Last Updated 07 Aug 2016

Negligence

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Introduction

Negligence is a branch of civil law known as tort .tort is defined as a civil wrong in the form of breach of duty from which the legal remedy is an award of damage. Negligence is the doing of something which a reasonable person would not do or the failure to do something that a reasonable person would do which inflicts harm. Negligence covers wide area this meaning that it does not only involve careless conduct and involves a combination of the concepts of duty, breach and sufficient connection in law. The plaintiff does not have to prove that the defendant either intended his act or its consequences. Negligence is based on three essentials which the plaintiff must prove on the base of probability in order to succeed in an action in negligence, this are

(i) Duty of care

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(ii) Standard of care
(iii) Sufficient connection in law

Duty of care (dongue v Stevenson)

Did the defendant owe the plaintiff a duty of care? This is the question we ask, which the plaintiff must prove on the balance of probabilities. if no duty of care is owed the plaintiff calm must fail .the judge has the responsibility for deciding whether or not a duty of care exists as the issue is a question of law having regard to the fact of the case . The method used to test the duty of care will differ depending on whether this case involves negligence advice or negligence act Negligence acts are based on the doctrine of

-Reasonable foresees ability
-Proximity.

Reasonable foreseeability
Where in reasonable foresee ability we get to ask was the defendant able to foresee that his action or omission would cause harm or injury to the plaintiff? . plaintiff must prove that a reasonable person in similar circumstance to the defendant would be aware that their conduct may create a risk of harming the other person .breach of duty at this stage the concept of reasonable foresbility is concerned with the nature of the risk that has been created by the defendants conduct .in other words how would a reasonable person respond to what exact type of risk.

This is concerned with setting standards of acceptable conduct that will be determined with reference to range of factors including the likely consequences on the plaintiff if the risk eventuates and the burden that would be imposed on the defendant to remove the risk (Sullivan v moody ) (2001) 207 CLR 562 . The following steps are the once the court broad approach seems to involve in determining duty of care

3.1Analogies –recognized duties of care

Determine whether there was a reasonably foreseeable risk of injury without that they can be never a duty of care .Determine whether the case is closely analogous to other cases in which duty of care has a ready been established .If not look to the salient features of the case to determine whether they reveal a sufficiently close neighbor relationship to warrant finding a duty of care

3.2.2Neighborhood factor

The friend had brought a bottle of ginger beer after she had drunk some of the ginger beer she poured the remaining onto a dish and decomposed remains of a snail floated out of the bottle .she suffered shock and gastroenteritis .she sued the ginger beer manufacture. Was the manufacture liable to her negligence? The manufacture was reliable.

The court held the manufacturers have general duty to entire consuming public to ensure their products do not contain potentially dangerous effects that can be discovered on a reasonable inspection lord Atkins said that you must take reasonable care to avoid acts or omission which you can reasonably foresee would be likely to injure your neighbor. Who the in law is your neighbor? The answer seems to be persons who are closely and 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 act or omission

3.2 .3 Social policy

Duty of care will not generally be found if doing so would subject the defendants to an intermediate liability. policy consideration also apply in wide range of other cases where they allow the court to weigh competing consideration of legal policy to determine whether despite proof of foreseeability and neighbor hood duty should not be imposed either a tall the party need to succeed in his action. What this means is that general policy issues are only taken into account where it would have been unreasonable to have expected the defendant to have done what would have been nesecassary to prevent the harm that occurred (stovin v wise)

3.2.4Proximity

Was the defendant so close that the plaintiff had to have him in mind? We have three ways to determine this (i) By physical proximity between the person or property of the plaintiff and the person or property of the defendant (ii) By circumstantial proximity that which exists in particular circumstances (iii) By causal proximity in the sense of closeness of directness of the relationship between the defendant particular act or omission and injury that the plaintiff sustained

4.0 Duty of care for negligence advices

There are clear differences between negligence word and negligence advice. Negligence words cannot cause loss by themselves. They cause loss only because persons act on them in reliance. second it is uncommon for people in social or informal context to make statements less carefully than if they were given advice in business or professionally the last words may be foreseeable receive such a coverage or circulation that application of (dongue v Stevenson) might lead to many claims for large amounts damages in the case (shaddock and associates v Parramatta city council {1981} 150 CLR 225) developed the following test of question

4.1 Development of the law

(i)Was the advice given on a serious matter?
(ii)Did the speaker realize that or ought to have realized that his advice would be acted upon (iii)Was it reasonable for the recipient to act on the advice? Once the fact of the case supports the test it can be concluded that the advisor owed the plaintiff a duty of care

4.2 Shaddock test, reliance and assumption of responsibility Shaddock and associate were interested in purchasing some land for development before they made enquires with the local council to ensure there were no plans that would affect they development the Parramatta city council issued a statement saying that there were no plans that would affect the block of land.

Soon after purchasing the Parramatta council widened the road making the block smaller .shaddock could not develop the land as planned because the block had become smaller .if they sold the land shaddock would lose the money because the value had dropped If someone gives information that they know will be relied upon and it is reasonable for others to rely upon it then there is duty to take reasonable care that the information is correct The advisor owed the plaintiff a duty of care in the case of shaddock associate v Parramatta city council

5.0 Sufficient connection in law

The plaintiff must prove that there was sufficient connection in law between the injury and the conduct. To satisfy this plaintiff must show that the breach actually caused the injury suffered which was due to reasonably foreseeable consequences’ of the breach. Sufficient connection in law has two components Causation -the defendant acts caused the plaintiff injury or loses Remoteness –if the defendant’s conducts did cause damage to the plaintiff is the defendant liable for the damage suffered by the plaintiff resulting from his negligence conduct

The plaintiff must suffer actual damage recognized in law .the injury suffered by the plaintiff may fall in one of this classification personal physical injury loss of eye in mechanical injury, loss of hand in construction injury Property damage –involve actual physical damage to property Monetary or financial lose –involve lose of money

Loses of wages

5.1 Causation
We ask the question on a balance of probability. Did the defendant cause the plaintiff injury or lose? And to answer this we have some case test that we use

5.1.1 But for test
The but for test formulated by lord denning in cork v Kirby MacLean is useful for determining causation although it has limitations If you say damage would not have happened but for a particular fault then that fault is in fact a cause of the damage, but if you say the damage would have happened just the same fault or not, then the fault is not the cause of the damage when this happens you find both parties say but for your a fault it would not have happened but it’s both faults are the cause.

In other words if the damage would not have happened without a particular fault then that fault was the cause .the damage would have happened just the same way with or without the fault then the fault was not the cause (cork v Kirby Maclean ltd) The but for test to have some limitation for example say A and B light a fire independently each other in different places and meet up and burns down some house. Under the but for test neither B nor A is reliable as the house would still have burned by the other fire if he hadn’t lit a fire however in particular both would be held equally liable

5.1.2 The common sense test

The high court has expressed dissatisfaction with the” but for test” and its limitation .pentony graw, lennard and parker (2003,p. 386) a preferred approach is to ask on the balance of probability the defendants acts or omission caused or materially contributed to the plaintiff loss damage or injury. The common sense test ask a question of fact (March v stramare (E&MH) pty ltd (1991)171CLR 506)

5.1.3 Novus actus intervenes

Certain activities or action may happen to prevent or break a chain of events or procedures and render the defendant not liable for particular losses suffered by the plaintiff. Consider an employee injured at work due negligence of his employer. they are been rushed to the hospital and the car he is in is involved in another accident causing further injuries to the patient .is the employer liable for this other accident suffered? Under this act it intervenes and rules that perhaps it carelessness of the other road users so the employer is not the cause and is not liable (knightly v johns {1982})

5.2 REMOTNESS

In remoteness we look at the amount of damages the defendant is liable for. The defendant is not necessary liable for all the damages cause as the law must draw the line somewhere. In the case of wagon mound the defendant is not liable only for the kind of damage that were reasonably foreseeable that is damage suffered was not too remote. Example the defendant carelessly places a wooden plank which falls into a plaintiff ship hold and to unknown in both parties is full of vapors. The falling plank strikes and ignites the vapors with serious damages results with remoteness the defendant was not able to foresee that so the defendant is only liable for those type or kind of injury that are necessary foreseeable

5.2.1 TEST OF REASONABLE FORESEEBILITY

Clearly personal injury or physical damages to property from impact are the kind or type of injury are reasonably foreseeable as the results of being hit by the plank, whilst an explosion is arguably to farfetched to be reasonably foreseeable .however if the defendant had known that the hold was full of vapor then the explosion may then be seen as reasonably foreseeable as a consequence of the plank

5.2.2 EGG SHELL SKULL RULE

Egg shell skull rule qualifies remoteness the issue of reasonable foreseebility in relation to personal injury .once the type of damage that is reasonably foreseeable is personal injury then the defendant is liable for all of that kind of injury actually suffered that s why the rule says that you must take you victim as you find him (egg shell skull rule )hence once some personal injury is reasonable foreseeable example if a person has some heart problem the you tell him to go and work in place where his heart will be affected and he collapses the egg shell rule applies (smith v leech brain &co ltd {1962})

6.0 SIGNIFICANCE OF THE ESSENTIAL ON DEFENDANT LIABILITY

The requirement that a plaintiff establish that a duty is owed by the defendant places a limit on the situation in which liability can arise in the first place . once the existence of duty care and its breach has been established , the requirement the plaintiff damages actually suffered not be too remote (that is reasonably foreseeable )place a limit on the extent of the defendant s liability .that is a duty of care limits when liability can rise in the first place ,and once establish ,remoteness limits its extent

6.1 DAMAGES

Definition
Damages is the sum of money payable by a defendant found the main purpose of an award of damage is fair compensation rather than punishment or retribution loss means the damage or loss suffered and can be in personal property or pure economic terms damage is the sum of money awarded for loss or damage suffered 6.2CLASSIFICATION OF LOSS

Losses for damage are awarded in negligence fall into two categories pecuniary And non pecuniary  Pecuniary loss is defined as loss which can be valued or determined by monetary value an award of damage for pecuniary loss aims to return the plaintiff as close as possible to the position he would have been in had the injury not occurred Non pecuniary – is defined as loss which is difficult to asses or determine precisely in money term. Award of damage for non pecuniary loss aim to compensate the plaintiff for their pain and suffering loss of amenity, expectation of life and so on as a result of the injury

7.0Conclusion

In negligence we have to proof that duty off care was owed to the plaintiff by the defendant so that we can have been able to connect it with the law. If no duty of care is owed the plaintiff clam must fail. The judge has the responsibility to decide whether or not duty of care exists. If there are clear facts about it then duty of care is owed to the plaintiff. After establishing duty of care was owed the plaintiff must show that there was sufficient connection in law between the injury and the conduct to satisfy this the plaintiff must show that the breach actually caused the injury suffered which was type was a reasonable foreseeable

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Negligence. (2016, Aug 07). Retrieved from https://phdessay.com/negligence/

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