Elements of Negligence Case Study 2022

Running head: NEGLIGENCE
NEGLIGENCE
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Author Note

1NEGLIGENCE
Elements of Negligence
Under the common law of torts, negligence can be defined as a legal wrong suffered by a
person because of the failure of another person for taking proper care to be avoiding any risk that
would be generally foreseeable by any reasonable person. For a claim of negligence to be
succeeding there requires the existence of a contractual relationship.
Under the provisions of the Civil Liability 2002 four elements are needed to be proved by
the plaintiff for establishing a claim of negligence. The four elements are- there must be a duty of
care owed by the defendant to the owner, the defendant had breached that duty of care, the
breach caused harm to the plaintiff and lastly there must be actual harm suffered by the plaintiff
and the harm had been a result of the breach of care.
Duty of care
The first element in the tort of negligence is the duty of care. For a successful negligence
claim the plaintiff needs to prove that the defendant had owed a duty of care towards the
plaintiff. There are two types of duties that one person could owe to another person. These two
duties are- the general duties of care, and special duties of care. The general duties are the duties
that any reasonable person would perform for any other person, which under normal
circumstances would have been conducted by him for himself. In a negligence suit the
defendant’s actions are observed and from that action it is determined whether any reasonable
person would have acted in a similar way in which the defendant had acted. The duty of care
would only be seen to be fulfilled if the behavior of the defendant matches the behavior of any

2NEGLIGENCE
reasonable man. The special duties are the duties that have been imposed by way of statutes and
case laws existing either in addition to or in the place of regular duties of care.
The case Donoghue v Stevenson [1932] was the first case in which the test for the duty of
care was first established. The presence of duty of care in this was decided by Lord Atkin by
using the neighbor test. The main criteria as per the test that needs to be proven are- the harm
needs to be reasonably foreseeable and a proximate relation should be present between the
parties. In the case Grant v Australian Knitting Mills [1935] it was established by the court that
the harm or injury of the plaintiff needs to be as such that it would be foreseeable by any
reasonable person. In the case Annetts v Australian Station Pty Ltd [2002] the court established
that there should be a proximate connection existing between the duty and the effect. In the
present days, however, a three step test is used for proving the existence of negligence. The test
was first established in the case Caparo Industries Plc v Dickman [1990]. The three criteria that
needs to be proved as per the provisions of the Caparo Test are- (1) the harm should be
reasonably foreseeable, (2) there should be a proximate relation present and (3) the duty
imposed on the defendant should be reasonable, just and fair. As per the judgment in the case
Esanda Finance Corporation v Peat Marwick Hungerfords [1997] for any third party loss any
person cannot be held liable if that loss was not reasonably foreseeable. In the case The Wagon
Mound no 1 [1961] whether the defendant could be held liable for any reasonably foreseeable
loss had been decided. However as per the ‘egg shell skull’ rule established in the case Smith v
Leech Brain & Co [1962] the defendant can be held liable towards the unforeseeable reactions
that the plaintiff has for the negligent or intentional act of the defendant. As per the rule the
defendant needs to take their victim as they find them.