Understanding the Elements of Negligence

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Understanding and satisfying the elements of negligence can be complex and overwhelming. At Odyssey Legal, we are experts in all aspects of civil & personal litigation, including negligence disputes. Let us handle the dispute for you and let you get back to the more important things.

Schedule a free initial consultation with our expert civil & personal litigation lawyers and take the first step towards peace of mind.

Executive Summary

Negligence disputes will arise when one party claims that another party failed to exercise the level of care that a reasonable person (or a professional) would have under similar circumstances, resulting in harm or damages.

To satisfy a negligence claim, the plaintiff must satisfy the four (4) elements:

1.    A duty of care was owed by the defendant;

2.    A duty of care was breached by the defendant;

3.    The breach caused the harm or damage to the plaintiff;

4.    The plaintiff suffered actual harm or damages as a result of the breach.

Negligence disputes can arise in various contexts, such as professional malpractice, property damage, building and construction disputes, or defective goods or services.

Within this article, our civil & personal litigation lawyers will discuss the elements of negligence and the legislation and case law surrounding negligence.

Elements of Negligence

The elements of negligence are:

1.    A party owed another party a duty of care:

A duty of care is an obligation requiring a person or company to act reasonably to mitigate harm or damage occurring to another party.

Common examples where a duty of care will arise, includes (without limitation):

a.    Doctor to patient;

b.    Lawyer to client;

c.     Landlord to tenant;

d.    Occupier to entrant of private premises; and

e.    Supplier of goods or services to a consumer.

2.    A breach of the duty of care:

In Wyong v Shirt (1980) 146 CLR 40, the High Court outlined the test to determine whether a defendant had breached their duty of care. The following questions were required to be answered to satisfy the test:

a.    Would a reasonable person in the position of the defendant have foreseen risk of injury to the plaintiff?

b.    What would a reasonable person have done in response to that foreseeable risk?

This test had been subsequently adopted into section 9 of the Civil Liability Act 2003 (CLA), which states:

‘General principles

(1) A person does not breach a duty to take precautions against a risk of harm unless—

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and

(b) the risk was not insignificant; and

(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions. 

(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things)—

(a) the probability that the harm would occur if care were not taken;

(b) the likely seriousness of the harm;

(c) the burden of taking precautions to avoid the risk of harm;

(d) the social utility of the activity that creates the risk of harm.’

Section 22 of the CLA also provides guidance to a court in determining the standard of care of professionals, namely:

‘Standard of care for professionals

(1) A professional does not breach a duty arising from the provision of a professional service if it is established that the professional acted in a way that (at the time the service was provided) was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice.

(2) However, peer professional opinion can not be relied on for the purposes of this section if the court considers that the opinion is irrational or contrary to a written law.

(3) The fact that there are differing peer professional opinions widely accepted by a significant number of respected practitioners in the field concerning a matter does not prevent any 1 or more (or all) of the opinions being relied on for the purposes of this section.

(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.

(5) This section does not apply to liability arising in connection with the giving of (or the failure to give) a warning, advice or other information, in relation to the risk of harm to a person, that is associated with the provision by a professional of a professional service.’

The term ‘professional’ is not defined in the CLA. However, the Court in held that a professional is to include a broad definition of a person in a paid occupation or vocation with prolonged training or some formal qualification.

3.    Causation

A plaintiff must prove causation of damage, even if the conduct was prima facie negligent. The common law test of causation in Queensland is contained within section 11 of the CLA, which provides:

‘General principles

(1) A decision that a breach of duty caused particular harm comprises the following elements— 

(a) the breach of duty was a necessary condition of the occurrence of the harm (factual causation);

(b) it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused (scope of liability).

(2) In deciding in an exceptional case, in accordance with established principles, whether a breach of duty—being a breach of duty that is established but which can not be established as satisfying subsection (1)(a)—should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party in breach.

(3) If it is relevant to deciding factual causation to decide what the person who suffered harm would have done if the person who was in breach of the duty had not been so in breach—

(a) the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party who was in breach of the duty.’

Further, section 12 of the CLA stipulates that the plaintiff bears the onus of proving, on the balance of probabilities, that the defendant’s breach was the cause of the harm or damages.

4.    Damages

The plaintiff needs to demonstrate that they have suffered harm or damages because of the defendant’s breach of their duty and that such damages would have been reasonably foreseeable. The damages that may be available to a plaintiff include:

a. Compensatory—These are intended to compensate the plaintiff for their losses. This can include economic damages (i.e. costs to repair property) and non-economic damages (i.e. pain and suffering or distress).

b. Aggravated Damages—These damages are awarded where there is an aggravating feature of the conduct (i.e. done with malice) and that conduct warrants the further award of damages to the plaintiff.

c. Exemplary Damages—This award of damages is intended to punish the defendant and deter similar conduct in the future, where the defendants conduct is outrageous and a complete disregard of the plaintiff’s rights.

Conclusion

The above information demonstrates that even if someone has done something negligently, it does necessarily mean that you will be successful in any claim against them. This information reiterates the importance of obtaining legal advice and ensuring that your claim has satisfied the required elements of negligence, prior to commencing proceedings.

Free Consultation

Understanding and satisfying the elements of negligence can be complex and overwhelming. At Odyssey Legal, we are experts in all aspects of civil & personal litigation, including negligence disputes. Let us handle the dispute for you and let you get back to the more important things.

Schedule a free initial consultation with our expert civil & personal litigation lawyers and take the first step towards peace mind.