Negligence: Exploring Duty of Care, Professional Liability, and Cases

This assignment provides a comprehensive analysis of negligence under tort law, focusing on the duty of care, breach of duty, causation, and damages. It begins with the foundational case of Donoghue v Stevenson and the establishment of the duty of care, as well as the principles established in Caparo Industries. The assignment explores the components of negligence, including the standard of care, cause in fact, proximate cause, and actual damage. It also addresses professional negligence, detailing the responsibilities of professionals such as advocates, health professionals, and engineers, and the legal consequences of their actions or inactions. Furthermore, the assignment provides examples of relevant case law, including D'Arcy v Corporation of the Synod of the Diocese of Brisbane, Lowns v Woods, Boehm v Deleuil, McKay v McPherson, and Jambrovic v Day, to illustrate negligence in various contexts. The assignment concludes with a reflection on the importance of professionalism and ethical conduct in preventing negligence.

Running head: NEGLIGENCE: A STUDY
NEGLIGENCE: A STUDY
Name of the Student
Name of the University
Author Note

1NEGLIGENCE: A STUDY
Answer 1
Negligence is an offence of civil nature committed by an individual under the tort law. It
is the action performed by a person or an avoidance to perform the action by that person. If a
certain individual does the exact opposite of what an individual of reasonable nature would do, it
may give rise to negligence1. The foundation for negligence was established in Donoghue v
Stevenson (1932)2. In this case, it was provided that even in the situation where there is no
contract, either expressed or implied, a negligence suit shall be accomplished. The first
component of negligence was instituted in this case. This component is the duty to care. This
duty is for any individual or group of individuals who are impacted by the negligence committed
by the person in question. Three ideas were established in Caparo Industries case3, which shall
influence the duty of care towards any individual or group. Firstly, the behavior of the individual
causing the harm, must be rationally predictable. Secondly, there must be a relationship of
proximity. Thirdly, accountability can be levied only when it is rational and just to do so4. The
second component is the infringement of duty to care5. In a given case of negligence, the
standard of the duty to care shall be observed by the court based on the rational behavior of a
sensible person. Any alterations shall be advised by the court if it is needed in case the defendant
is unsuccessful to achieve the compulsory standard. The people of the professional world should
follow the rational standards of professionalism. The rules provided to be followed by the
employees at a workplace may be considered as rational conduct. It is rational to provide
additional care that is more than the usual care to any fragile or restricted individual. However, in
1 Luntz, Harold, et al. Torts: cases and commentary. LexisNexis Butterworths, 2017.
2 Donoghue v Stevenson (1932) ac 562
3 Caparo Industries plc v Dickman (1990) 2 ac 605
4 Stickley, Amanda P. Australian torts law. LexisNexis Butterworths, 2016.
5 Abikhair, Melody R., et al. "Liability in the context of misdiagnosis of melanoma in Australia." The Medical
Journal of Australia 200.2 (2014): 119-121.

2NEGLIGENCE: A STUDY
certain situations, the reasonableness is beyond the capabilities of an individual and harm was
caused even after the individual doing the right thing. In these cases, the court states that the
individual has attempted the general duty.
The third component is the cause in fact. It is very much required to establish the
interrelationship between the cause and the effect in connection to the damage caused by
negligent act. The plaintiff must ascertain that the negligence on the part of the defendant has
caused the injury to the plaintiff6. The fourth component is the proximity cause. This cause is
differed from the factual cause. In certain cases, there may be remoteness in the relation between
the damage of the plaintiff and action of the defendant, however, the action done by the
defendant led to a series of circumstances, which in a way led to the plaintiff, and the plaintiff
suffered injuries because of the action. In such situations, the court must analyze the events of a
particular case and the significance of these events in connection to the action or avoidance to act
by the defendant and the harm suffered by the plaintiff7. Sometimes, the level of remoteness is
very high. In such cases, the court exempts the defendant from the act of negligence as the
connection between the damage caused and the action is unconvincing. When third parties are
involved, in such cases, the defendants might also be exempted; if it can be proved that, the
accountability of the third party is higher than the accountability of the defendant party. The fifth
component is the actual damage suffered by the plaintiff by the violation of the duty done by the
defendant8. It must be the burden of the plaintiff to prove the fact that the harm suffered by him
was due to the negligence of the defendant9. When the injury of the plaintiff is grave, for instance
6 Khodapanahandeh, Solmaz, and Sahar Khodapanahandeh. "PHARMACISTS'NEGLIGENCE AND PRINCIPLES
OF LIABILITY." (2013): 45-62.
7 Barravecchio, Joseph A. "The tort of negligence." Legaldate25.4 (2013): 4.
8 Gutierrez, Ana Laura Campos, Kriengsak Panuwatwanich, and Angela Walker. "Learning from the Past: Analysis
of Factors Contributing to Construction Project Disputes in Australia." Law and Dispute Resolution (2013).
9 Laing, Gregory K., and Simon Hoy. "A Retrospective of Professional Liability of Auditors in Australia." Journal
of New Business Ideas & Trends 16.1 (2018).

3NEGLIGENCE: A STUDY
situations like accidents, destruction of property or even death, that is real bodily injury, primary
importance shall be given by the court to such situations. Less significance is given by the courts
to economic loss suffered by the plaintiff. For instance, loss of wages and loss of profits are less
significant in the eyes of law. However, sometimes the plaintiff might undergo the bodily
injuries and the economic loss at the same time. In these situations, the court shall permit the
plaintiff to recover damages for the secondary economic loss along with the damages for bodily
injuries.
In D'Arcy v Corporation of the Synod of the Diocese of Brisbane (2017)10, damages were
provided due to negligence committed at the workplace. In Lowns v Woods (1996)11, it was
stated that the doctor shall have a duty to care by being there in an emergency and take care of
any individual even if there is no pre-existing relationship with such individual. In this case, the
doctor refused to be present for the patient and thereafter, patient suffered a damage to the brain
and became quadriplegic. It was established in the case that duty to care was existing in relation
to the doctor.
Answer 2
Negligence is also significant in the professional lives of people. Any action or refusal of
action may result in negligence by a professional, the consequence of which might be any
damage to a person. The professional fields where negligence might be committed are advocates,
health professionals, agents, investors, engineers, financial managers and examiners. They all
have a duty of due diligence and care in respect of their clients. The skills and capabilities of
such professionals must be utilized to the best possible extent so that there is no question
10 D'Arcy v Corporation of the Synod of the Diocese of Brisbane (2017) QSC 103
11 Lowns v Woods (1996) Aust Torts Report 81-376

4NEGLIGENCE: A STUDY
regarding the reasonableness and justness of their actions12. When the scenario arises that, where
the professionals are unsuccessful to do their work in a rational way, then the individual who
suffered because of such professionals, shall retrieve compensation. The grounds on which a
plaintiff can retrieve damages from such professionals are suggestions of the professionals,
which is misrepresentative, erroneous monetary proposition; indulgence by the doctors in
relation to their patient is in a negligent manner, wrong done by financial advisors and wrong
done by engineers. The plaintiff, prior to retrieval of compensation, must prove that the
professional owed a duty to care rationally to the plaintiff. It must be proved that a loss has been
caused to the plaintiff because the defendant or the professional violated that duty. It shall be
decided by the court regarding the negligence of a professional based on the incidents of each
case. Circumstances may vary from case to case. The court shall determine the relation between
harm suffered by the plaintiff and the negligence of professionals causing such harm13. However,
when a professional did not neglect his or her duty and did the job skillfully and with utmost
care, and even after such care provided the plaintiff suffered harm, then in such cases the
professional shall be exempted. It shall be according to the authority of the court.
In relation to the above discussion about negligence committed in the professional world,
I should mention that any action or avoidance to act at the workplace might give rise to
negligence if such action or inaction causes an injury to a particular person. It is a crime to
commit negligence in a professional life. Therefore, I would never commit such a crime and
cause pain and injury to another individual. I have a firm belief in the principles of
professionalism and upholding the basic ethics and decency at the place of the work. I shall
12 Baron, Paula, and Lilian Corbin. Ethics and Legal Professionalism in Australia. Oxford University Press, 2014.
13 Townsend, Ruth. "An introduction to the legal system and paramedic professionalism." Applied Paramedic Law,
Ethics and Professionalism EBook: Australia and New Zealand(2019): 54.

5NEGLIGENCE: A STUDY
avoid any kind of negligence and commit to my work in the most diligent and capable manner
possible.
Certain statutes that govern the cases of negligence by professionals are Wrongs Act
(1958) in Victoria, Civil Liability Act (2003) in Queensland and the Act of New South Wales is
the Civil Liability Act (2002).
In Boehm v Deleuil (2005)14, it was mentioned that failure of a doctor to send a patient to
any other specialist is violation of the duty to care, resulting in negligence. In McKay v
McPherson (2010)15, it shall amount to negligence if there was a failure to determine signs of a
heart failure because of misdiagnosis. In Jambrovic v Day (2017)16, the doctor neglected his duty
to care when he failed to warn and provide suggestions regarding the surgery or any other
methods for a brain tumor and the doctor did not disclose that he never did surgery prior to the
present case.
14 Boehm v Deleuil (2005)WADC 55
15 McKay v McPherson (2010) VCC 585
16 Jambrovic v Day (2017) NSWSC 1468

6NEGLIGENCE: A STUDY
References
Abikhair, Melody R., et al. "Liability in the context of misdiagnosis of melanoma in
Australia." The Medical Journal of Australia 200.2 (2014): 119-121.
Baron, Paula, and Lilian Corbin. Ethics and Legal Professionalism in Australia. Oxford
University Press, 2014.
Barravecchio, Joseph A. "The tort of negligence." Legaldate25.4 (2013): 4.
Boehm v Deleuil (2005) WADC 55
Caparo Industries plc v Dickman (1990) 2 ac 605
D'Arcy v Corporation of the Synod of the Diocese of Brisbane (2017) QSC 103
Donoghue v Stevenson (1932) ac 562
Gutierrez, Ana Laura Campos, Kriengsak Panuwatwanich, and Angela Walker. "Learning from
the Past: Analysis of Factors Contributing to Construction Project Disputes in Australia." Law
and Dispute Resolution (2013).
Jambrovic v Day (2017) NSWSC 1468
Khodapanahandeh, Solmaz, and Sahar Khodapanahandeh. "PHARMACISTS'NEGLIGENCE
AND PRINCIPLES OF LIABILITY." (2013): 45-62.
Laing, Gregory K., and Simon Hoy. "A Retrospective of Professional Liability of Auditors in
Australia." Journal of New Business Ideas & Trends 16.1 (2018).
Lowns v Woods (1996) Aust Torts Report 81-376

7NEGLIGENCE: A STUDY
Luntz, Harold, et al. Torts: cases and commentary. LexisNexis Butterworths, 2017.
McKay v McPherson (2010) VCC 585
Stickley, Amanda P. Australian torts law. LexisNexis Butterworths, 2016.
Townsend, Ruth. "An introduction to the legal system and paramedic professionalism." Applied
Paramedic Law, Ethics and Professionalism EBook: Australia and New Zealand(2019): 54.