Updated: Apr 22
What does negligence mean?
Under Australian law, negligence occurs if a person fails to take reasonable care to avoid causing damage to an individual or business to whom they owe a duty of care. To be considered negligence, the damage must be caused through the breach of a duty of care owed to that other party. It can be the result of either performing an act or failing to act when necessary.
Negligence is a cause of action that falls under the law of tort (which means 'wrongdoing'). A cause of action is the set of facts that give rise to a legally enforceable claim. Another example of a cause of action is a breach of contract.
Author: Millicent Nhepera, Law Graduate (LLB, LLM), located in Australia.
How can negligence be proven?
For an individual or business to successfully sue someone for negligence, the party making the allegation needs to be able to prove the negligence.
In order to prove that negligence has occurred, the following four questions must be answered:
Did the person being sued, i.e. the respondent (or 'tortfeasor'), owe the person injured, i.e. the applicant, a duty of care?
Was the duty of care breached by the tortfeasor?
Has the applicant suffered any injury or any other damage?
Was that injury or damage caused due to the breach of the duty of care?
It is necessary to satisfy all these factors to establish a claim for negligence. Failing to do so will mean that the person alleging negligence may be unable to establish that there was negligence and will therefore be unable to claim a remedy.
When is a duty of care owed?
A duty of care is a legal duty that is owed by one individual to another. Having a duty of care means an individual who owes the duty is required to take reasonable steps to avoid causing any foreseeable harm to the other person. However, a duty of care is not something that every person owes to every other person. The two parties must have a relationship of closeness or proximity sufficient to give rise to a duty of care.
Usually, a duty of care arises due to the nature and characteristics of the relationship between the parties. For instance, if one party has a substantial degree of reliance and/or control over the actions of the other party, a duty of care may exist. Here, the party having greater control will have a duty to take necessary care for their actions so that the reliant party is not harmed in any way.
Examples of some of the relationships that give rise to a duty of care include:
Doctor and Patient
Solicitor and Client
Director and Company
Manufacturer and Consumer
Landlord and Tenant
Supplier and Consumer
Employer and Employee
How is a breach of duty established?
If an individual owes a duty of care to any other person, it is the court that determines exactly what duties are owed by that person. In determining this, the court will look at “the standard of care”. A standard of care is the benchmark of behaviour in a particular circumstance.
The standard to which duty is owed depends on the varying circumstances of individual cases, as well as the nature of the relationship in question. Usually, the expected standard of care is what is expected from a reasonable, ordinary person. To assess the specific conduct that fulfils the standard, the Court generally considers the things that an ordinary, reasonable person will likely do in the position of the defendant.
If any person fails to meet the standard of conduct by performing or not performing an action that is usually expected from a reasonable person or a relevant equivalent professional, he or she may be in breach of their duty of care.
and as per the Civil Liability Act 2002. A professional is always held to the standard of care of their fellow professionals.
Once the duty of care is established, the issue then becomes whether the standard of the duty of care was fulfilled or not. In other words, what were the things that the duty of care required the person owing it to do or not to do?
Determining if a breach of duty of care caused an injury
It is not always easy to determine whether the injury to the applicant is caused due to a breach of duty of care. While in some cases, the cause of the injury might be obvious, in many cases, the cause of injury can be more complex. For instance, if a person, walking on a wet floor, slips and breaks his arm, a clear connection can be established between the wet floor, and the injury suffered, i.e. the broken arm.
However, at times, there can be more than one specific event that could have caused the injury. Like, where an individual, walking on a wet floor, slips and injures his arm, but earlier that day, he had taken a fall from his bicycle and injured the same arm. Here, there will be uncertainties about which event or whether both the events caused the injury and to what extent.
How to determine if there is a basis for a claim?
To determine whether there is a basis for a claim, it is necessary to seek legal advice on the following factors:
whether any legal basis for the claim can be established
what is the nature of the relationship of the claimant to the wrongdoer
what are the chances of a successful claim
what costs are involved in pursuing a claim, including court fees, legal costs, and specialist fees (such as experts)
What are the time limits?
In Queensland, there is a 3-year time limit for claiming damages arising from a personal injury due to negligence.
This time limit is set out in the Limitation of Actions Act 1974 (Qld) and equivalent legislation in other States and Territories.
Examples of negligence in Australian Law
Jackson v McDonald's Australia Ltd  NSWCA 162
Jackson v McDonald's was a case held in New South Wales in 2014. Mr Jackson alleged that while walking through a recently mopped floor, he slipped and fell down a set of stairs. Mr Jackson made a claim against both McDonald's, and Holistic a cleaning company contracted by McDonald's.
The court had to answer the question of whether there was causation. That is, whether Mcdonald's caused the fall and subsequent injury. McDonald's and Holistic were found to be in breach of their duty of care because they did not mop up the floor immediately, therefore failing to make sure that there was a clear pathway for people to walk through.
However, the case was ultimately dismissed. The court found that the wet area that Mr Jackson walked through was clearly marked with a “wet floor” warning. The court also found that he did not hold on to handrails while walking through that wet area. For that reason, the court found that he contributed to most of the negligence. A reasonable person would have seen that their shoes would get wet and increase the risk of a slip, and not walk through it.
This case clearly illustrates the importance of proving the element of causation. If that cannot be proven, then the case will fail.
Ardent Leisure Group Limited
Another example is the 2017 Gold Coast Dreamworld theme park tragedy on the Thunder River Rapids ride. Four people died when they boarded the ride which malfunctioned and collided with another raft while they were on it.
Under the Work Health and Safety Act 2011 (Qld), the theme park owed its patrons a duty of care under s19(2), under which they must ensure the health and safety of members of the public are not at risk.
However, the park failed on several fronts to uphold its duty. For example, the riders were not adequately restrained in the rafts, the conveyor belt that was lifting the raft was unsafely modified, none of the employees pressed the “stop ride” button, and there was no separator to stop the rafts from colliding.
It was acknowledged that Dreamworld fell short of the requisite safety standard, with the defective equipment and lack of adequate supervision of the rides by staff. Dreamworld parent company Ardent Leisure was fined $3.6M in 2020, and convictions were recorded.
This is the largest Work Health and Safety fine ever given in Australia.
It was held that the resources directed towards safety were grossly below the standard that is expected from a theme park. There were several measures that could have been taken to minimise the risk that was ignored.
The law of negligence can be complex. How the law is decided depends on the specific details and circumstances of each case and there is no "one-size-fits-all" approach.
Negligence cases are also time-sensitive and statutory time bars apply to claims. This is why it is essential to seek legal advice from a lawyer if you think that someone has been negligent towards you, and may satisfy the criteria defined in this article.
Farrah Motley | Legal Principal
PROSPER LAW - A Commercial Law Firm for Businesses
M: 0422 721 121
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