The Tort of Negligence; Keith

This document provides a comprehensive overview of the tort of negligence, focusing on its various aspects such as duty of care, breach of standard of care, and defences to common law action against employees. It also discusses the concept of non-delegable duty of care and provides examples of relevant cases. The document is relevant for students studying law or anyone interested in understanding the principles of negligence.

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The Tort of Negligence; Keith
Student’s Name
Institutional Affiliation

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Table of Contents
The Area of Law........................................................................................................................3
Discussion of Law......................................................................................................................3
Duty of Care...........................................................................................................................3
Breach of Standard of Care........................................................................................................4
Establishing the Standard of Care..............................................................................................4
Reasonable Standard of Care.....................................................................................................4
Defences to common Law Action against employee.................................................................4
Magnitude of Risk......................................................................................................................5
Reasonable Foreseeability..........................................................................................................5
The Cost of Handling the Risk...................................................................................................6
Non-delegable duty of care........................................................................................................7
Duty to provide competent fellow employees........................................................................7
Duty to provide Safe plant & equipment................................................................................7
Duty to provide Safe premises...............................................................................................7
Duty to provide Safe System of Work...................................................................................8
Indirect/ Vicarious liability........................................................................................................8
Damage......................................................................................................................................8
Types of Damages......................................................................................................................9
Special Damages....................................................................................................................9
Punitive Damages...................................................................................................................9
Aggravated Damages............................................................................................................10
Principle of non-liability for omissions....................................................................................10
Causation..................................................................................................................................10
Application of the Law.............................................................................................................11
Conclusion................................................................................................................................12
References................................................................................................................................13
Article, Books and Journals..................................................................................................13
Cases.....................................................................................................................................14
Legislation............................................................................................................................15

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The Area of Law
The Tort of Negligence
Discussion of Law
Negligence is the most rampant tort. According to LSCSA (2013), negligence is technically
the failure of an individual entity to execute the necessary logical or caring actions
realistically. Negligent torts are unintentional actions that can be raised when a person or an
entity fails to perform an obligation as a reasonable person would to someone they owe care.
Negligence in that particular action results in physical body harm or monetary damages
(Coleman 2010).
The features of a negligent tort include:
Duty of Care
The term ‘duty of care’ places the responsibility of care (or rather not causing harm) to others
through careless actions (Moffet, 2011). The case of Donoghue v Stevenson sets a precedent
on the legal basis of determining the duty of care (Donoghue v Stevenson [1932]). Mrs.
Donoghue’s friend bought her beer at Wellmeadow café. The beer was contained in an
opaque glass bottle; when she poured it into a glass, decomposed snail remains floated on the
drink. Mrs. Donoghue suffered gastro-enteritis and a shock. She sued the manufacturer
(Stevenson). Was there a contractual relationship? The case provides a theoretical basis on
the duty of care and a modern outlook of negligence. Lord Atkin (leader of the majority
court) held that the duty of care generally existed between two individuals under the
‘neighbor principle’.
The description provided by Lord Atkin on the neighbor principle is wide in range and
includes a relatively broad scope of situations. The application of the principle has been
limited to cases involving physical bodily harm and property damage. In the case of Jones v
Bartlett [2000], it was held that the negligent action had to create a risk to the individual’s
life, body or health. The case stands for the opinion that residential premises’ owners do not
owe tenants a duty to comply with the Australian Standards and Building Codes which
evolve. The test was a major development to the neighbor principle.

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Breach of Standard of Care
Breach of duty is a large aspect of negligence, and usually, they are factual and evidence-
based (Miller, Clarkson & Cross, 2010).. After the court has established that a duty of care
existed, it is prompted to determine how the defendant acted to breach the responsibility he
owed to the claimant. The court does not ask the defendant if they had foreseen the outcome
of the negligence, but rather the court determines whether the defendant ought to or should
have foreseen the outcome (Wilcox, 2016). Cases with unlikely outcomes are bound to fail in
a claimant’s claim. The court in the case of Fardon v Harcourt-Rivington [1932] ruled that
the eventual result was a ‘fantastic outcome’ and was not foreseeable. The situation required
the defendant to elude ‘reasonable probabilities’.
Establishing the Standard of Care
There is a balance provided by the law in payment of compensation between genuine
accidents and where an individual fails to perform an obligation, and the situation becomes
egregious. Donoghue v Stevenson and other cases that came after it has placed upon the
standard of a reasonable man on the defendant. If the actions of the defendant are reasonable
enough, then they are not said to have breached any duty of care. However, this does not
mean that an objective standard is used to judge defendants; there is a broad scope test that is
applied depending on the features of the defendant’s case (Moffet, 2011). The primary
principle in the breach of duty is “the applicable standard of care is that of a reasonably
competent person undertaking that activity.” Hall v Brooklands Auto-Racing Club [1933]
defined ‘reasonable man’ as ‘the man on the street’ or ‘the man on the Clapham Omnibus’. It
is important to note that a reasonable person is not judged as being perfect, mere or average.
Reasonable Standard of Care
The nature of the defendant’s actions and the defendant’s characteristics provide a different
outlook on the standard of care.
Defences to common Law Action against employee
According to common law, the injured person cannot recover damages against another party
of he or she partly contributed to the negligence. If the claimant fails to take necessary

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precaution on top of the ones provided by the employer, then the damages is reduced by 25%.
In the case of Joslym v Berryman [2004], the claimant allowed the defendant to drive him
knowing very well he was intoxicated. The plaintiff instituted a legal action against the
defendant; was the claimant guilty of contributory negligence? The court held that the
claimant knew of the defendant’s state thereby reducing the plaintiff’s damages by 25%.
Magnitude of Risk
In cases where the risk was pronounced, the defendant is expected to act and prevent the risk
from occurring. In Bolton v Stone [1951] the plaintiff was injured by a cricket ball that flew
from the neighbouring cricket pitch. Was there a duty of care owed to the claimant by the
defendant? It was ruled that certain factors were essential in determining a breach of the
standard of care:
 The possibility of the harm occurring
 Where it was practical (in terms of effort and cost) for the defendant to take
precautions
 If the defendant usually provided socially-useful services. The chances of the harm
should be very high, the precautions to be undertaken should be practical, and the
defendant should have been providing useful social services. Any other entity similar
to the defendant would provide similar services; this should be determined.
Paris v Stepney Borough Council [1951] ruled that the standard of care applied in
circumstances where there existed a serious risk of harm should be higher due to the
foreseeability of the risk. The claimant got an eye injury from war; the defendant argued that
it was not normal practice to issue safety goggles to people who were normally sighted. The
defendant distanced himself from the duty of providing safety goggles. The gravity of the
harm that was likely to occur should be relevant to the behaviour of a reasonable person. The
court held that the defendant owed a duty to the specific employee and not to a ‘reasonable
employee’.
Reasonable Foreseeability
This limits the type of claimants, damages or risks which an individual is culpable for. A
defendant is established to owe the duty of care to reasonably foreseeable claimants. The

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court determines the foreseeability of the risk before a standard of care is established. The
risk must adequately satisfy reasonable foreseeability for a breach of duty to be established.
The case of Wagon v Mound [1961] required that the risk must have been foreseeable by a
reasonable person. The defendant’s (mound’s) vessel leaked oil into the Sydney harbour
thereby causing a fire. Was the crew liable for the damage caused? The court held that the
damage caused to the wharf by the fire was not foreseeable. The court ruled that the liability
of a person only existed if the damage was foreseeable. It established the rule of remoteness
in negligence. It was held that the defendant was not liable since the risk was not foreseeable
under the said conditions. However, in Wagon v Mound [1967] it was held that the defendant
violated the duty of care since a reasonable person (professional) on the ship was able to
notice that there was a risk of fire. Even though oil spillage was unlikely, the defendant knew
that such occurrences were a possibility. The necessary precautions were entirely not
expensive. Thus the defendant was capable of meeting the costs. The approach used in this
case was the consideration of the seriousness and gravity of possible injuries.
The Cost of Handling the Risk
The court has to consider the cost of the precautions to be undertaken by the defendant
(Rickards v Telecom [1983]). In this case, the plaintiff sued because the power company did
not provide adequate services; damage was caused by the unconnected parts of the electricity
cables. It was held that there was no breach of duty since the cost of carrying out the
connections was high. If the total cost of dealing with the risk is low, then the precaution is
deemed to be reasonable for the defendant to have undertaken it. In Haley v London
Electricity Board [1965], it was held that the defendant’s actions were likely to cause harm
and there was a different way in which a reasonable person would behave. The employees of
the defendant dug a hole along the pavement and failed to fence it. As a result, the claimant
(who is blind) could not see the warning sign put by the employees, and he fell into the pit.
The defendant was in breach of the duty of care; it is negligent no in foreseeing the injury of
people who are not normally sighted. Not thinking so would be discriminative; therefore, the
defendant is obliged to take necessary precautions that would not put anyone (regardless of
their situation) at risk (Raz, 2010).

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Non-delegable duty of care
It is a duty placed upon the employer and it cannot be transferred to an employee even if
there is reasonable care taken to entrust the responsibility (Safety & Environmental Health
Law 265). In the case of Wilsons & Clyde Co Ltd v English [1938], the defendants had
delegated the operation of safe working system to one of the employees. All reasonable steps
had been taken; the employee was experienced. However, the plaintiff (Mr. English) had also
been employed to repair the airway of the haulage system. English was crushed to death by
the haulage during the repairs. The court found the company liable as the duty of safe work
system is non-delegable; the four specific non-delegable duties were established.
Duty to provide competent fellow employees
The competence of fellow workers can make an employer liable if the employee is untrained
or inexperienced and if the employee is a bully or plays practical jokes; if the two result in
another’s injury then the employer is liable. In the Hudson v Ridge Manufacturing Co Ltd
[1957] case, the claimant as a result of a fellow employee’s practical joke. The employer was
held liable because he was aware of the employee’s proclivity to practical jokes.
Duty to provide Safe plant & equipment
Duty also involves all equipment, machinery and plant availed by the employer for work.
Where unreliability or defects are beyond the employer’s control, the employer will not be
liable. In the case of Davie v New Merton Board Mills [1959], the defendant had failed to
remove all defects in the working tools; that resulted in the claimant’s blindness. It was,
however, held that the employer was not liable since the defect was not foreseen.
Duty to provide Safe premises
The employer has an obligation to provide safe premises (free of defects). Premises have a
broad definition. At common law, premises are generally described as the workplace areas of
an employee. In the case of Latimer v ACE Ltd [1953], an employee slipped and fell due to
oil spillage that was caused by heavy rains. The defendant (employer) had spread as much
sawdust as possible to cover the oil. The court held that the employer was not liable since the
employer had done what was expected reasonably expected of him.

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Duty to provide Safe System of Work
The employer has a duty to ensure that there is safe work practice occurring. He or she must
also be able to maintain the safety. The liability extends to experienced employees provided
that the work practice is unsafe. Unclear instructions and failure to monitor the employees
also leads to the employer’s liability.
The employee has to prove two things in the non-delegable duty of care:
 There was breach of duty by the employer
 The breach resulted to the employee’s injury
The Workers Compensation and Injury Management Act 1981 (WA) also determines the level
of injury that has to be suffered by the claimant.
 15 to 25% (capped damages)
 25% and above for uncapped damages
Indirect/ Vicarious liability
The employer is also liable for an employee’s negligence in the line of duty. In the case of
Deatons Pty Ltd v Flew [1994], a barmaid glassed a customer and the plaintiff sued the hotel.
The hotel was not found liable since that was an act of passion; outside her employment.
Damage
Damages bestow monetary values to the harm caused by the defendant; it seeks to restore the
claimant to their original status before the occurrence of the action. The legal responsibility
of the defendant in breaching a duty is irrelevant to the quantification of damages. Once the
court establishes that there is a breach of duty, the defendant is obliged to compensate the
claimant (Steele, 2010). The nature of damages is compensatory. The compensation includes
the loss suffered by the claimant; the victim’s injuries (mental and physical) are addressed,
and he or she is compensated for the pain suffered (Bryden & Storey, 2011).
The damages are awarded based on two principles:

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 The compensation should be done using a single huge payment; the defendant is not
allowed to make part payments (there are exceptions)
 The claimant’s use of the damages awarded is not important to the court; the victim
can spend the money in whichever way they want to (Steele, 2010).
Types of Damages
Special Damages
These are quantifiable monetary values from the time the tort (defendant’s negligent actions)
occurred up to the specific time of the individual’s pain and suffering. The law does not
presume these kinds of damages, and therefore they must be expressly pleaded for the reason
that they result from special conditions as in the case of Carson v John Fairfax & Sons Ltd &
Slee [1993]. The plaintiff sued Slee (the defendant for defamation. The most appropriate
remedy for defamation is by damages. However, the state of mind is not considered in
awarding damages. It includes the wages lost and medical bills accrued (Miller, Clarkson and
Cross 2010, 121).
General Damages
This type of damages is not monetary quantifiable (no evidence of invoices or receipts). Here
the court tends to compensate for the pain and suffering experienced from the injury (Plenty v
Dillon [1991] 171 CLR 635). Plenty (the owner of a small land) forbade Dillon (a constable)
from trespassing on the land. Did Plenty have the right to forbid Dillon from entering his
land? Plenty had exclusive rights, and for that reason, Dillon’s licence was revoked; this is
general damage.
Punitive Damages
This seeks to punish the defendant for the negligent actions that resulted in the claimant
injuries; here the claimant is not compensated. Punitive damages are also served when the
tort outrages the judge or jury as in the case of Midalco Pty Ltd v Rabenalt [1989]. In this
case, the court increased the exemplary damages to $250, 000 on appeal. The negligence of
the plaintiff had caused personal injuries. The court held that the actions of the defendant
were reckless as he had disregarded the claimant’s rights and ignored the defendant’s
obligations.

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Aggravated Damages
The claimant is compensated for the defendant’s actions which increased his or her injuries
(Wilcox, 2016); it could be through insults or humiliation. These types of damages are
recoverable as seen in the case of Rookes v Barnard [1964]. Rookes was a draughtsman
employed by BOAC. He resigned from and refused to join AESD (a trade union). His
colleagues thus organized a strike because of that, and as a result, his contract was
terminated. Rookes also received threats and intimidation from members of AESD. The court
held that the tort of intimidation existed and Rookes was awarded damages.
Causation
This aspect revolves around who was directly involved in causing the victim’s injuries. In
Yates v Jones [1990], it was established that a third party had broken the chain of causation.
Jones caused a car accident that led to physical injuries to Yates. He was admitted to the
hospital; Yates friend brought him heroin to help with the recovery. Yates sued Jones for
becoming addicted to heroin. However, did the defendant’s careless conduct relate to the
actions of the third party? The two events were not congruent; therefore the defendant was
not liable; Donoghue v Stevenson required a reasonably foreseeable consequence that arose
from the individual’s actions. In Yates v Jones thee was lack of reasonable consequence of
Jones’ actions.
In March v Stramare [1991], it was determined that there are two tests for causation. “But for
test” failed in cases involving multiple acts. The test was not sufficient in determining the
actual cause in cases of Novus actus interveniens. Stramare (the defendant) packed his truck
in the middle of the road as they were unloading items to a shop. The claimant (March)
rammed into the truck while driving; he was drunk. The plaintiff sustained physical injuries.
What caused the injury? The defendant’s negligent parking was a contributing factor.
Common sense is essential in supplementing the ‘but for’ test. The second test (the law)
involves considering the public policies and value judgements. A third party’s acts could not
be said to have broken the defendant’s chain of causation if it was a result of that initial
action (Bailey, 2010). In Yates v Jones the claimant’s friend broke the chain of causation
since the act was not a consequence of the defendant’s carelessness; it was not a foreseeable
consequence.

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Application of the Law
In this case study, negligence has to be proved as the area of law relevant to the case:
Keith slipped and fell; he sustained injuries on his left wrist, neck, and right collar bone. The
injuries resulted from the beer spilt by Bill on the floor; reasonable foreseeability as
stipulated in Wagon v Mound [1961] should have been applied. The action created a risk to
Keith’s body (Jones v Bartlett).Anyone is reasonable enough to notice the effects of a wet
floor; it could result in a fall or slip (Bolton v Stone [1951]). Therefore, the injury causes were
foreseeable. The facts of the case are strong enough to build a negligent tort claim action.
First, it is essential to determine if Keith’s injuries resulting from Mick’s negligence was
foreseeable. Mick was present when Bill spilt the beer; the duty of competency of co-workers
is tested here (Goldberg, 2016). He knew that the wet floor was capable of causing a fall; it
was imminent. Secondly, Mick is Keith’s employer; the proximity is enough for a liability to
be created as a result of Mick’s carelessness. Lastly, is it fair that Mick owed Keith a duty of
care? Being Keith’s employer, Mick is supposed to ensure that the working conditions are
favourable. Moreover, the employer-employee relationship between Mick and Keith, the fact
that Bill is Mick’s nephew (Yates v Jones [1990]) and Mick failing to eliminate the source of
Keith’s fall is enough to prove that a duty of care was breached.
The “but for” test that was established in the case of March v Stramare is also applicable.
Who employed Bill? Bill was employed by Mick and Charlie probably because he is Mick’s
nephew despite his proclivity to practical jokes. But for the employers’ ignorance, Keith
would have gotten a competent co-worker. The duty of ensuring that Keith has competent co-
workers who are capable of establishing a reasonable standard of care is breached. Moreover,
if Keith would have had appropriate work equipment (footwear) he would not have slipped.
The duty of providing safe work equipment is also put to test. The employers (mick and
Charlie) did not provide Keith with the necessary work tools.
Does the employer ensure that there is safe work practice? Bill spilt the beer in the presence
of Mick. As a reasonable employer, Mick should have administered constant supervision to
ensure that everything was in order. Beer spillage is a foreseeable risk in a bar. The
employers (Mick and Charlie) should have ensured that the risk was eliminated by providing
the relevant equipment (footwear) for their employees. There is breach of the duty of

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providing safe work practice and Keith was injured because of the breach. Therefore, Keith
should receive damages as stipulated in the Workers Compensation and Injury Management
Act. The fact Keith was injured because of Bill’s negligence while in the line of duty also
places vicarious liability on the employers (Mick and Charlie).
Keith could also seek aggravated damages because of the place he was asked to work from
increased the pain he experienced (March v Stramare [1991]). Mick and Charlie knew that
Keith needs a favourable environment for recovery, but he is still asked to work by the road.
The place makes Keith’s health condition worse. This is a duty of safe work premises.
Mick and Charlie can raise the defence of contributory negligence. In Keith’s case, he was
not wearing any footwear (not following due process). However, Keith can also counter this
defence by indicating that no rules or work procedure had been communicated to him.
Conclusion
Mick and Charlie will be found guilty of negligence because of the special relationship
(employer-employee) established between them and Keith; the fact Mick also ignored the
source of danger increase their liability for Bill’s actions.

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References
Article, Books and Journals
Bailey, S. H. "Causation in negligence: what is a material contribution?." Legal Studies 30.2
(2010): 167-185. https://doi.org/10.1111/j.1748-121X.2010.00155.x
Bryden, Daniele, and Ian Storey. "Duty Of Care And Medical Negligence". Continuing
Education In Anaesthesia Critical Care & Pain 11 (4): 124-127 (2011).
doi:10.1093/bjaceaccp/mkr016.
Coleman, Jules. "Theories of tort law." Stanford Encyclopedia of Philosophy (2010).
Goldberg, John CP, Anthony J. Sebok, and Benjamin C. Zipursky. Tort Law: Responsibilities
and Redress. Aspen Publishers, 2016.
( LSCSA) Legal Services Commission of South Australia. "What Is Negligence?".
Lawhandbook.Sa.Gov.Au. (2013) https://lawhandbook.sa.gov.au/ch29s05s01.php.
Miller, Roger LeRoy, Kenneth W Clarkson, and Frank B Cross. Study Guide To Accompany
Business Law. 12th ed. Mason, OH: South-Western Cengage Learning, 2010.
Moffett, Peter, and Gregory Moore. "The standard of care: legal history and definitions: the
bad and good news." Western Journal of Emergency Medicine 12.1 (2011): 109.
Raz, Joseph. "Responsibility and the negligence standard." Oxford Journal of Legal
Studies 30.1 (2010): 1-18. https://doi.org/10.1093/ojls/gqq002
Steele, Jenny. Tort law: Text, cases, and materials. Oxford University Press, 2010.
Wilcox, Vanessa. A Company's Right To Damages For Non-Pecuniary Loss. Cambridge
University Press, 2016.

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Cases
Bolton v Stone AC 850 [1951]
Carson v John Fairfax & Sons Ltd & Slee [1993] HCA 31; (1993) 178 CLR 44
Davie v New Merton Board Mills [1959] AC 604
Deatons Pty Ltd v Flew [1994] 79 CLR 370
Donoghue v Stevenson [1932] A.C. 562, [1932] UKHL 100, 1932 S.C. (H.L.) 31, 1932
S.L.T. 317, [1932] W.N. 139 [1932]
Fardon v Harcourt-Rivington All ER Rep 81, (1932) 146 LT 391 [1932]
Farwell v Keaton [1976]
Haley v London Electricity Board [1965] AC 778
Hall v Brooklands Auto-Racing Club [1933] 1 KB 205
Hudson v Ridge Manufacturing Co Ltd [1957] 2 QB
Jones v Bartlett (2000) 205 CLR 166
Joslym v Berryman [2004] 214 CLR
Latimer v ACE Ltd [1953] AC 643
March v Stramare Pty Ltd [1991] 171 CLR 506

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Midalco Pty Ltd v Rabenalt [1989] VR 461
Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co (The Wagon Mound) [1961]
AC 388
Overseas Tankship (UK) Ltd v The Miller Steamship Co or Wagon Mound (No. 2) [1967] 1
AC 617
Paris v Stepney Borough Council [1951] AC 367
Plenty v Dillon [1991] 171 CLR 635
Rickards v Telecom [1983] 3 NSWLR 155
Rookes v Barnard [1964] AC 1129, 1221
Stovin v Wise [1996] UKHL 15
Wilson & Clyde Coat Co v English [1938] AC 57
Yates v Jones [1990]
Legislation
Safety & Environmental Health Law 265
Workers Compensation and Injury Management Act 1981 (WA)