What is Negligence?
Negligence is about taking reasonable care to avoid causing damage to another person. It applies to both individuals and businesses. There are several factors that need to exist for an individual or company to be able to sue for negligence: Duty of care, breach of duty, damage, and causation.
Duty of Care
A duty of care makes a person responsible for taking reasonable care to avoid Harm being caused to another. The duty of care exists as a result of the relationship between parties. Key examples of a duty to care are found in relationships such as teacher and student, employer and employee, doctor and patient, as well as lawyer and client.
These duties are commonly derived from legislation. However, they can arise due to the nature of the parties’ relationship. For example, if one party has a substantial degree of control and/or reliance over the actions of another, a duty of care may exist. In this instance the party with greater control has a duty to take reasonable care with their actions so that no harm is caused to the reliant party.
Standard of Care and Breach of Duty
If a person owes a duty of care to another, a court will determine exactly what duties are owed. This is considered to be “the standard of care”. Under the Civil Liability Act 2002, a professional is held to the standard of their fellow professionals. For example, a doctor or accountant would be held to the standard of doctors or accountants and what is widely accepted as competent professional practice.
In other instances, the standard of care is what a reasonable person would do in the circumstances to ensure the possibility of harm is minimised. The standard of care helps balance the rights of the parties by considering what care is appropriate between the parties. If the standard of care is not met, then the person has breached their duty to the other person.
Damages and Causation
For a person to be able to sue in negligence, harm as a consequence of the other person’s actions must be shown. Harm under negligence extends to both physical and mental harm. A court will consider a range of factors and evidence when assessing whether a person suing has suffered harm.
It is important to be aware that the harm suffered must be as a result of the actions of the other person. This is generally determined by applying a ‘but for’ test where the Court will ask: would the person have suffered harm ‘but for’ the actions of the other person.
In a recent case, the NSW Court of Appeal considered who would be to blame for a collapsed balcony.
In this case Bhides owned residential property in Collaroy. Bhides appointed Libra Collaroy Pty Limited to manage the property. In 2012, a group of school children, including the daughter of the tenant, were on the balcony when it collapsed. The tenant sued the owner and the manager. The agent and owner then issued cross claims against each other seeking an indemnity and on the defendant for not locking access to the balcony given previous complaints and issues.
The decision confirmed the following:
- That delegating to a managing agent will not form a defence to a claim for personal injury damages;
- That contractual indemnity may be excused where there is a contribution to the negligence of the other party (contributory negligence); and,
- That a tenant who is on notice of a risk of harm may be found liable for negligence if the tenant could have taken steps to remove the risk.
Summary of the Tort of Negligence
The law of negligence can be complicated. If you believe someone has been negligent in their actions toward you or you are being sued for negligence, contact Etheringtons Solicitors to discuss.
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