Liability Act 2002 includes a very strict provisions concerning the claimants intoxication and illegality, will whereby courts are required to respond in particular ways, which generally leaves the defendant of responsibility. 27

Vicarious liability Vicarious liability is not itself an element of the tort of negligence. It is essentially a loss distribution mechanism. If it is applicable, an employer will be made strictly liable for the tort of her or he is its employee. Two requirements must be satisfied:

24 Ibid 41. 25 Ibid 42 - 43. 26 Ibid 43. 27 Ibid.

1. The person who is negligent must be an employee rather than an independent contractor. The relationship is character characterised by HCA in Hollis v Vabu (2001); 2. The employee must be acting in the course of employment when she or he committed the callous act or omission. The HCA discusses how to make this determination in Bugge v Brown (1919), Deatons v Flew (1949) and New South Wales v Lepore.

Damages assessment A fundamental principle underlying the damages assessment are common law is resitutio in integrum: to restore the plaintiff to her or his position before the tort. The amount of compensation awarded is determined by the plaintiff was, is and will be. Whenever the quantum of damages is assessed, the factfinder considers the following: 

Who was the person before the tort — her or his jobs and interest?



Who with this injured person have been in the future, had he or she not been injured by the defendants taught? What future work and interest which she or he have had?



Who is as per injured person now, after the tort? as ahe trial date, what is her or his job and capacity?



Who will this injured person be in the future? What sort of job will he or she have and what is her or his future capacity? 28

The tort destroys or diminishes an existing capacity. These are compensated by having regard to the plaintiff’s lost future earning capacity, which is the sum the plaintiff might have earned; loss of amenities which is difficult to evaluate as there is no associated market value for such losses; the needs that have been created would not otherwise exist, such as medical care and special equipment.

Statutory changes to common law actions: After the Ipp Panel Report (2002 to 2003) They not only affected damages entitlements in many contexts (for example, by placing a ceiling on non-economic loss awards), but also affect basic common law doctrine, modifying or even eliminating judicial discretion that had hitherto determined when liability should be imposed. They limit who can sue, when they can sue as well as what can be recovered. These legislative changes do not create a new non-fault compensation schemes: they do not provide all injured persons with compensation,

28 Ibid 44.

regardless of the way in which they are injured. In general terms, they make it increasingly difficult for many plaintiffs to successfully litigated in tort. 29

Civil liability act NSW ( 2002)

29 Ibid 45....