Melbourne Polytechnic Commercial Law: Negligence Report (MPA604)

This report delves into the principle of negligence, exploring its origins, definition, and application within the commercial world. It examines the concept of negligence, including how it arises and its various elements, such as duty of care, breach of duty, causation, and damages. The report also covers professional negligence, negligence in business, and real-world examples, including cases like Cattanach v Melchior, New South Wales v Fahy, and Harriton v Stephens. Furthermore, it explores defenses against negligence claims, such as obvious risk, inherent risk, and voluntary assumption of risk. The report concludes by analyzing the common law and regulatory responses to negligence, providing a comprehensive overview of this crucial legal concept.

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Melbourne Polytechnic
Negligence
And it’s effect on the modern world.
Student Credentials
9/1/2019

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Negligence
Carelessness all in all is a demonstration of lack of regard with respect to a person, which
may bring about mischief, hurt or misfortune to another. It is a significant troublesome
situation to demonstrate in lawful field so as to guarantee guiltlessness in a specific case.
Carelessness or Negligence isn't exactly when a thoughtless demonstration is done, yet
additionally when there is an oversight of an activity or an obligation that should be made a
move upon (FindLaw, 2019). As per the Section 4 of Law of Negligence and Limitation of
Liability Act, 2008 (NI) of Australia, Negligence is defined as the failure to provide
reasonable care.
There are a certain circumstances according to which the concept of negligence becomes
either an ethical concept or a sociological concept. When it is much more concerned with
what needs to be done or what shall be done in a particular situation it becomes an ethical
concept; while when the situation calls for what is being done throughout the years in a
certain scenario or is inclined towards the practice that has been followed throughout,
negligence can be associated with a sociological concept (Makela, 2019).
Generally, as per the tort law that is being governed by the Civil Liability Act, 2003,
negligence consists of five elements; when one (the defendant) owed a duty to another (the
plaintiff) also widely known as duty of care; when that duty is breached by the defendant,
connection between the harm or hurt caused and the actions of the defendant due to
carelessness; a proximate cause, whether the defendant was able to foresee the
repercussions of the act that was being carried out; and the damages or the legally
recognized harm caused by the actions of the defendant (Caxton Legal, 2018).

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In simple words, when there is a breach of duty of care between a professional and a client
that is known as Professional Negligence. A professional negligence can be committed by
any professional; an investing professional providing poor investing advice might lead to
huge losses to the client, and hence making the client entitled to damages. Similarly, an
attorney might engage into a malpractice of legal nature due to non-delivery of a proper legal
strategy and silly errors shall add up to influence the case that is being worked upon in
censorious manner. In order to prove the attorney’s innocence an expert witness shall be
required in order to prove negligence on attorney’s part of breaching the duty of care with the
said client. In fact, in medical field such small acts of carelessness and negligence on
professional’s part might lead to fatal reactions, mental health workers can end up losing their
licence to work and pressed charges upon due to negligence on their part as their work
includes critical information and the clients shall be taken care of with utmost care.
Malpractice in any profession can lead to heavy damages or hurt to the person (Negligence
Laws, 2019). Similarly in cases where there is a breach of duty of care due to negligence on
one’s part and there a harm being caused due to that, be it monetary or physical in a business
matter or in business in general is known as negligence in business (Hartman, 2019).
As far as everyday situation is concerned, there are various scenarios where negligence takes
place and harm due to which others involved are inconvenienced. Such damage can be
monetary while sometimes it can be physical too. For example, a car driver accidentally
pressed the accelerator instead of the break at a traffic light, causing a huge accident and
killing an individual along with others being bruised in the process. Due to a minor single act
of negligence of the car driver, a life was lost, physical damage to many and monetary loss to
various others involved was caused.
The Act of Law of Negligence and Limitation of Liability Act, 2008 (NI) of Australia, was
introduced in 2008 in order to amend and revise the common law of negligence in order to;

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protect people from the issues of illegal activities and intoxication where claims regarding
personal injury or even death are concerned; in cases where death or serious injury has been
caused, an apology cannot be used to fix the issue in civil proceedings; to help and provide
protection and assistance to Samaritans that advice and take care during emergencies or
accidents caused by their actions in civil cases; to provide protection to people working for
the betterment and voluntarily providing assistance for the community work in relation with
their actions from civil liability; and providing waivers including risky activities by people
who participate in them willingly (Federal Register of Legislation, 2016).
There are various major cases related to negligence of individuals, most of which include,
medical negligence, or negligence on part of the medical staff such as care givers, doctors
and nurses as they hold responsibility of particular individual patients and if something
happens to a patient due to negligence on their part it can lead to life-long repercussions.
Some of the leading cases are discussed below:
Cattanach v Melchior [2003] HCA 38; (2003) 215 CLR 1: In this case, the negligence on
part of the Dr. Stephen Alfred Cattanach to spot an extra fallopian tube in the plaintiff’s body
or in a general sense, a negligent advice on the Doctor’s part, caused an unplanned
pregnancy. The court held that giving life to another human is not damage or harm, but the
negligence on the doctor’s part is unacceptable. Hence, the Melchiors were awarded a huge
amount in order to compensate for the damage and loss caused by the pregnancy, by the
defendant. Also an amount was fixed in order to provide for the cost of maintaining and
raising a child (High Court Of Australia, 2003).
New South Wales v Fahy: As per the court’s findings, the negligence on part of the team
members of the plaintiff, Fahy suffered a huge post-traumatic stress. There was no specific
reason for plaintiff’s senior to leave her with the victim along with the medical practitioner in

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the treatment room. Court also found that the plaintiff was left alone in the said traumatic
situation that led to the plaintiff’s chances of being prone to PTSD or Post-Traumatic Stress
Disorder (High Court of Autralia, 2007).
Harriton v Stephens: As specified in the case, the appellant was born with serious congenital
disabilities and was unable to care for herself. The doctor who attended to the pregnant
mother never informed the mother about her infection of rubella virus due to which the child
(now 25 years old woman, the appellant in this case) was born with such disability that she
was unable to look after herself. The mother of the appellant claimed that termination of the
pregnancy would have been done if the doctor would have informed the appellant’s family
about the life long disability of the foetus in question. A claim of hefty damages was made
from the defendant, which was later challenged by the defendant in another court as the Judge
dismissed it on the basis of it being a case of ‘Wrongful Life’ (High Court of Australia,
2006).
There are various other cases like; Liverpool Catholic Club Ltd v Moor [2014] NSWCA 394
(Supreme Court of New South Wales - Court of Appeal, 2014), ABC Developmental
Learning Centres Pty Ltd v Wallace [2006] VSC 171 (3 May 2006) (Supreme Court of
Victoria, 2006) and Oyston v St Patrick's College [2011] NSWSC 269 (13 April 2011)
(Supreme Court of New South Wales, 2011) can be considered as they help explain the legal
scenarios in detail caused due to the negligence of people. These if explored in detail, shall
provide a proper outline regarding the whole concept of real life legal aspects of negligence
in commercial and non-commercial world in present time (Overell, 2017).
Negligence at workplace can be caused by employees, some of which might not cause much
harm while some might cause huge losses to the company and might even result in losing a
client. When this negligence is caused not just by the employee apart from an exception like a

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wilful conduct, but also the employer is involved in the decision making of a certain action
that caused harm or loss to the firm then the liability is not just on the shoulders of the
employee but also the employer. This Joint Liability to pay for the damages can be avoided
by providing proper information to the client, being clear about certain information and not
misleading it to anyone involved. Any sort of vicarious liability shall be borne by the
employer, as the act done by the employee is on behalf of the employer under certain
circumstances.
Any act of misleading information or information that is deceptive in nature or even
providing improper information can lead to huge damages to either another party, party
involved or even to the firm or the company employee is currently involved with. Personal
Liability involves leaking private information to another or securing IP (Intellectual Property)
details without the employer’s consent might lead to breaching the employment contract.
The different defences against a negligence claim can help reduce or even avoid damages in
some cases that have incurred, in order to protect the defendant. When a person applies for a
claim for damages (personal injury) the defences available include;
Obvious Risk: As per the section 15 of Civil Liability Act 2003, an obvious risk is the risk
that every reasonable person shall be aware of in certain situations. According to the act, the
defendant does not owe the plaintiff any duty to provide information or caution regarding
an obvious risk involved in an activity, unless: someone asks the defendant about the risks
involved and regarding precautions on their own; the law specifies that the information shall
be mentioned to warn of the risks; or, if the risk involved is by the services provided by a
professional other than a doctor (Queensland Consolidated Acts, 2019). As stated in Windley
v Gazaland Pty Ltd T/A Gladstone Ten Pin Bowl [2014] QDC 124 (Supreme Court Library
Queensland, 2019).

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But, an obvious risk includes areas as such; risks with low chances of occurring and are a
subject of regular common knowledge; or even the risks those can be seen easily and avoided
for that matter and are not regular or permanent in nature; and risks with less chances of
happening.
Inherent Risk: When an individual, despite all reasonable care and precaution cannot or is
not able to avoid the risk, that is known as an inherent risk, as specified in the Section 16 of
Civil Liability Act 2003 (Queensland Consolidated Acts, 2019). A defendant is not liable for
negligence on its part due to the materialization of the said risk in case of a plaintiff. As in
Pollard v Trude [2008] QSC 335 case, the defendant could not have saved the plaintiff from
the injury at any cost even by cautioning the plaintiff about the oncoming danger (ball in this
case) as there was no time to react for either party (Supreme Court Library Queensland,
2019).
Voluntary Assumption of Risk: A Voluntary Assumption of Risk is when the plaintiff knew
about the risk involved and still took part in the act, and then defendant can easily avoid the
liability. All defendant needs to prove is that; the plaintiff was fully aware of the risk
involved and the repercussions of the same; that the plaintiff had full understanding and
appreciation towards the act one was going to get involved in; and the plaintiff on its own
accepted the existence of that risk. If the risk involved was an obvious one and the plaintiff or
any other sound person should have been aware of it, in such scenario, the voluntary
assumption of risk is a given and the defendant is nowhere liable for any damages caused
(Caxton Legal Centre Inc, 2018). Some activities that include such risks are: Bungee
Jumping, Cliff Jumping, Para Gliding, Para Sailing, Scuba Diving, Free Soloing, Ice Skating,
any many as such. Unless otherwise proved by the plaintiff as mentioned in Section 14 of
Civil Liability Act 2003 (Queensland Consolidated Acts, 2019).

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Contributory Negligence: In occurrence of such a case where the plaintiff suffers a damage
or hurt due to own negligence or carelessness constitutes as contributory negligence and the
defendant cannot be hence, held liable for the same. As the name suggests, Contributory
negligence is when the damages suffered by the plaintiff is a result of plaintiff’s own fault or
to precise, carelessness (Latimer, 2012). Due to any omissions or certain actions on the
plaintiff’s part, resulting in harm is said to be Contributory Negligence (Queensland
Legislation, 2016). As per section 10 of The Law Reform Act 1995 (Qld) the court holds the
power to reduce the damages in such a way that the share of plaintiff’s responsibility need not
be considered as the liability owed by the defendant and thus, both shall bear the damages as
per their share in incurred damages (Queensland Consolidated Acts, 2019). Also, if required,
the court can also decrease the damage incurred by plaintiff to a 100% if it deems suitable
under the account of Contributory Negligence under Section 24 of Civil Liability Act, 2003
(Queensland Consolidated Acts, 2019) and 30G of WCR Act (Queensland Consolidated Acts,
2019). Examples that explain the above mentioned defence are: driving under influence of
alcohol, intoxication in general, not wearing seat belts, not obeying traffic lights and even not
following safety rules while working with harmful substances (Stickley & Mcglone, 17/18).
Acts similar to the Civil Liability Act 2002 with similar impact on negligence include: The
Negligence Tort Law (Mcdonald, 2005) and ACL (Australian Consumer Law) (Australian
Consumer Law, 2019), as these legislations respond to negligence in the similar way the Civil
Liability Act does. According to these, the requirement for an act to be an act of negligence
are the same as mentioned above in the essay and mostly these legislations help the judicial
system to bifurcate and take decisions in an easy and faster way.
Another recent case that can be debated upon in accordance of the topic of discussion here is
the widely known Murray River House Boat Case, or Anton Nixon v Robert Lines [2017]
VSC 723 (Supreme Court of Victoria, 2017) in which the Victorian Supreme Court passed

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and award against the defendant for paying the plaintiff damages of approximately $4
million. The court found that the injuries caused to the plaintiff were a result of negligence on
the defendant’s part as the plaintiff’s legs were struck by the boat’s rotor due to houseboat
driver’s careless actions causing the injuries (Coghlan, 2018).
The abovementioned laws provide a clean and easy method to tend to the negligence related
cases and the Civil Liability Legislation especially tends to each and every aspect of
negligence so as to provide each and every detail regarding how a case or scenario shall be
dealt with. What are the basic requirements for a case to be negligence related or a certain
law shall be used when or how, everything is specified in the Act. Years of revisions in the
act have refined the laws and can be utilized in the current scenarios easily.

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