3 The Tort of Negligence

Learning objectives 

On completion of this Chapter, you should be able to:

  • Describe the tort of negligence
  • List and explain the necessary elements required to establish negligence
  • Identify the defences a defendant can raise in an action for negligence
  • Identify and discuss the application of the tort of negligence to:
    • Occupier’s liability
    • Strict liability
    • Vicarious liability
    • Product liability
    • Breach of statutory duty
    • The Rule in Rylands v Fletcher.

Watch this short video (4:07 minutes) which will give you a brief overview of “What is Negligence’’? and will help you better understand the rest of the chapter.


“What is Negligence’’? video by Sharon Sanders, Centre of Teaching and Learning at Southern Cross University, licenced under CC BY-NC-SA 4.0

The transcript for this video is located under the Video transcripts and PDFs heading in the Back Matter of the book.

Key terms 

Here are some terms you will encounter in this Chapter, which will help you understand the topic of negligence:

    • Contributory negligence: negligence by the plaintiff that has contributed to their loss, damage or injury.
    • Negligence: an indirect interference with the person or property of the plaintiff.
    • Negligent misstatement: a false or inaccurate statement of fact made by a person recklessly or knowingly that there were no reasonable grounds for such a belief.
    • Occupier’s liability: as an occupier of premises, whether you own or rent, if you have control over the property, you must take reasonable care to ensure anyone who comes onto your premises is reasonably safe, although what is reasonable will vary according to the circumstances.
    • Product liability: as far as manufacturers are concerned, at common law they owe a duty of care to consumers who purchase their goods and that the goods are fit for purpose. There is an overlap here with the Goods Act 1951 and the Independent Consumer and Competition Act 2002 which provide protection for the consumer.
    • Res ipsa loquitor (‘the facts speak for themselves’): a doctrine that provides that the elements of duty, breach and damage can sometimes be inferred from the nature of the accident even though the exact act of negligence cannot be exactly identified.
    • Strict liability: liability regardless of fault where the defendant is held liable even though they were not at fault.
    • Tort: a civil wrong other than a claim for a breach of contract.
    • Vicarious liability: where a person is held responsible for the acts or omissions of another even though they may not have personally been at fault (for example, employer and employee).
    • Voluntary assumption of risk: where the plaintiff freely and voluntarily understood and assumed the risk that caused the injury.

Introduction 

Just note that when reading this chapter that you, the reader, will be treated as being the plaintiff unless otherwise stated.

Chapter 3 begins by considering what a tort is and the basis on which it operates; that is, through compensation for the injured party. It then looks at the function of the law of tort, the principles on which the law of tort rests, and the rights protected by the law of tort. The chapter then moves on to consider in more detail what is perhaps the most important area of tort law: negligence, and in particular how it relates to business, but also to you personally if you or your property is damaged by the actions of another party because of their carelessness (or negligence), for example, a car accident. This chapter then finishes by providing a brief overview of seven torts that have been absorbed into negligence including: vicarious liability; occupier’s liability; product liability; negligent misstatements; strict liability; breach of statutory duty; and the rule in Rylands v Fletcher.

Part 1: Why is an understanding of the tort of negligence important?

The law of torts is an area of the law that can become relevant for you, and your business, often when you least expect it but only after a loss-making event has occurred. It is a legal wrong where one person or entity injures the person or property of another person and for which the usual remedy is an award of damages. For example, you go to the local shop to get milk and as you enter the shop you slip and fall on a wet floor where another customer had dropped a bottle of dishwashing detergent which the staff of the shop owner were still to clean-up. You break your hip. Can you get compensation? 

This is the sort of scenario where a knowledge of the law of torts may come to your assistance. This is what we lawyers call a classic negligence action and it may enable you to recover compensation in the form of damages. Just as a matter of interest, who would you sue, if anyone? And if you were the shop owner, wouldn’t this be a situation where it would have been a good idea to have liability insurance?

Video reference

For an interesting overview of Torts watch this video on Principles of Justice – Tort Law. 

While not every event is foreseeable (or not far-fetched or fanciful), a lot of potential injury causing or loss-making events can be avoided by establishing good business practice. This means being proactive and taking the type of steps that a reasonable person in business might take if they were in a similar position and understanding what the legal consequences might be if such steps were not taken.  

Business tip

Insurance pays

One of the features of tort law is that a person or business who is at fault should bear the consequences of their actions. In a negligence action this can be catastrophic for the wrongdoer, and beyond their ability to pay. The financial cost of a tort action is meant to deter others from intentionally causing harm. But the growth of liability insurance cover has largely negated this fear. Today, a potential wrongdoer knows that they can take out insurance cover against potential business risk. Any monetary loss or damage that a victim may suffer because of their actions will be borne by the insurance company rather than the business or individual.

 

What types of tort actions are there?

Just so you are aware, Tort law is not just about negligence (though you might think so). It is the most common of tort actions, other tort actions include:

  • liability for a breach of duty to take reasonable care (negligence)
  • liability arising out of occupation or possession of property (occupier’s liability and part of negligence as well as private nuisance)
  • direct interferences with the person, property or goods of another (trespass)
  • liability for misrepresentations that affect a person’s reputation and standing in the community (defamation), or which cause financial loss (negligent misrepresentation)
  • interference with contractual relationships (inducing breach of contract, conspiracy or intimidation)
  • a fraudulent misrepresentation (if it doesn’t form part of a contract, it may amount to the tort of deceit); and
  • breach of statutory duty (involving motor traffic and work health and safety issues, and an action in its own right).

Part 2: What are the general principles of tortious liability?

The word ‘tort’ is a French word and it means ‘civil wrong’. It is a type of behaviour by an individual (sometimes called a ‘tortfeasor’ but more often a ‘defendant’), in the form of an act or omission not authorised by law that causes loss, damage or injury to another individual (such as yourself and who we call a plaintiff), their property, business or economic interests. 

The law of torts is about the infringement of an individual’s rights and the protection of those rights. If a person has suffered a loss or damage (which the law describes as ‘harm’) because of something that another person has done—or if they have suffered damage because of something that other person should have done but didn’t—then the law of torts determines whether the injured person is entitled to seek a remedy for that loss or damage from the wrongdoer. That remedy is usually in the form of compensation or monetary damages.

Business tip

Do not assume that tort actions always result in the wrongdoer paying for the loss or damage suffered by you if you are the victim. In fact, before you commence a legal action it pays to do two things: 

  • first, find out whether you have suffered a ‘harm’ (or injury) that the law recognises
  • second, can the defendant pay damages plus legal costs? Do they have personal injury or professional indemnity insurance to cover the loss and legal costs? If they do not have insurance, do they have sufficient personal assets to cover your loss and legal costs?

If the defendant does not have either insurance cover or any assets, it may not be worth suing. But if you (as the plaintiff) decide that you still want to sue, and the matter goes to court and you win, can you recover damages from the defendant? The answer is: ‘Probably nothing but your lawyers still expect to get paid’. You have to ask yourself whether it is worth the time and effort to sue. Just as the defendant must take you as the plaintiff as they find you, so must you take the defendant as you find them.

Win, lose or draw in court, the objectives of the law of torts are basically twofold:

  • to protect the rights and interests of you if you are the victim by requiring the wrongdoer to rectify your loss or damage (compensation) and
  • to impose a burden of rectification on the wrongdoer which will act as a deterrent to others who may want to act in a similar way

Just remember that torts are breaches of the civil law, not the criminal law and not to be confused with the civil law legal system found in Europe and other parts of the world. This means that if you are the plaintiff:

  1. You commence the action
  2. You have the onus of proof, on the balance of probabilities, that the loss or damage you suffered was caused by the actions/omissions of the defendant
  3. You can show that you should be entitled to a remedy for the loss you have suffered.

What is the difference between law of torts and contract law?

In both tort and contract, the law is seeking to regulate a private relationship between two or more parties, with both (or all) aiming to provide remedies for the loss or damage suffered by the actions of the wrongdoer. 

In tort law, any rights or obligations agreed between the parties are imposed by law, not as a result of agreement, and they can be enforced only by an injured party. In contract law, the rights or obligations between the parties are created through their agreement and are enforceable only by the parties to the contract (and usually then only by the innocent party).

Damages in both tort and contract law cases generally restore the injured party back to the position they occupied (were in) before the tortious act or breach of contract occurred. So, if you are the injured party, how you decide to proceed will generally be influenced by the sort of outcome you may want. 

In contract law, damages are awarded to place you in the position you would have occupied if the contract had been executed according to the agreement. A contract law action can also include claims for loss of expected profit and ‘loss of expectation’, which cannot be included in a tortious claim.

Sometimes the same set of facts can mean that you, as the injured party, may have a possible action in both tort and contract. For example, if a potential buyer of a business employs an accountant to advise on the financial viability of purchasing that business and they fail to do so with due care and diligence, actions may ‘lie’ in both contract and tort law. In contract, it is an implied term in the contract that the accountant will act with due care and diligence while in tort the action would be in negligence for breach of their duty of care.

It could be argued that in the contract action there is an ‘implied’ assumption (that is, one that is not expressed in the contract) that the accountant will exercise due care when examining the financial statements of the business. If the accountant can be shown to have failed in carrying out their implied duties appropriately, then the accountant has breached the contract with the potential purchaser.

The accountant may also have an obligation to the client in tort (in this type of situation, ‘in negligence’). As we shall see later in this chapter when considering the tort of negligence, the starting point for such an action is the relationship between the parties and whether the accountant owes the potential purchaser a duty of care when it comes to carrying out their professional responsibilities. The question for the court to determine is whether a reasonable accountant in the same position would have discovered any anomalies in the financial statements.

However, having the two possible causes of action does not mean the injured party can recover damages under each action. Strategically, it gives the plaintiff a better chance of success because if one action fails, it may be possible to succeed under the other.

What is the difference between tort law and criminal law?

Both tort law and criminal law seek to impose duties on people, but they do it in different ways and with different outcomes. Yet interestingly, there is an overlap with the two areas of law, for example, in the area of trespass to the person where there are three tort actions: assault, battery and false imprisonment, all of which are also potential criminal offences.

Tort law is private in nature in the sense it is brought by a person who has suffered some form of loss or damage and who is now seeking compensation from the person who caused that loss or damage. Criminal law, on the other hand, is principally public in nature, as breaches are enforced and ‘prosecuted’ by the state, and the outcome for the wrongdoer is punishment, generally imprisonment and/or a fine. 

Criminal law and contract law distinguished from tort law

Legal Criterion Criminal Law Tort Law
The standard of proof The Crown must prove its case beyond reasonable doubt The plaintiff must prove their case on the balance of probabilities
Sanctions and remedies The focus is on punishing offenders for their offence The focus is on compensating victims
Consent Whether the victim consents to the accused’s actions is irrelevant The injured party can consent to the defendant’s actions
Role of the Crown A convicted person can be pardoned The Crown has no authority to pardon a tort short of legislating
Agreement No agreement between the parties. Tortious duty is imposed independently of the consent of the parties, although rights and duties may be varied contractually

Remedies

The most common ‘remedy’ in a tort action is monetary compensation or damages. However, sometimes an injured party, such as yourself, may want some form of relief other than money. The relief you will be seeking will depend on the type of damage you have suffered. For example, if it is damage to your reputation, you may be seeking an injunction (a discretionary equitable remedy) to stop the offending party from causing further damage to your reputation; or you may seek an order of specific performance (also a discretionary equitable remedy) directing the other party to carry out their obligations. Both remedies are discretionary as the court is not obliged to award either of them, even if the plaintiff wins their case.

Although there may be remedies available to you as a plaintiff, there must be some reason for shifting the loss from you to the defendant. Sometimes this is not possible because:

  • there may be statutory restrictions on what you as the plaintiff may recover (such as the civil liability legislation which excludes intentional conduct such as tobacco related claims)
  • there may be no legal remedy because the harm may have been caused by accident or misjudgement
  • the claim may be considered too trivial to warrant the attention of the courts
  • there may be a complete defence available to the defendant: you knew what the risk was and went ahead regardless, and was injured as a result, for example in sport

Also, the fact that you as a plaintiff has suffered ‘harm’ recognised by the law and can shift the blame for their loss or injury on to the defendant does not automatically mean you will win your case. Whether you win or not may depend on a number of factors, including:

  • the inability to find the tortfeasor
  • the difficulty with proving fault on the part of a defendant
  • whether the defendant is insolvent or uninsured (recovery of damages is difficult or impossible even if a tort is proved if the defendant has no money)
  • whether you as the plaintiff has been partly or fully responsible for the damage they suffered—that is, contributory negligence or voluntary assumption of risk
  • the cost of litigation (can you, as the plaintiff, afford the legal costs if you lose?)
  • delay in obtaining compensation, placing pressure on you as the tort victim to settle the action before going to court, thereby increasing the chances of under-compensation
  • difficulties in assessing accurately your actual loss—that is, assessing whether your injuries will worsen in the future.

What are the time periods for tort actions?

A criminal law action has no time limits within which an action can be brought by the State. In the case of a tort action, under s 16(1) the Frauds and Limitations Act 1988 an action you must commence your action within 6 years from the date on which the cause of action accrued (if the action is against the State, then under the Claims By and Against the State Act 1996 you have six months from when the claim arose) or the defendant may be able to argue that your action has become ‘statute-barred’ (that is, the plaintiff cannot proceed any further with their claim)

Reflection question

If you are injured because of the actions of another person, would your preference be to take action against the person who injured you in tort law or criminal law? Explain why.

Part 3: What is the tort of negligence?

Video reference

A simple introductory video titled Tort of Negligence: Standard of Care that will help you understand what negligence is.  

As noted earlier, there is a wide range of torts, each covering a different type of ‘civil wrong’. However, by far the most important tort is negligence. It is a tort capable of almost infinite expansion and adaptation, and its impact has been extensive on both business and the community. 

In brief

A definition of negligence

Negligence is omitting to do something that a reasonable person would do, or doing something that a prudent and reasonable person would not do, to prevent harm. It is the failure to exercise reasonable care and skill that results in an unreasonable risk of foreseeable injury.

For most people, negligence generally means carelessness or thoughtlessness. However, this is not completely accurate. Careless acts or misjudgements do not necessarily amount to negligence, and therefore do not necessarily lead to a court action in negligence. As far as the law is concerned, a person is only liable for harm that is a foreseeable consequence of the defendant’s actions; that is, their failure to exercise reasonable care and skill which causes you injury, which carries legal consequences.

In an English House of Lords case called Lochgelly Iron and Coal v McMullan [1934] AC 1, Lord Wright described the concept of negligence in the following way:

In strict legal analysis, negligence means more than needless or careless conduct, whether in omission or commission. It properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing.

The origins of negligence are based in the common law, with roots that go back to a case in Scotland in 1932 involving ginger beer and the remains of a snail in an opaque bottle – the House of Lords decision in Donoghue v Stevenson [1932] AC 562 marked the beginning of the modern law of negligence and laid the groundwork for business liability and today’s consumer protection laws.

Video reference

Watch the short video above titled The Decomposing Snail and think about the following: 

  • who were the parties (the plaintiff and defendant)?
  • Briefly summarise the facts
  • What were the issues before the court?
  • Briefly summarise the court’s decision
  • Just as a matter of interest, would you sue if you were in Donoghue’s place?

Part 4: What are the roles of the plaintiff and the defendant in establishing the elements of negligence in PNG? 

As the plaintiff, you can only commence legal action if you can first establish that you suffered harm. ‘Harm’ is broadly defined and includes death, personal injury, damage to property and economic loss. 

What does the plaintiff have to establish? 

If you suffer loss or damage (harm) that is recognised by the law as being of a type for which you should receive compensation (usually damages), then you must establish (on the balance of probabilities) three (3) criteria or your action fails: 

  • Step 1: As the plaintiff you must first establish that the defendant owes you a duty of care (here the focus is on the foreseeability of causing harm to you as the plaintiff). This is essentially a question of law that the judge decides based on common law principles.
  • Step 2: If the defendant owes you, as the plaintiff, a duty of care, then you must establish that the defendant breached that duty of care? This step requires establishing what is ‘a reasonable standard of care’, a question of law.
  • Step 3: If you can establish breach, then the final step you must establish as the plaintiff is that that the defendant’s actions caused you, as the plaintiff, to suffer loss or damage? The loss or damage must be recognised by law and be factually caused by the defendant.

What is the ‘reasonable person’ standard?

To determine fault, the court examines the defendant’s conduct and considers it against a standard of what a ‘reasonable person’ would or would not do in similar circumstances. The ‘reasonable person’ is someone of normal intelligence, credited with such perception of the surrounding circumstances and knowledge of other pertinent matters as a reasonable person would possess in similar circumstances. For example, driving a car requires a certain set of demonstrable skills and knowledge. The same applies to professional standards and behaviour, such as expected knowledge, experience and skills. It is this requirement of reasonableness which has substantially contributed to the flexibility inherent in the negligence action. It permits social judgments by the courts relevant to the times to be made within the law-making process.

Once you, as the plaintiff, has established all three elements of duty, breach and damage, then the onus shifts to the defendant to present their case (although it should be noted that the defendant will have already argued that they do not owe you a duty of care; or if they do, then they haven’t breached it; or if they have, you did not suffer damage as a result of their breach). 

What does the defendant have to do? 

  • Step 4: Once you have established your case, the onus shifts on to the defendant to establish a defence—again, on the balance of probabilities this could be: contributory negligence, voluntary assumption of risk, illegality or inevitable accident.  

Contributory negligence aside, if the defendant succeeds in establishing a defence, you as the plaintiff has lost your claim and the case ends at this point. If the defendant can establish contributory negligence on your part (that is, you failed to take reasonable care for your own safety), the court can reduce the amount in damages the defendant may have had to pay by an amount it considers fair and equitable, which can be up to 100 %!  

  • Step 5: If the defendant fails to establish a defence, or you contributed to your injury or loss, that only leaves the court to decide what sort of compensation or damages (usually monetary compensation) the plaintiff is entitled to 

Online reference

At this point note that the PNG Magistrates’ Manual – Chapter 15 contains an overview of key concepts in Tort (and contract). 

Let’s examine each of these steps in greater detail 

It is important to note that each of the three elements, that is, duty of care, breach of that duty and damage suffered by you as the plaintiff, must be established by you. 

Step 1: Does the defendant owe a duty of care to you – the plaintiff? 

Video reference

This is quite a good explanation of the first step in deciding whether you have a cause of action in negligence. Watch this video titled Personal Injury: Experienced Attorney’s Outline

A duty of care is the obligation owed by one person (the defendant) to another (the plaintiff) and is based on the relationship between them. It is perhaps the prerequisite of all negligence cases because it goes to the heart of liability by examining foreseeability of potential harm. It is the first question that a plaintiff must establish. In many cases you will find that the defendant does not argue this element because it is established from previous case decisions. 

To establish a ‘duty of care’, you as the plaintiff must show that the kind of harm you suffered was reasonably foreseeable and was a result of the act/s or omission/s of the defendant. One way you can do this is by showing that you were one of the class of people who would foreseeably be at risk of injury if the defendant failed to take reasonable care. 

The duty concept is a control mechanism and is a question of law (not fact, which is decided by a jury if there is one) determined by a judge who assesses the particular facts of each case. Note that duty will only be imposed when it is reasonable in all the circumstances to do so.  

Depending on the facts, cases fall into two categories: 

  • those where duty is said to be established because the facts fall into a well-recognised duty category: for example, motorist–other road-users, employer–employee, manufacturer–consumer
  • the ‘novel’ cases where the question of whether a duty of care exists is difficult to answer and depends on the surrounding facts: for example, in cases of economic loss, psychiatric illness and medical negligence 

If you cannot show that the defendant owes you a duty of care, the action fails.  

Is it safe to drink ginger beer in an opaque bottle? 

The starting point for the modern law of negligence was the decision of the English House of Lords in a case called Donoghue v Stevenson (1932) AC 562.. It established a general test for when a defendant owes a duty of care to a plaintiff. Prior to this case, a buyer of a faulty good who suffered a financial or physical loss could only sue for a breach of contract.

Video reference

Watch this video on Donoghue v Stevenson, preferably while you drink a bottle of ginger beer in an opaque bottle with a friend to get really in the mood. 

Think about the following while watching the video and drinking your ginger beer:

  • who were the parties (the plaintiff and defendant)?
  • Briefly summarise the facts
  • State the issue before the court
  • Briefly summarise the court’s decision. Do you agree with it?

In a 3:2 decision, the House of Lords held that Donoghue was a ‘neighbour’ to the manufacturer and bottler of ginger beer (Stevenson), and the one to whom a duty of care was owed. But why? Stevenson should have reasonably foreseen that careless or negligent bottling could have harmed a consumer (not necessarily the purchaser). 

In this case, Stevenson failed to ensure that consumers such as Donoghue could drink the contents free of impurities. As a result, she suffered shock from seeing the remains of a snail, part of which she had consumed, and suffered severe gastroenteritis from drinking the contaminated ginger beer. Next time you drink from an opaque bottle (or one where you can’t see the contents), think of Donoghue v Stevenson and you can wonder what is in your drink here?

The court found that Stevenson (the manufacturer) had breached his duty of care to her by not making sure that his ginger beer was free from impurities. In this case, the foreseeability test works because the focus is on the prevention of harm to the plaintiff (consumer), But where the harm is caused indirectly, the question of reasonable foreseeability can be more difficult to determine. 

Note that in Donoghue a breach of contract action was not available to the plaintiff as she didn’t buy the drink, her friend did, and so she couldn’t rely on the sale of goods legislation or sue in contract. Did you pick up this point when watching the video? 

For a defendant to be liable in negligence they must owe you a legal duty of care. As noted earlier, this is a question of law for the judge to decide based on the factual merits of the individual case. 

The duty of care concept says you must take reasonable care to avoid acts or omissions that you can reasonably foresee would likely injure your neighbour if you act, or fail to act, in a particular way without care as to what the outcome may be. This does not mean that a defendant owes a duty of care to ensure no harm befalls you. That would make the defendant an insurer. The duty is one of taking reasonable care. What the term ‘reasonable care’ means is constantly evolving and depends on individual circumstances.

In brief

The foreseeability test 

Foreseeability is based on an objective test of whether a reasonable person would have foreseen that there was a real risk of the likelihood of injury to the plaintiff by taking into account all the circumstances of the particular case. But remember foreseeability alone does not give rise to a duty of care. While duty of care is one test of foreseeability, other important considerations can include:

  • reliance of the plaintiff on the defendant
  • knowledge on the part of the defendant about the risk
  • the vulnerability of the plaintiff to harm from the conduct of the defendant
  • whether the defendant has the power to control the actions of another and is in a position to stop the harm from occurring.

The question to consider in all negligence cases is whether there was a real possibility that the defendant’s actions caused harm to the plaintiff. Were the actions of the defendant reasonable and it this requirement of reasonableness has substantially contributed to the flexibility found in a negligence action. It permits social judgments relevant to the times to be made by the courts within the law-making process. 

It is worth noting that over the last three decades the Australian High Court has increasingly emphasised the importance of the autonomy and responsibility of you (if are the plaintiff) to take care of yourself, and this has been re-emphasised in Australian civil liability legislation and decisions of the courts. Do you think that is fair? 

Again, whether a duty of care exists is a question of law—a question that can be answered only by reference to the facts of each individual case, with a focus on the foreseeability of causing harm to you, the plaintiff. This means considering all of the circumstances that may have a bearing on the relationship between the parties, including: 

  • the particular risk of injury that occurred
  • the relationship of the defendant to that risk (that is, was the defendant in a controlling position through resources, knowledge or legal duty, and aware that they were in a controlling position?)
  • whether the plaintiff was in a position of powerlessness and therefore reliant on the defendant
  • whether the plaintiff’s reliance put the defendant in a position that required them to be protective of the plaintiff
  • the nature of the damage that the plaintiff suffered

In the majority of cases that come before the courts, whether the defendant owes you, as the plaintiff, a duty of care can be determined from precedents created by earlier cases from the UK and Australian courts. Examples of settled cases include the following: 

  • Manufacturers of goods owe a duty to consumers and users that the design, manufacture and packaging of products are not going to harm the ultimate user
  • Employers owe a duty to employees to avoid causing them injury (providing the employee with a safe system of work, plant and equipment, and competent co-workers and supervisors: Industrial Safety, Health and Welfare (Amendment) Act 2016
  • Motorists (and other road-users) owe a duty to passengers and other road-users including cyclists and pedestrians
  • Boat captains owe a duty to their passengers
  • Teachers owe a duty to their students
  • Councils owe a duty to those who use their facilities
  • Occupiers owe a duty to persons who come onto their property.
  • Professionals, for example, lawyers, doctors, engineers, chemists owe a duty to their clients
  • Prison authorities owe a duty to their prisoners
  • Lifesavers owe a duty to swimmers who swim between the flags.

In brief

There is little difficulty in the ‘settled’ cases where physical injuries or damage to property have been caused by direct physical contact with you or your goods. You, as the plaintiff, only needs to demonstrate that the injuries are reasonably foreseeable and need to establish that:

  • You are owed a duty of care; and 
  • The duty of care should be imposed in the circumstances

In addition to the established categories of duty of care outlined earlier, there are several categories of immunity from liability, generally because of ‘public policy’, where the defendant cannot be sued including:

  • the armed forces on active duty
  • child protection agencies
  • police officers, prosecutors and parole boards
  • fire brigades and emergency services
  • barristers
  • statutory immunities under legislation

Is the duty question always clear cut? 

Do not assume the duty question is always clear cut. Problems can arise in determining the duty in the following situations: 

  • Where the harm is caused indirectly. For example, in Chapman v Hearse (1961) HCA 46 (an Australian High Court decision), Chapman negligently caused a motor vehicle accident during which Dr Cherry went to assist. Dr Cherry was subsequently killed by another driver, Hearse. Hearse successfully brought action against Chapman for contribution for damages he was required to pay to Dr Cherry’s estate.  

The High Court held that Chapman owed a duty of care to Dr Cherry as it was reasonable to assume someone would come to Chapman’s aid. There was therefore a relationship between Chapman and Dr Cherry, as well as a relationship between Dr Cherry and Hearse as a driver and road-user (person on the road). Both drivers owed Dr Cherry a duty of care, but they belonged to different, though still reasonably foreseeable, classes of person. 

  • In cases involving pure economic loss, such as Hedley Byrne v Heller & Partners Ltd (1964) AC 465, the English House of Lords recognised the pure economic loss suffered by the respondents (Hedley Byrne, an advertising agency).  

Hedley Byrne were advertising agents. They placed contracts on behalf of a client on credit terms and would be personally liable should the client default. In order to protect themselves, Hedley Byrne asked their bankers to obtain a credit reference from Heller & Partners, the client’s bankers. The reference was favourable, but also contained an exclusion clause to the effect that the information was given ‘without responsibility on the part of this Bank or its officials’. Hedley Byrne relied upon this reference and subsequently suffered financial loss when the client went into liquidation. The court found that the banks disclaimer was sufficient to protect them from liability and Hedley Byrne’s claim failed.  

The significance of the case is that it established that financial loss suffered by a plaintiff for a negligent misrepresentation was recoverable. But not in this case. It is interesting to then note that this case is a good example of obiter dicta (sayings by the way) as the ratio of the case was that the exclusion clause was valid and binding. Also remember Donoghue was about a snail in a bottle and the duty of care of the manufacturer, so the decision in Hedley Byrne extended the rule relating to what negligence could apply to. 

  • In cases of psychiatric injury (nervous shock) and mental harm, the law has taken a restrictive approach to compensating people who have suffered no physical injury but have been left with psychiatric or mental problems as a consequence of the defendant’s actions.  

What about ‘novel’ cases? 

In ‘novel’ cases, that is, where there have been no previous cases to guide the court, for example, climate change cases, once the court decides that the harm suffered by you was foreseeable the courts then look at what are referred to as the ‘salient features (or factors)’ of the relationship that exists between you as the plaintiff and the defendant.  

Just for your information, the factors or ‘salient features’ that you could consider in a ‘novel’ case were set out in a list of 17 salient features by Allsop P in Caltex Refineries (Qld) Pty Ltd v Stavar (2009) NSWCA 258: 

  • the foreseeability of harm
  • the nature of the harm alleged
  • the degree and nature of control able to be exercised by the defendant to avoid harm
  • the degree of vulnerability of the plaintiff to harm from the defendant’s conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself
  • the degree of reliance by the plaintiff upon the defendant
  • any assumption of responsibility by the defendant
  • the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant
  • the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff
  • the nature of the activity undertaken by the defendant
  • the nature or the degree of the hazard or danger liable to be caused by the defendant’s conduct or the activity or substance controlled by the defendant
  • knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff
  • any potential indeterminacy of liability
  • the nature and consequences of any action that can be taken to avoid the harm to the plaintiff
  • the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one’s own interests
  • the existence of conflicting duties arising from other principles of law or statute
  • consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and
  • the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.

Business tip

If there is knowledge of risk of injury, greater care should be taken 

If a defendant has a greater than average experience of a particular risk, greater precautions may have to be taken than would normally be the case. Think about this in the context of medical procedures where there is always risk involved. Did the defendant act as a reasonably prudent person would have once it was determined that a risk of injury existed? Was the defendant’s failure to eliminate the risk demonstrative of a lack of reasonable care for the plaintiff? 

 

Note that if you are dealing with an infant, the standard to be applied is not the same as that of an adult but of a child of like age, intelligence and experience, thus requiring greater care needs to be taken by you if you are the defendant.

Should there be consideration of the particular risk of injury that occurred? 

The question to consider here is: What would be the response of a reasonable person foreseeing the risk? The smaller the risk, the greater the likelihood a reasonable person would choose to ignore it. In formulating the duty of care, consideration must be given to the defendant’s responsibilities and the resources available to them. Remember that the law is not going to treat a defendant as an insurer of you (if you are the plaintiff). 

What is the relationship of the defendant to that risk? 

This involves consideration of a number of factors, including whether the defendant was in a controlling position through resources, knowledge, legal duty or right.  

Think about playing rugby. Does the League owe you a duty of care? There are a number of factors that need to be taken into account including your age when you were injured, whether the League arranged insurance for all its players and insisted they be registered with their clubs, that you were a player injured in a competition organised by the League, that the League tried to arrange for all coaches to be accredited but knew that some coaches had not undertaken coaching courses, that it knew that a number of under-age players played in and against open-age teams, and that it knew that some players were vulnerable to serious injury because of their physical characteristics, that players were not being taught how to tackle properly or made properly aware of the rules of the game.  

What was the nature of the damage suffered by you? 

In considering the nature of the damage suffered by you, the law does not provide compensation simply on the basis that the injury was disproportionately severe. Remember, it was noted at the outset that it is often a good starting point to look at the damage you suffered and see whether the damage is of a type that the courts are prepared to recognise as compensable or too trivial to amount to a cause of action. 

It is also worth noting that in some cases—for example, in the case of an entrant who deliberately and for pleasure engages in hazardous recreational activities where the risks are obvious—the scope of the duty of care, and a breach of the duty, may be limited given the proposition that people ought to take reasonable care for their own safety. Do you agree? 

Does liability follow an omission to act? 

At common law there will generally be no breach of duty where physical harm or loss arises as a result of a failure to act, as the liability for an omission involves the imposition of a duty to take positive action. Thus, there is no duty to attempt a rescue, and this is so even if the defendant has the means available to affect a rescue. But note this rule is subject to a number of exceptions, usually arising from your reliance or dependence on the defendant where a duty of care may arise to take positive action; for example, a driver may be held liable for causing damage through failing to indicate that they were turning.

A positive duty of care may be imposed where the defendant is in a pre-existing ‘protective’ relationship with the plaintiff, such as parent and child. A child may sue their parents, but parents are not automatically responsible for the torts of their children in the absence of ‘special circumstances’ such as personal fault.  

In Smith v Leurs (1945) HCA 27 (an Australian High Court decision), the defendant’s 13 year old son ignored the instructions of his parents not to fire his slingshot outside the boundaries of his home and hit another boy in the eye. The court found that while they were expected to maintain reasonable control over their children to avoid exposing others to unreasonable danger, the parents had done all that could be reasonably expected of them by telling their son not to fire his slingshot outside the boundaries of their property. Do you agree with that decision by the Australian High Court? 

Business tip 

Once you start to do something, there is a duty on you to take reasonable care not to cause ‘harm’ to another, particularly if a situation has been created where the other party has come to rely on you and there is little effort or expenditure required.  

Again, note that the duty of care does not extend to that of an insurer. It attaches only to where a person knows, or ought to know, by exercising reasonable care, of the existence of the danger. For example, previous actions may create a reliance situation. But if the risk of injury is slight, then the precautions that need to be taken will be minimal. 

Other common law examples of situations where liability for an omission has arisen and positive action by a defendant has been required include: 

  • Doctor/surgeon and patient: A doctor and a surgeon are under a duty to warn a patient of the inherent risks in proposed procedures.
  • School authority and students: School authorities owe a personal, non-delegable duty to their students to ensure that reasonable care is taken while they are under the school’s control. This duty arises out of the relationship of care and control that exists between students and teachers. But it will vary according to the nature and location of the activity, as well as whether the injury arises during school hours but note that the school is not an insurer and liable for every injury a child may incur while at school.
  • Local councils: entrusted with statutory powers to protect public safety.
  • Statutory authorities: in the exercise of their statutory powers.

Public authorities 

There is not an absolute duty on a public authority (which includes the National Government, Provincial Parliaments, or local or village bodies or any public authority) to do, or not do, a particular thing unless the act or omission of the authority was so unreasonable that no public authority with the same functions could properly consider the act or omission to be a reasonable exercise of its functions.  

Recreational activities and the duty of care 

Given that so many people participate in sport, and so many sporting activities involve some element of risk, it is worth considering what the duty of care is, if any, in recreational activities.

Negligence is still a fault-based system and, as a matter of law, there is a point at which those who indulge in pleasurable but risky pastimes must take personal responsibility for what they do. That point is reached when the risks are so well known and obvious that it can be reasonably assumed that the individuals concerned will take reasonable care for their own safety.

The scope of the duty of care may be limited where there is a high risk of being injured but as noted earlier, whether a duty of care exists or not is a question of law. It is a question that can be answered only by reference to the facts of each individual case. That point will be reached when the risks are so well known and obvious that it can reasonably be assumed that the individuals concerned will take reasonable care for their own safety. This includes taking into account: 

  • consideration of the risk of the particular injury that occurred
  • the relationship of the defendant to that risk; and
  • the nature of the damage that you as the plaintiff suffered.

There are two questions to consider here: 

  • The factual question: to what extent, if any, is the risk of serious injury from participation in the recreational activity obvious? Is there a hidden danger of which the parties should be aware? Was there signage that effectively communicated the risk.
  • The legal question: this concerns the effect of the obviousness of the risk and the obligation to take reasonable steps to avoid foreseeable risk of injury.

The relevant question is whether the defendant, with their state of knowledge, acted as a reasonably prudent person should have done once it was determined that a risk of injury existed. ‘Did the defendant’s failure to eliminate this risk show a want of reasonable care for your safety? Note that the standard of care is lower for children because of their lack of understanding of what risk is.

A participant in a recreational activity not only owes a duty of care to other participants to operate within the rules, but they also have a duty to take reasonable care for their own safety where they are voluntarily participating in ‘high-risk’ recreational activities. Failure to exercise reasonable care may result in liability to an injured participant, while voluntary acceptance of the risk may act as a ‘bar’ to an action for damages. 

Reflection question

Time for a break. Remember to try and revise regularly what you have read. So here is a problem question to think about while having a break. What are your thoughts on this fact scenario? 

FACTS: Time to go swimming. The local resort has an excellent beach over which it had care, management and control. They employed lifeguards because of its popularity with tourists who often brought their kids down to the beach to play on the sand and swim. The lifeguards were responsible for making sure that the best places to swim were marked with flags and they encouraged people to swim between the flags for safety reasons.

You and some friends decide to do the right thing and swim between the flags but you didn’t check the depth of the water and you were injured when you dived in and hit your head on a sandbar. The lifeguards on duty could see the sandbars and should have been aware that diving into the water without checking its depth was dangerous.

QUESTION: Did the resort owe a duty of care to users of the beach such as you to ensure that where the flags were placed was safe to swim? Did the lifeguards owe you a duty of care? Or was this a case of bad luck and you have no legal remedy?

WHAT IS YOUR DECISION? Do you think you have a case and could sue for damages?

HINT: Is it worth suing the lifeguards?  Think about the question of duty of care in the context of the resort and what their responsibilities were to you and others, if any. Do you think that those who go to the beach, like yourself, have to accept a degree of responsibility for their conduct?

Step 2: Has the defendant breached their duty of care? 

Video reference

This video about Tort Law from Cambridge Law Facility will provide you with a good overview of breach of duty of care and has some interesting examples that will help you understand breach.  

Once you, as the plaintiff have established to the satisfaction of the court that the defendant owed you a duty of care (a question of law for the judge to decide), you then have to establish that the defendant has breached that duty of care. In other words, the defendant’s acts or omissions failed to meet the standard of care required by the law, or as reasonably expected in the circumstance. 

Whether there has been a breach of the duty of care involves: 

  • determining what is a reasonable standard of care as a question of law; and then 
  • determining whether the defendant has reached that standard.

What is the ‘reasonable person’? 

Video reference

This video titled ‘what does it mean to be reasonable?’ Explains quite succinctly what is the reasonable person and will help you understand what the expression means. 

We have made a number of references to ‘the reasonable person’, and hopefully the video has helped you understand what this term means. A reasonable person is a hypothetical person created by the courts who is of normal intelligence, credited with such perception of the surrounding circumstances and such knowledge of other pertinent matters as an average person would possess. 

If a person professes to have a particular skill—for example, driving a car—they are required to show the skill normally possessed by persons claiming such a skill. The law requires the person to show such (reasonable) skill as any ordinary member of the profession (for example, a doctor, a lawyer, an accountant or manager) or calling to which they belong would normally show. 

It is worth noting again that this requirement of reasonableness has substantially contributed to the flexibility inherent in the negligence action. It permits social judgments relevant to the times to be made by the courts within the law-making process. 

What standard of care is expected of the reasonable person? 

The standard of care is the level (standard) that the defendant’s conduct is measured against objectively. It is a question of law, not fact. The question to consider is: What would the reasonable person have done if they had been in the defendant’s position? This means that it is generally not acceptable to argue that inexperience should be a valid excuse for failure to attain a standard of care that would ordinarily be expected of a person in that position. 

Is the standard of care flexible? 

The standard of care required in a particular case is a question of law for the judge to determine. It will vary from situation to situation, and is flexible depending on the circumstances of the case—for example, is it an emergency? —as well as the personal characteristics of the defendant, including age (young children are not expected to exercise the same degree of care as adults), fitness, health, disability, skill and knowledge.

For example, in an action in negligence where you are a passenger who has been injured in a motor vehicle driven by the defendant, the relationship of the parties is simply that of driver and passenger and normally the standard of care required is the degree of care of an experienced and competent driver, regardless of the driver’s status. 

It may also be necessary to consider the characteristics of the defendant in determining the standard of care such as the skill and knowledge of you (as the plaintiff), or whether you are still a child, intoxicated, a prisoner, or infirm or elderly.

What is the standard of care for children? 

In the case of children, you need to understand that they are less capable than adults in taking care of themselves. So, the reasonable person test gives way a different standard, that is, the standard of a child of similar age and experience.  

If you are placed in a position of responsibility for children, directly or indirectly, you must make the children’s safety your foremost concern. This carries a more onerous duty of care because children don’t perceive danger or risk in the same way you do as an adult. There is a duty of care placed on you but your obligation is to exercise reasonable care, not a duty to prevent conduct that could be potentially harmful. 

What elements need to be established for breach? 

If a duty of care is found to exist, you, as the plaintiff, must then establish that the defendant breached this duty.  

  • there was foreseeable risk (that is, a risk which the person knew or ought to have known based on what a ‘reasonable person’ would have known if they were in the position of the defendant); and
  • what would a reasonable person in the same position as the defendant have done in the circumstances.

When trying to determine what precautions a reasonable person in the position of the defendant might have taken, the court will consider a number of factors, including: 

  • The probability that the harm would have occurred if care had been taken. This is to be considered objectively. In Bolton v Stone [1951] AC 850, an English case, the House of Lords found that the defendant may have been justified in disregarding a foreseeable risk of injury where there was only a remote chance of being hit by a cricket ball while walking past a fenced cricket ground, and one that a reasonable person would think highly unlikely to occur. A cricketer hit a six, which went more than 65 metres from the wicket, cleared a 2.2 metre fence and struck Stone, who was standing outside her house across the road from the ground. Not only was the probability of risk materialising quite low, but the precautions that the club would need to have taken to avoid a similar accident occurring could only have amounted to it ceasing to play cricket at the ground! 
  • The likely seriousness of the harm. This is also to be considered objectively by reference to the particular circumstances of the case. If you are going to have an eye operation and the chances of going blind are 1:14,000, you should still be warned of the risk because the outcome could be catastrophic even though the risk appears to be small. Why? Because this is what a reasonable person in the doctor’s position would do?  
  • The burden of taking precautions to avoid the risk of harm. The magnitude of the risk and the probability of injury have to be balanced against the expense, difficulty and inconvenience of any action necessary to reduce the risk. Thus, if you are seriously injured when diving into an estuary from a bridge that had pictograms indicating ‘No Diving’ and signs prohibiting diving, the court will probably say ‘No Diving’ signs were a reasonable and adequate response and that the body responsible for bridge and road maintenance had not breached its duty of care given that there was a substantial cost for a new handrail and new fencing, and there was no guarantee it would have been effective.  

The question to consider in trying to decide whether there is a breach is where the responses reasonable and adequate in the circumstances or were they impractical?  

The court may look at the social utility of the activity that caused the harm as it might take the view that some activities are more worth taking risks for than others, such as playing contact sports like rugby league or union. Why, you may ask. Playing sports has benefits for the individual and for the community in terms of a healthier population. But contact sports like Rugby League and Union also carry a higher risk of injury to a participant than to someone who doesn’t play sport. Therefore, the benefits have to be weighed against the costs and a decision made accordingly. 

All the above factors do not have to be satisfied in order to establish breach. What they provide is a framework for deciding what precautions the reasonable person would have taken to avoid harm 

There is a rule of evidence that allows the plaintiff to treat the actual facts of the case as clear evidence of the defendant’s negligence, that is, the facts speak for themselves. It allows negligence to be inferred if three conditions can be satisfied:

  • the plaintiff’s injury was one that ordinarily would not happen if proper care had been taken; and
  • the plaintiff was injured by something within the exclusive control of the defendant; and 
  • there is an absence of explanation and no room for inference. It is worth noting that if the cause of the occurrence becomes known, the plaintiff has to then prove it was the defendant’s negligence.

Two examples may help you understand how this principle works in practice. In the first case (Gee v Metropolitan Railway Co (1873) LR 8 QB 161, an English case), the plaintiff fell out of the defendant’s railway carriage shortly after the train left a station. As the railway was in control of making sure the carriage doors were shut, he succeeded against the railway company because there was no explanation other than that the railway company had been negligent because it failed to ensure the doors were properly shut.   

In the second case (Mummery v Irvings Pty Ltd [1956] HCA 45, an Australian High Court case), the plaintiff failed because he was unable to show that the injury was directly caused by the negligence of the employee’s foreman. The foreman was using a circular saw when a piece of wood he was cutting flew off and hit the plaintiff in the face. The plaintiff’s case failed because there was no evidence to show that the occurrence was due to the negligence of the employer’s foreman.

Business tip

Reducing the likelihood of injury 

A business must take steps to reduce the reasonable likelihood of injury. The onus is on the you as the plaintiff to show that it was reasonably practicable for the defendant to take precautions against the risk. Once you have done so, the burden of proof switches to the defendant to establish that it was unreasonable in the circumstances to take such precautions. Risk management principles suggest that constant monitoring of: 

  • the probability of risk
  • the seriousness of the consequences if something were to occur; and
  • the opportunities for, and cost of, eliminating the risk are all serious concerns of a responsible business manager if liability of the business is to be minimised.

Reflection question

Time for another break. Here are three more questions to check your understanding of the topic. 

  1. What does the term ‘reasonable person’ mean to you?
  2. What factors does a court take into account when judging the standard of care under common law.
  3. Do you think children should be treated differently to adults? (Now this is an interesting question but can you see why? This question is really testing your reading ability.)

Step 3: Has the plaintiff suffered damage (a limiting factor)?  

Causation 

This is the last question that you, as the plaintiff, has to deal with in a negligence claim is the question of causation. This is the bond between the defendant’s behaviour and your injury. The issue of harm or damage is central to a negligence action.  

The onus of proof is still on you as the plaintiff and the good news is that this is the last step that has to be established by you in addition to duty and breach. The bad news…. a pity it is so complex.

There are two types of causation: factual causation and legal causation:  

  • Factual causation is also known as “but for” causation. This type of causation means that the result would not have happened if not for the act.
  • Legal causation, on the other hand, requires that the act must be the proximate cause of the result, that is, the act must be the direct cause of the result without which the injury would not have happened.

Damage may be: 

  • economic (for example, lost or missed sales)
  • to property (for example, damage caused by faulty plumbing or electrical wiring); or
  • to the person (for example, a broken arm or leg as a result of a motor vehicle accident, psychological damage), as long as there is actual damage

Do not assume that any kind of damage is recoverable in a negligence action. Only actual damage is compensable, and this includes:

  • damage to property or person
  • economic or financial damage; and
  • psychiatric damage (including ‘nervous shock’)

Don’t assume that any kind of damage you suffer will automatically create a potential cause of action in negligence. Situations where you won’t have a claim in negligence include damage from criminal or fraudulent activities (on policy grounds), where the form of damage is too vague (for example, expulsion from a social club, although the court will look closely at how the expulsion may have been carried out to see whether natural justice was followed), and even harm to reputation (where an action in defamation is appropriate).

In deciding liability for breach, you as the plaintiff must establish, on the balance of probabilities, that there is some link between the damage you suffered and the defendant’s breach of their duty of care. In other words, you have to show that the defendant’s ‘negligence was a necessary condition of the occurrence of your harm’ and is effectively a restatement of the common law ‘but for’ test; that is, would you as the plaintiff have suffered this damage ‘but for’ the defendant’s negligence? The factual causation component.

If the injury would have occurred anyway, the action fails. In an English case called Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428 the plaintiff failed to establish causation. The hospital doctor refused to examine the patient who had attended an outpatient clinic after becoming ill from drinking tea containing arsenic. The doctor’s failure to treat the patient was a clear breach of duty, but the man would have died anyway, even with medical treatment. The action of the plaintiff (the patient’s wife) therefore failed because she could not establish the necessary causal link between the defendant’s breach and the death of her husband.

In an Australian High Court case, Strong v Woolworths Ltd [2012] HCA 5, the High Court suggested that it was enough if the appellant (Strong) could prove, on the balance of probabilities, that the respondent’s negligence was a necessary cause of his fall. In ‘slip and fall’ cases, a common problem is establishing a causal connection between the lack of an adequate cleaning system (an omission) and the injury to the plaintiff (an occurrence) when it cannot be established when the surface became slippery.

To establish proof of the causal link between the omission and the occurrence, it is necessary to consider the probable cause of events had the omission not occurred. For example, in Strong’s case above, would she have fallen if Woolworths had a system of inspection and removal in place at 15 to 20-minute intervals, as CPT Manager Limited did for the rest of the shopping centre?  

The precise sequence of events does not have to be established by the plaintiff. The question was whether Woolworths’ failure to adopt an adequate system of inspection and cleaning the cause of the appellant’s injuries; that is, was the plaintiff (as this was an appeal, we use the expression ‘appellant’ rather than plaintiff as she is the person appealing and Woolworths is the ‘respondent’ because they are responding to the appeal) able to prove causation? 

The High Court found that it was enough for the appellant to prove, on the balance of probabilities, that the respondent’s negligence was a necessary condition of her harm. The chip was dropped between 8.00 am and 12.10 pm rather than the shorter period of time suggested by the Court of Appeal (between 12.10 pm and the time of the incident, which was not long enough for it to be detected and removed). The longer length of time opened the way for the court to find that the failure of Woolworths to adopt a reasonable system of cleaning was the effective cause of Strong’s fall. 

In another Australian High Court case, Chappel v Hart [1988] HCA 55, a surgeon negligently omitted to warn the respondent of a risk inherent in an operation on the throat of the patient and, while he performed the operation without negligence, the risk materialised. The respondent alleged that had she been warned she would not have had the operation at that time and she would have had a different surgeon perform it. The High Court held that the appellant’s failing to warn of the risk, and not the actual operation, should be regarded as a cause of the injury when the risk eventuated.

Causation is determined subjectively—that is, what the injured person would have done, in the light of all relevant circumstances—as distinct from the objective test of the conduct of a reasonable person. However, any statement made by the person who has been injured about what they would have done is inadmissible, unless the statement is against the person’s interest. 

It should also be noted that in this case, while the ‘but for’ test was satisfied, other factors were required to be established before a majority of the court were satisfied that the surgeon should be liable in negligence. These factors included the timing of the operation (waiting for a more experienced surgeon), the plaintiff’s concern over how she might sound after the operation (complications could occur without negligence and affect her voice), and the fact that she was an anxious and persistent patient who was concerned about the outcome of the operation. 

In the case of exceptional circumstances, where a breach of duty is established but does not satisfy the requirement of ‘factual causation’, the court is required to consider, among other relevant things, whether or not and why responsibility for the harm should be imposed on the defendant. And sometimes an intervening event involving the actions of a third person might relieve a negligent defendant of responsibility. 

The second part to causation that you have to establish is legal or proximate causation. This is the legal principle that holds that a person who causes another person to suffer an injury or loss is legally responsible for that injury or loss. To establish legal causation, you are going to have to show that the person who caused the injury or loss did so through some act or omission that was negligent, reckless, or intentional. Were the defendant’s actions the proximate cause of the injury or, to put it another way, would the injury not have occurred but for the defendant’s actions? 

Reflection question

Time for a break but before you stop, think about the following situation and you can find out what you have learnt so far.  

THE FACTS: Imagine you are involved in a motor vehicle accident caused by the driver’s negligence. At the hospital you are given painkillers to help manage the pain but they were not helping. A friend visits you at the hospital and you tell them the pain medication given by the hospital is not working. They suggest trying heroin and you agree and it works but you become addicted to it. You sue the driver for negligence, seeking damages for your injuries and for the heroin addiction

THE QUESTION: Is the negligent driver responsible for your addiction?

YOUR DECISION: Well, what is your decision and why?

HINT: Think about the conduct of the friend. Also think about whether responsibility for the heroin addiction should be imposed on the driver.

If there are a number of possible defendants and it is not possible to assign responsibility for causing harm to any one of them, the courts may assign responsibility under existing common law principles to all of the defendants, but in doing so it must consider the position of each defendant individually and state the reasons for bringing the defendant within the scope of liability. 

You are going to have to show that the damage was a foreseeable consequence of the negligence of the defendant (similar considerations apply in the duty question), and whether the damage suffered fell within the scope of foreseeability or was too ‘remote’. 

What has to be foreseeable is the type or kind of injury suffered, one that a reasonable person would describe as ‘real’ rather than ‘far-fetched’ and requires a value judgment about the allocation of responsibility for harm.

The ‘egg-shell skull’ rule 

One final point. The ‘egg-shell skull’ rule provides that a defendant must take you, as the plaintiff, as they found you. This means that a defendant will be liable for injuries suffered by you despite the fact that you have had a pre-existing condition, such as a medical condition, which resulted in the injuries being significantly greater than might otherwise have been the case.  

This rule applies only to damage of the same kind as that which was reasonably foreseeable. The doctrine is applied in all areas of torts (as well as in criminal law).  

Reflection question

Think about what you have read about causation.

  1. Can you explain the purpose of causation in relation to the liability of a defendant
  2. Having established duty, breach and damage, do you think the defendant should be liable for all the damage have suffered?

Step 4: What defences might a defendant raise? 

This is a question really about the consequences for the defendant if they fail to convince the court that they did not owe you a duty of care, or that they had not breached that duty, or that they were not responsible for the harm or damage that you suffered. The onus now shifts on to the defendant to establish any defences to reduce or eliminate their liability.  

The two most common defences under the common law are contributory negligence (see also ss 40, 41 of the Wrongs (Miscellaneous Provisions) Act 1975 and voluntary assumption of risk. Both defences involve consideration of all of the surrounding circumstances, including the behaviour of you, as the plaintiff, and the issue of personal responsibility.  

Online reference

Find online the link to the Wrongs (Miscellaneous Provisions) Act 1975. 

Contributory negligence 

Contributory negligence is about apportionment of blame and you as the plaintiff assuming some responsibility for your injuries or damage to your property.  It needs to be distinguished from voluntary assumption of risk which, if successful, may defeat your claim in its entirety, depending on the circumstances; for example, that you failed to take reasonable care for your own safety because you were drunk or under the influence of drugs at the time of the accident. 

The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who has suffered harm has been contributorily negligent—although it should be noted that it is not necessary that you as the plaintiff owe the defendant a duty of care. 

Essentially, the court looks at whether you failed to take reasonable care for your own safety, with the standard of care being assessed on the basis of the reasonable person and what they would have, or should have, known in the circumstances. This is consistent with the courts taking the view that people need to take responsibility for themselves and then considering whether you had fallen below that standard. Contributory negligence must be pleaded and proved by the defendant. 

To establish contributory negligence, the defendant must be able to establish that: 

  • you, as the plaintiff, was at fault or negligent in failing to look after yourself; a question of fact judged in light of all the circumstances
  • your conduct contributed to the injury or loss—this means looking at what was the cause of the damage (but remember that each case must be judged on its own set of facts and circumstances, such as intoxication, emergency or anticipation of a breach by others); and 
  • the damage was reasonably foreseeable and was contributed to you by your actions (or lack of them): a question of fact. 

The standard of care is based on a reasonable person in your standing in place of you, and the matter will be decided on the basis of what the person knew or ought to have known at the time. If you were an infant, the standard of care would be that an infant. 

In all jurisdictions there is a presumption of contributory negligence if the person who suffers harm was drunk or if the person who suffers injury was relying on the care and skill of a person, they knew to be drunk. In the case of intoxication, it is presumed that it impacted on your ability or capacity to exercise reasonable care for your own safety at the time of the breach. You will then attempt to rebut that presumption by arguing that you were not intoxicated and that if you were, it did not impair your capacity to exercise reasonable care for your own safety.

Apportionment of damages is based on what is fair and reasonable (‘just and equitable’) between the parties however, as noted earlier, contributory negligence may defeat a claim. Part IX of the Wrongs (Miscellaneous Provisions) Act 1975, s 40 provides that a plaintiff such as yourself is entitled to recover a portion of the damages based on the negligence of the defendant.  

Online reference

Apportionment of liability where contributory negligence is raised by a defendant is set out in Part IX, ss 38-40 of the Wrongs (Miscellaneous Provisions) Act 1975.

Voluntary assumption of the risk 

Voluntary assumption of risk is a complete defence. It is very difficult for a defendant to successfully raise as a defence because it has to be established that you knew there was a risk of injury and knowingly engaged in the activity which resulted in your injury, that is, you had consented to the full risk of injury.  

A defendant can minimise their exposure to risk in one of two ways:  

  • expressly, by signing an agreement in which you acknowledge the risk of injury and agree to accept or assume the risk. This is usually in the form of a written waiver or exclusion clause. By signing a liability waiver or a contract that contains an exclusion clause, you agree to accept the risk but as you will see when we look at contract law, waivers and exclusion clauses are construed strictly against the party relying on them; or  
  • by your conduct where you knowingly and voluntarily engage in a risky or dangerous activity. You have impliedly assumed and assented to acceptance of the risk. Examples could include going rock climbing or water skiing with friends, or attending a sporting event such as football or cricket and getting hit by the ball. In each case there is always a risk of injury and the defendant would argue that a reasonable person would be aware of that risk.  

Step 5: What may a plaintiff recover? 

Generally, in a negligence action, you as the plaintiff, will be seeking monetary compensation for the damage or loss you have suffered. This could be a physical injury to you or property damage, economic or financial damage, or psychiatric damage but just note that damages are awarded on a case–by–case basis. It should also be noted that the purpose of a damages award is compensation; that is, to put you in the position you would have been in had the tort not been committed. Do not confuse damage, which is about loss, with damages, which is about compensation.

Where two or more persons have caused injury to you, the requirement that there be proof of negligence of one of them can create difficulties, unless they were joint tortfeasors  

Part 5: Other areas where the tort of negligence has an impact 

Just when you thought this was the end of negligence it is worth remembering that at the beginning of the chapter we noted that there were other areas of tort law that had been subsumed by negligence. There is not enough time now to explore them in any detail but an awareness of each can still be a valuable tool in both personal and business disputes.  

The seven areas are: vicarious liability, occupier’s liability, product liability, negligent misstatements, strict liability, the rule in Rylands v Fletcher and breach of statutory duty.  

Vicarious Liability 

Employers can be held variously liable for the acts or omissions of their employees who cause injury or property damage to a third party. In PNG, vicarious liability is governed by common law principles. 

The employer is not personally at fault but is held to be responsible for the actions of an employee where the employee is under the control of the employer by way of a contract of service. If the employee is an independent contractor, vicarious liability as an action is not available as the employer has limited control over a contractor and acting in the course of their employment. The independent contractor is said to be acting under a contract for services.  

Members of the community often ask why is an employer liable for the acts or omissions of their employees when they have done nothing wrong? An employer can only be liable for the wrongful acts or omissions of an employee that are undertaken in the scope or course of employment, and the relevant act need not be authorised. 

Vicarious liability may arise in relation to an employee’s unauthorised acts that are “so connected” with authorised acts that they may be regarded as modes, although improper modes, of doing the authorised acts. The reason for the employer being held liable for the actions of the employee is that the employer benefits from the activities of the employee (called a ‘profit’) and if the employee should injure a third party during the course of making a profit for the employer, it is only fair that the employer should be prepared to compensate the injured third party.  

A point to note here is there is little benefit of an injured third party suing an employee as they would rarely have the money to pay damages. On the other hand, the employer is much more likely to be able to pay damages, either through the costs of the business or public liability insurance. 

Reflection question

Take a break and read the following scenario. Who would you sue and why? 

FACTS: Deatons operates a hotel. You were a customer at the hotel and after a few beers you acted offensively towards one of the hotel’s employees, a barmaid. She asks you to sober up and go away. An argument developed and the barmaid threw a glass of beer over you, and then through the empty glass into your face.

HINT: What is a barmaid employed to do? Were her actions within the course of her employment?

Occupier’s Liability 

Occupier’s liability has been absorbed into negligence. You owe anyone who enters your premises, including guests, those who enter by express or implied permission—such as visitors and salespeople—and even those who are uninvited, such as trespassers a duty of care. It means that if you are an occupier, and this could be an owner or a tenant, you must take reasonable care of anyone who comes onto your premises that it is reasonably safe to do so, although what is reasonable will vary according to the circumstances. 

Online reference

See ss 52-54 of the Wrongs Miscellaneous Provisions Act 1975 and Part 15.7.1 – Occupiers liability, of the Magistrates Manual.

Under the Wrongs Miscellaneous Provisions Act 1975, s 52(1) a ‘common duty of care’ applies to all visitors unless the occupier expressly restricts or excludes their duty. Because of the control an   occupier has over their premises it is important to understand the extent of the occupier’s ordinary duty under s 52.

To establish occupier’s liability, you as a plaintiff must establish the defendant had occupation or control of the land or structure (that is, own it, be a landlord or a tenant) and then: 

  • Would a reasonable person in your position as the defendant have foreseen that the conduct involved a real risk of injury to the plaintiff? and  
  • What would a reasonable person do in response to the risk? This could be any number of factors including the magnitude of the risk, the cost of removal of the risk, its degree of probability, whether the risk is ordinary, and whether it is obvious.

If you are a landlord, note that s 54 of the Wrongs Miscellaneous Provisions Act 1975 sets out a landlord’s obligations in relation to the maintenance or repair of their premises.

Do not assume that you must remove all hazards on the property you control as it is not strict liability. What it is about is taking reasonable care to avoid exposing people to unreasonable risk of injury.

Reflection question

Read the following scenario and think about the issue of occupier’s liability and why it is important 

FACTS: The plaintiff, a 53-year-old mother of three children, suffered an injury when she tripped and fell on the uneven surface of your driveway of your house while attending a garage sale. The driveway had a very uneven surface with a number of pot holes and was atypical of houses in the area.  The mother had stated that at the time of her injury, she had been looking towards the goods on a table at the garage sale, and that she had not been paying attention to where she was walking.

QUESTION: Do you owe the mother a duty of care?

WHAT IS YOUR DECISION? Are you liable for the mother’s injuries?

HINT: Was the risk obvious? Should warnings have been given or the table put in a different location? Would you answer be the same if the sale had been a commercial venture at a market? 

Product Liability 

The decision of the English House of Lords in Donoghue v Stevenson [1932] AC 562 (discussed earlier) established that manufacturers owe a duty to the consumer (which could be you next time you get a ginger beer in an opaque bottle) to take reasonable care when: 

  • a product is sold, that it reaches you as ultimate consumer in the form in which it left the manufacturer
  • there is no reasonable possibility of intermediate examination by you; and
  • it is reasonably foreseeable that, in the absence of reasonable care by the manufacturer, you will be injured.

If a product is negligently manufactured, assuming it is locally manufactured, that company or business is responsible for how the product is made. As Donoghue v Stevenson illustrates, the manufacturer owes a duty of care to the consumer to take reasonable care as absence of reasonable care in the manufacture of the product can result in injury to the consumer’s life or property (you), and liability common law liability for the manufacturer in negligence. If the manufacturer is in another country then a whole host of problems arise, not the least of which are whether it is even possible to sue them and the cost of litigation. 

In fact, a problem with trying to sue a manufacturer, or a wholesaler or retailer, is money. A legal action in negligence can be both costly and complicated when compared with litigation under the Goods Act 1951, the Independent Consumer and Competition Act 2002 and the Fair Transactions Act 1973 which provide statutory protection for you as the consumer.   

 

Reflection question

Read the following fact scenario and think about your legal position if you were the consumer. 

FACTS: You have purchased a new outfit to wear for a job interview direct from the manufacturer (OnLine Clothing). You have not had time to wash it before the interview because you were worried it would not be dry in time for the interview. The garment contained chemicals that, it was found, had been left in them due to the lack of care of the manufacturer. When you complained to the retailer who sold you the outfit they said ‘Not our problem’ Tell the manufacturer. The manufacturer then produced evidence that it had manufactured nearly 10,000 similar outfits for PNG and Australian customers without a complaint and argued that no one could say that it was not a reasonably careful manufacturer.

QUESTION: Does the manufacturer owe you a duty of care?

WHAT IS YOUR DECISION?  

HINT: Is this just a tort action? It is important to always think about what other legal options that might be available to you? 

Strict liability   

To win a strict liability (or absolute liability) case you must be injured and be able to prove that the defendant’s product or actions caused the injury regardless of carelessness or fault regardless their intent or mental state, that is, a duty ensure reasonable care is taken.  

A defendant can be held liable for damages or losses without the plaintiff having to prove intent or negligence. Strict liability or non-delegable situations typically arise out of employer-employee relationships where there is an obligation on the employer to provide a safe place of work, a safe system of work, competent staff and proper plant and equipment. Aside from these obligations there are also duties imposed on employers by statute such as the Occupational Safety, Health and Welfare Act 1991 and the Workers Compensation Act 1978.  

The employer can delegate their responsibility but cannot avoid their duty even if they delegate performance to a third party. An example of strict liability where the court found against employer is Edwards v Jordan Lighting and Dowsett Engineering (New Guinea) Pty Ltd [1978] PNGLR 273 the plaintiff was inspecting some light fittings when the ladder slipped and he fell injuring himself after the second employee let it go. The court held that both the employer and second employee were liable for damages as the second employee failed to warn the plaintiff in advance he was letting go of the ladder and the employer was liable for failing to provide a safe system of work.     

In addition to strict liability has been applied to activities including holding an employer strictly liable for torts committed by their employees, the principle of strict liability has been applied to product liability, damage caused by animals (distinguish between domestic and wild animals. In the case of the former, the keeper is only liable if they had actual knowledge of the animal’s propensity to cause harm while in the latter case the keeper of the animal are strictly liable because they are known to be dangerous), and common hazardous activities such as storing explosives. 

Breach of statutory duty 

A person who suffers damage from a breach of a statutory duty by a defendant may have an action for breach of a statutory duty. In a claim for a breach of statutory duty it has to be established that the defendant, whether a public authority or a private body, was under a statutory duty to do something and did not, resulting in a breach of duty and damage to the claimant.  

A starting point for breach of a statutory duty is to read the legislation carefully to see whether the statute expressly provides for a right of action for breach of its terms, in which case the calculation of damages will be calculated in accordance with the Act. In most cases however, a statute is silent on whether contravention will be actionable or not. In this situation, the courts have to ‘discover’ the intention of Parliament by applying rules of statutory interpretation.  

The rule in Rylands v Fletcher 

While the rule in Rylands v Fletcher (1868) UKHL 1 has been absorbed into negligence in Australia and some other common law jurisdictions, it still applies in PNG. It is a tort of strict liability and a cause of action can arise if an occupier of land (the defendant) accumulates or brings on to their land something which could be ‘dangerous’ if it escapes in the course of some ‘non-natural’ use of their land to a place outside their occupation or control, they must keep it in at their peril, and if they don’t, are strictly liable for all the damage which is deemed to be reasonably foreseeable. 

The claimant must be able to establish that: 

  • that the defendant brought something onto their land
  • that what the defendant made a ‘non-natural use’ of the land
  • that what the defendant brought onto the land was likely to do mischief if it escaped; and
  • that there was an escape which caused damage of a reasonably foreseeable kind.

There are a number of defences available to a defendant including consent, statutory authority, act of God, act of a stranger, and the fault of the claimant.

Reflection question

The last reflection question. If you are the claimant do you think you could win the case and why?

Facts: you owned and operated a mine adjacent to the defendant’s property. The defendant employed some independent contractors to construct a reservoir on his land. During the construction of the reservoir the contractors found a number of disused sunken mine shafts which, unknown to the defendant, they decided to leave as they appeared to be filled up with soil and rubbish. When the defendant’s reservoir was filled for the first time it burst through the old shafts and flooded your mine and caused several thousand dollars damage.

Question: What legal options, if any, are available to you?

Decision: Explain your decision.

Key points 

An understanding of the following points will help you to better revise material in this chapter. 

  • What is the nature of a tort? A tort is a civil wrong other than a claim for breach of contract and for which a right of civil action for damages may arise.
  • What is the difference between tort and crime, and tort and contract? The main difference between a tortious action and a criminal prosecution is one of purpose:
    • In tort, the parties are concerned with the resolution of a private dispute that may result in the award of some appropriate remedy, whereas in criminal proceedings the prosecutor is a representative of the public and concerned with punishment and the repression of crime; while 
    • Contract law is concerned with the enforcement of promises, and compensation if there is a breach of contract. Tort, on the other hand, is concerned with the protection of rights. 
  • What is negligence? Negligence is the omission to do something that a reasonable person would do, or doing something that a prudent and reasonable person would not do. It is the failure to exercise reasonable care and skill. 
  • What are matters of fact and matters of law? Matters of fact include: 
    • Resolving conflicts in evidence
    • Evaluating the conduct of the parties
    • Whether the defendant caused the damages, and what was its extent
      • Matters of law include:
      • All questions of duty
      • The standard of care
      • Questions of remoteness
  • What are the elements necessary to establish negligence? The injured party must establish, on the balance of probabilities, that:
    • the defendant owed them a duty of care
    • the defendant breached that duty of care to them; and
    • as a consequence, the plaintiff suffered actual loss or damage recognised by the law
  • Under what circumstances does a defendant owe duty of care to the plaintiff at common law? The duty question is a question of law and has to be established to the satisfaction of the judge. The approach to the question of the existence of a duty of care today is determined by application of the ‘foreseeability’ test and includes consideration of whether there was a vulnerable or dependency relationship between the defendant and the plaintiff, as well as policy considerations.
    This is the duty owed by a defendant to a plaintiff and is based on the relationship between them; that is, to take reasonable care to guard against the foreseeable risk of injury to another. Duty of care is not just restricted to the question of negligence but other areas of tort as well such as vicarious liability, occupier’s liability, strict liability, negligent misstatements, Rylands v Fletcher, and product liability.
  • What is a breach of duty of care? Having established the existence of a duty of care, the plaintiff must then show, on the balance of probabilities, that the defendant was at fault. Determining whether there has been a breach of the duty of care involves a two-stage test:
    • The first stage is to determine whether or not the risk was reasonably foreseeable. A person is not negligent in failing to take precautions against a risk of harm unless there was foreseeable risk, the risk was not insignificant and, in the circumstances, a reasonable person in the position of the defendant would have taken precautions. 
    • In the second stage, the court should consider the following factors: probability that the harm would have occurred if care had been taken, the likely seriousness of the harm (to be considered objectively by reference to the particular circumstances of the case), the burden of taking precautions to avoid the risk of harm, and the social utility of the activity that caused the harm.
  • What is the concept of standard of care? The defendant’s conduct is judged against an objective standard and is determined by the court measuring that conduct against the standard of care. The onus is on the plaintiff to show that the defendant’s conduct fell short of the standard of care that a reasonable person in the defendant’s position would have taken in response to the circumstances at the time in response to a reasonably foreseeable and not insignificant risk. 
  • What is the importance of causation? In deciding liability for breach, the plaintiff must establish on the balance of probabilities that the defendant’s conduct caused the plaintiff’s personal injury. Damage may be economic, to property or to the person, but there must be actual damage, and this raises two more questions for the plaintiff to prove:
    • Was the loss or damage to the plaintiff ‘directly caused’ by the defendant’s breach of their duty of care (causation)? This is a question of fact and determined by weighing up the evidence through applying, as a general rule, the statutory ‘but for’ test. Where a breach of duty is established but does not satisfy the requirement of ‘factual causation’, the court is required to consider, among other relevant things, whether or not and why responsibility for the harm should be imposed on the defendant. 
    • If the plaintiff can prove that the defendant’s conduct was a necessary condition of the injury that they have suffered, is it appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability)? 
  • What defences can a defendant raise to a negligence claim? Under the common law, the two main defences which may be pleaded by a defendant) are:
    • contributory negligence, which can be up to 100 per cent and thus effectively defeat the plaintiff’s claim for damages (but note the operation of the Wrongs Miscellaneous Provisions Act 1975); and 
    • voluntary assumption of risk, which would defeat the claim for damages, is a risk that in the circumstances would have been obvious to a reasonable person in the position of the plaintiff and would not be taken by them.
  • Reasonable person – a hypothetical person who exercises what is considered to be the average care, skill and judgment that a reasonable person in the community or similar area of expertise would exercise.

References

Sanders A  (2024) “What is Negligence’’?, Centre of Teaching and Learning at Southern Cross University, licenced under CC BY-NC-SA 4.0

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Introduction to business law in Papua New Guinea Copyright © 2024 by Southern Cross University is licensed under a Creative Commons Attribution 4.0 International License, except where otherwise noted.

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