Introduction to negligence PDF

TOPIC 6
INTRODUCTION TO
NEGLIGENCE

Topic 6 Introduction to Negligence
TOPIC OUTCOMES
At the end of this topic you will be able to:
explain the meaning of ‘tort’;
explain the elements of negligence;
apply the elements of negligence to a practical problem;
explain the meaning of causation;
discuss possible defences to negligence;
explain vicarious liability;
explain the purpose of the Civil Liability Act 2002 (WA);
locate legal material; and
analyse and interpret legal information.
1. INTRODUCTION
Consider the following cases:
One day a factory was flooded after a heavy thunderstorm. Oil, which
normally ran in covered channels in the floor of the building, flowed over the
floor because of the storm. The day and afternoon shift workers spread 20
tons of sawdust over the floor to clean away the oil. One worker, who came on
duty with the nightshift, was unaware of the conditions and, while moving a
heavy barrel he slipped and crushed his ankle. Was the employer liable for the
employee’s injury? Had the employer done all that was reasonable to prevent
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Topic 6 Introduction to Negligence
an accident? What could the employer have done? Was the employer
negligent?
Contractors working on a building site blocked the usual approach to the
building on which they were working. People were advised to enter the
building through the adjoining property. One person fell through a hole on the
adjoining property while using the right of way at night. Was the contractor
liable for the person’s injury? Who should be liable? What would you have
done if you were the contractor?
The world in which we live and work is full of hazards and unexpected and
potential dangers. Workplaces of all kinds and descriptions are also potentially
hazardous places, and the possibility of accidents and injuries occurring are
not unexpected. However, if a person is injured or causes an injury or some
harm to another person, it does not mean to say that the person causing the
injury or harm should be held legally responsible for the harm caused, or that
the injured person will always succeeded in a claim.
In this topic we will consider the meaning and scope of the tort of negligence.
We will discuss the elements of negligence and possible defences. In the next
topic we will examine particular areas of duty, in particular professional
negligence and economic loss, in more detail.
2. TORT LAW
The word "tort" means "wrong". The word comes into English from the ancient
French word “tortus” which means “twisted, crooked or damaged”. A tort is a
wrongful act or omission which gives rise to a civil action against the
wrongdoer or tortfeasor. Excluded from this definition is any action for a
breach of contract. Essentially, tort law seeks to protect the rights. The law of
tort comprises many different torts which protect a variety of interests. These
interests include a person's:
(a) body ( the torts of negligence, assault and battery);
(b) reputation (the tort of defamation);
(c) freedom (the tort of false imprisonment);
(d) title to property (the torts of trespass to land and conversion);
(e) enjoyment of property (the tort of nuisance); and
(f) commercial interests (the torts of negligent misstatement and passing
off).
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Topic 6 Introduction to Negligence
Despite their very different nature, most torts share common features, such
as:
Usually an element of fault is required, i.e. proof that the defendant acted
intentionally or negligently. (Exceptions are certain torts of strict liability
where a defendant is liable regardless of any personal fault.)
Most torts require that actual damage or injury be suffered by the
plaintiff. Exceptions to this are the torts of defamation (libel), trespass to
land and nuisance.
In most actions in tort, the remedy sought is damages i.e. monetary
compensation. Since the law of torts is concerned with compensating the
victim rather than with punishing the wrongdoer, the general rule is that
the plaintiff should be put in the position which he enjoyed before the
commission of the tort. Other remedies available for some specific torts
are injunction, abatement (or self-help), and restitution of property.
The defendant may raise specific defences in tortious actions. For
example, in negligence actions the recognized defences are contributory
negligence and voluntary assumption of risk.
A person may be held liable for the tort of another in certain
circumstances. This is known as vicarious (or indirect) liability.
Today, insurance spreads the burden of tortious liability. For example, there is
an insurance component in motor vehicle registration fees. Consequently it is
an insurance company, rather than a defendant driver, which will pay
damages to a plaintiff injured in a motor vehicle accident.
There is significant inter-relationship between tort and contract, and tort and
criminal law. All are distinct areas of the law, however on occasion a plaintiff
can pursue more than one form of action.
3. THE TORT OF NEGLIGENCE
Negligence is a tort that determines legal liability for careless actions or
inactions which cause injury or damage. Negligence may be defined as the
failure to do something that a reasonable person would do, or doing
something that a reasonable person would not do, as a result of which another
person suffers damage. The damage may be personal injury (for example, a
broken leg) or damage to property (for example, a damaged car) or monetary
loss (for example, the plaintiff has lost money which was invested).
In order to establish the liability of the defendant in negligence, the plaintiff
must prove each of the following (Gibson & Fraser, 2007):
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