Negligence and Duty of Care in NSW: A Case Study

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CORPORATION AND ENTERPRISE LAW
PART – A
A. Introduction
In NSW, a case of negligence can be registered under breach of duty of care when the
claimant can prove in a court of law that the negligent party either knew or was in a
position of knowing the risk of harm, and the precautions which a reasonable person
will take against the risk if faced with similar circumstances.
In this case study, Harry and Will can be charged under the prevailing Tort Laws in
Australia, although claims related to negligence in NSW are governed under the Civil
Liability Act, 2002 legislation as per Barker et al, (2012). A tort is considered under a
civil wrong and is separate from a breach of contract. Torts can be used for suing a
private individuals by another private individuals for countering the effects of a conduct
or wrong.
B. Definition of Negligence in New South Wales?
Under the NSW Civil Liability Act, 2002, negligence is defined as arising when an
individual does not exercise what should be reasonable care and skill. Hence, in case of
Harry and Will, a claim of negligence under NSW legislation will arise only when it is
proved beyond reasonable doubt that they had breached their common law duty of care
which they owed to the claimant(s) and which resulted or could have resulted in some
damage or injury, assert Bottomley et al, (2017).
C. Elements of Negligence
For making a claim in NSW of negligence, says Lunney, (2017), the claimants need to
prove one or all of the following three elements against Harry and Will, that:
1. A duty of care did exist between Harry and Will and the claimants;
2. Harry and Will breached their duty of care which they owed to the claimants; and
3. Damage or injury which was suffered by the claimants was caused by breach of
duty by Harry and Will.

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D. Duty of Care
In NSW, duty of care under cases of negligence can only be established by proving the
type of relationship which existed between the claimant and the negligent party. Since
common law in NSW is under constant evolution, it keeps on increasing the duty of care
categories, assert Stewart & Stuhmcke, (2012). Hence, the courts follow the general
principle of duty of care which was cited in the case of Donoghue vs Stevenson, as this
case introduced the claim which people owed as duty of care to their neighbors. In
general, says Dyson (ed), (2015), NSW Courts recognize that a duty of care does exist
in case of following relationships:
 Patient to Doctor
 Tenant to Land Owner
 Visitor to Premises and Occupier of Premises
 Consumer to Producer of Goods
 Student to Teacher
 Pedestrian to Vehicle on Road
 Employee to Employer.
E. Breach of Duty of Care
A breach of duty of care will only happen when Harry and Will did not meet the
standard of care. Hence, as per Arvind & Steele (ed), (2012), in filing a case of
negligence against them in NSW, a breach of duty of care will be proved only when the
claimants can exhibit that:
 There existed a substantial risk of harm.
and
 Harry and Will knew, or could have reasonably known the risk of harm.
and
 Harry and Will would have taken reasonable precautions against the impending
risk if faced with same circumstances.
The NSW Courts, says Harlow, (2005), while deciding on the issue of reasonable
precautions would take into consideration one or all of the following factors:
 The severity of a likely occurring harm or damage.
 The difficulty levels of measures to be taken for avoiding the harm.

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 The probability of harm taking place in case the negligent person did not take
care.
 Social benefits for negligent persons from the activity that caused the risk of
harm.
F. Advice to Parties
My advice to Meghan and Catherine being the two individuals who were subjected to
physical harm is that they should also have resorted to reasonable steps for prevent the
harm occurring to them. By this I mean they should have taken the required minimum
precautions for avoiding the degree of harm they suffered, as per Levy et al (ed), (2017).
They must also understand that court will take into consideration the effects of a breach
of duty of care on a case-to-case basis.
I must also put a word of caution to both the claimants that if it is proved that they
contributed to the harm suffered by them, they can be subjected to contributory
negligence which will reduce the amount of compensation. The amount equivalent to
contributory negligence will depend on how much negligence the person has
contributed for creating their own harm.
PART – B
A. Introduction
Duty of care, under the tort law, is a legal obligation and is imposed on an individual so
that he adheres to the standards of reasonable care while he performs acts which could
in one way or other harm others. While establishing the process when consider the
action of negligence, it is considered as the first requirement. Going further into the law,
assert Campbell & Lord (ed), (2018), one can come across tort of negligent
misstatement, which is defined as an “inaccurate statement, which is made honestly but
carelessly by an advisor having special skill or knowledge, usually in the form of an
advice to a party which does not possess those skills or knowledge."