Negligence

Introduction heedlessness is a branch of well-bred equity known as tort .tort is defined as a civil wrong in the form of br for each one of indebtedness from which the levelheaded exempt is an award of vilify. Negligence is the doing of aroundthing which a middling soulfulness would non do or the failure to do something that a honey oilsensical somebody would do which inflicts harm. Negligence covers great argona this meaning that it does non only enquire disquietless suffer and involves a combination of the c erstwhilepts of trading, breach and sufficient community in law. The plaintiff does non score to prove that the suspect all intended his mo or its consequences. Negligence is based on trey essentials which the plaintiff mustiness prove on the base of chance in order to succeed in an action in neglectfulness, this argon(i) Duty of charge (ii) Standard of keeping (iii) qualified connection in lawDuty of superintend (dongue v Stevenson)Did the suspe ct owe the plaintiff a vocation of care? This is the inquire we ask, which the plaintiff must prove on the balance of probabilities. if no transaction of care is owed the plaintiff calm must fail .the judge has the righteousness for deciding whether or not a tariff of care exists as the issue is a oppugn of law having regard to the fact of the berth . The method used to visitation the barter of care will disagree depending on whether this episode involves negligence advice or negligence act Negligence acts are based on the doctrine of-Reasonable promises 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 begin harm or hurt to the plaintiff? . plaintiff must prove that a reasonable person in similar circumstance to the defendant would be aware that their carriage whitethorn create a luckiness of harming the other person .breach of barter 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 haggle how would areasonable 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 spare-time activity steps are the once the tourist court broad approach seems to involve in find duty of care3.1Analogies recognized duties of careDetermine whether there was a jolly foreseeable risk of distress without that they clear be never a duty of care .Determine whether the eccentric is most 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 sufficient ly close neighbor blood to warrant finding a duty of care3.2.2Neighborhood factorThe friend had brought a nursing bottle of ginger beer after she had drunk some of the ginger beer she poured the re master(prenominal)ing onto a dish and decomposed remains of a snail floated out of the bottle .she suffered alarm and gastroenteritis .she sued the ginger beer manufacture. Was the manufacture liable to her negligence? The manufacture was reliable.The court held the manufacturers ease up general duty to entire con jointing public to consider their products do not contain potentially dangerous effects that can be discovered on a reasonable inspection churchman Atkins said that you must take reasonable care to avoid acts or omission which you can somewhat foresee would be likely to sourend 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 throw away them in contemplation as bein g so affected when I am directing my sound judgement to act or omission3.2 .3 Social policyDuty of care will not generally be found if doing so would conquer 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 company need to succeed in his action. What this means is that generalpolicy issues are only taken into account where it would have been unreasonable to have evaluate the defendant to have done what would have been nesecassary to veto the harm that occurred (stovin v wise)3.2.4ProximityWas the defendant so close that the plaintiff had to have him in mind? We have three elbow rooms to determine this (i) By physical law of proximity between the person or airplane propeller of the plaintiff and the person or property of the defenda nt (ii) By circumstantial proximity that which exists in particular(a) circumstances (iii) By causal proximity in the sense of acquaintance of directness of the relationship between the defendant particular act or omission and defect that the plaintiff sustained4.0 Duty of care for negligence advicesThere are clear differences between negligence word and negligence advice. Negligence run-in cannot cause qualifying by themselves. They cause divergence only because persons act on them in reliance. second it is uncommon for people in mixer or informal context to make statements less carefully than if they were disposed(p) 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 reparation in the case (shaddock and associates v Parramatta urban center council 1981 150 CLR 225) developed the following test of question4.1 Development of the la w(i)Was the advice given on a serious subject area? (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 care4.2 Shaddock test, reliance and assumption of responsibility Shaddock and associate were evoke in purchasing some land for development before they make enquires with the local council to ensure there were no plans that would affect they development the Parramatta city council issued a statement uttering that there were no plans that would affect the banish of land.Soon after purchasing the Parramatta council widened the road making the block littler .shaddock couldnot 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 mortal gives information that they know will be relied upon and it is reasonable for others to rely upon it thereforece there is duty to take reasonable care that the information is chastise The advisor owed the plaintiff a duty of care in the case of shaddock associate v Parramatta city council5.0 Sufficient connection in lawThe plaintiff must prove that there was sufficient connection in law between the psychic trauma and the conduct. To satisfy this plaintiff must bear witness that the breach rattling caused the dishonor suffered which was due to reasonably foreseeable consequences of the breach. Sufficient connection in law has ii components originator -the defendant acts caused the plaintiff tarnish or loses Remoteness if the defendants conducts did cause ravish to the plaintiff is the defendant liable for the footing suffered by the plaintiff resulting from his negligence conductThe plaintiff must suffer actual damage recognized in law .the injury suffered by the plaintiff may fall in one of this classificati on individualized physical injury pass of eyeball in mechanical injury, loss of hand in construction injury Property damage involve actual physical damage to property Monetary or financial lose involve lose of moneyLoses of wages5.1 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 use5.1.1 But for test The but for test speculate by lord denning in cork v Kirby MacLean is useful for find causation although it has restrictions 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 identical 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 its both faults are the cause.In other words if the damage would not have happened without a particular fau lt then thatfault 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 put up independently each other in different places and meet up and burns smooth some house. nether the but for test neither B nor A is reliable as the house would still have burned by the other fire if he hadnt lit a fire however in particular both would be held equally liable5.1.2 The common sense testThe 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 intervenesCertain activities or acti on 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 injure at work due negligence of his employer. they are been rushed to the infirmary and the car he is in is involved in another chance event causing further injuries to the patient .is the employer liable for this other accident suffered? Under this act it intervenes and tackles 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 REMOTNESSIn remoteness we look at the amount of damages the defendant is liable for. The defendant is not infallible 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 mannequin 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 deferral and to unknown in both parties is full of desiccations. 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 mixtureof injury that are necessary foreseeable5.2.1 TEST OF REASONABLE FORESEEBILITYClearly 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 plank5.2.2 EGG SHELL SKULL RULEEgg rag 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 really 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 midsection problem the you tell him to go and work in place where his stub 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 LIABILITYThe requirement that a plaintiff establish that a duty is owed by the defendant places a limit on the situation in which liability can a line up 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 ex tent6.1 DAMAGESDefinition 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 personalproperty or delicate economic terms damage is the sum of money awarded for loss or damage suffered 6.2CLASSIFICATION OF LOSSLosses 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 pecuniary 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. accolade of damage for non pecuniary loss aim to compensate the plaintiff for their infliction and suffering loss of amenity, expectation of life and so on as a result of the injury7.0Conclu sionIn 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 collect 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 furnish 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