L5: Negligence Elements

Question 1

Purpose of Negligence?

Answer 1

Negligence requires individuals who owe a duty of care to another person to prevent reasonably foreseeable harm from occurring.

Question 2

Elements of Negligence?

Answer 2

1. The defendant owed the plaintiff a duty of care
2. The defendant breached their duty of care
3. The defendant’s breach caused harm to the plaintiff
4. The plaintiff suffered loss or harm

Question 3

Element 1: Duty Of Care?

Answer 3

The plaintiff must establish that the defendant owed them a duty of care.
DOC- the legal obligation to be cautious and careful, keeping other people in mind when doing anything that could harm them
A person owes a DOC to another if the risk of harm was reasonably foreseeable
~ If the risk is reasonably foreseeable, then the neighbour principle applies
~ In negligence, ‘neighbour’ is a relationship between two parties who are directly impacted by each others actions or omissions.

Question 4

Settled Law v. Novel Situations?

Answer 4

Settled law= certain relationships whereby the law has enshrined that a duty of care relationship exists
Novel Situation= There is no settled law and so a duty of care is arguable based on the circumstances/ the defendant had knowledge and control to reasonably foresee that harm
Presumed DOC-
.Teacher + student
.Doctor or nurse + patient
.Motorist + other road users
.Manufacturer + consumer

Question 5

Element 2: Breach?

Answer 5

The plaintiff must establish that the defendant breached their duty of care.
Breach: when a person fails to what a reasonable person would have done in the same situation
A person has breached their DOC if~
1. It was reasonably foreseeable that the breach would result is harm to the plaintiff
2. The risk was not insignificant (ie. not far-fetched)
3. A reasonable person in the same situation would have taken precautions to eliminate the risk

Question 6

Element 3: Causation?

Answer 6

The plaintiff must prove that the defendant’s breach was a necessary condition the their loss or harm.
1. The “but for test” can be used to establish causation
2. There may be intervening acts that break the chain of causation

Question 7

Element 4: Loss, Injury or Damage?

Answer 7

The plaintiff can only seek legal remedy if the can prove that they have suffered injury, loss or damage, even if it is minor.
Loss-
~Can be financial, property damage, personal injury, pain and suffering etc.
~The loss cannot be too remote from the breach. The plaintiff must prove that this specific type of loss was reasonably foreseeable.