NEGLIGENCE

What is negligence?

Negligence is:

doing, or
failing to do

something that a reasonable person would, or would not, do in a certain situation and which causes another person:

damage,
injury or
loss occurs

as a result.

In South Australia the Civil Liability Act 1936 is used to assess the negligence of individuals and the liability they face as a result of any negligent acts on their part.

How is negligence determined?

Whether or not negligence has occurred is a matter of satisfying several questions.

Did the defendant (ie the person being sued) owe the plaintiff (i.e. the person injured) a duty of care?
Did the defendant breach their duty of care?
Did the plaintiff suffer an injury or other damage?
Was the injury or damage caused as a result of the breach of the duty of care?

All these factors must be satisifed. If even one is not satisfied then the plaintiff will not be able to establish that the defendant was negligent.

What is a duty of care?

A duty of care is a legal obligation to avoid causing harm and arises where harm is ‘reasonably foreseeable’ if care is not taken. There must be a sufficient relationship of closeness (sometimes referred to as ‘proximity’) between the two people in order for a duty of care to exist. An example of such a relationship would be a doctor and patient relationship or the relationship between drivers and other road users.

When is a duty of care breached?

In order to establish whether a duty of care has been breached the court will look first of all at the standard of care that is expected in the circumstances.

The standard of care is determined by looking at what a reasonable person would have done (or not done) in the same circumstances. Where a defendant has acted in an unreasonable way or their actions fell well below the standard expected they will be found to have breached their duty of care.

The most common examples are those that apply to everyday activities such as driving. All road users (including pedestrians) are expected to behave according to what is reasonable.

Examples of failure to meet a standard of care:

where a driver fails to keep a lookout and as a result runs into the car in front of them
where a driver is travelling too close to the car in front of them and fails to allow an adequate stopping distance between their car and the one in front

Determining whether a breach of duty of care caused an injury

In some cases it will be obvious what has caused the injury. For example, if a person slips on a wet floor and breaks their arm. In this case there is a clear connection between the wet floor and the injury suffered (i.e. broken arm).

However, in a lot of cases the cause of an injury may be more complex. There may be more than one event that could have caused the injury. For example, where a person slips on a wet floor and injures their arm, but earlier that morning they had injured the same arm in a fall from their bicycle. In such cases there will be issues about exactly which event caused the injury and to what extent.

Contributory negligence

Contributory negligence occurs when the injured person themselves is found to have contributed to the cause of their loss or injury. If a plaintiff has failed to take reasonable care for their own safety or loss then they will be found contributorily negligent.

Some examples of contributory negligence are:

a slip or fall occurring as a result of the injured person’s failure to keep a lookout for their own safety where they could reasonably have been expected to do so
engaging in a high risk activity, such as diving into water from a pier
a driver who fails to see an oncoming car turning right without giving way to them due to inattention on their part (eg were text messaging on their mobile phone and not looking at the road)
a passenger or driver who fails to wear a seat belt [Civil Liability Act 1936s 49]

Vicarious liability

Vicarious liability occurs where one person is held liable for the negligent actions of another. It is commonly relied upon for negligence on the part of employees carrying out their duties. In most cases the employer will be vicariously liable for the employee’s negligence.

Is a claim worthwhile?

Legal advice is necessary to determine:

Whether there is any legal basis to a claim
Who is the person to be sued
The chances of success
The costs involved in going to court e.g. legal cost, court fees and specialist reports, etc

The area of law about compensation for these accidents and injuries is mostly under the Civil Liability Act 1936 and is known as occupier's liability.