Tort of Negligence: Breach, Causation, Remedies PDF

THE TORT OF NEGLIGENCE 10.2 BREACH, CAUSATION, REMEDIES  2. BREACH OF THE DUTY OF CARE  A person who owes a duty of care must take appropriate steps to avoid the harm from occurring. The standard is: what steps would a reasonable person (Rogers) take in the circumstances to avoi...

THE TORT OF NEGLIGENCE 10.2 BREACH, CAUSATION, REMEDIES  2. BREACH OF THE DUTY OF CARE  A person who owes a duty of care must take appropriate steps to avoid the harm from occurring. The standard is: what steps would a reasonable person (Rogers) take in the circumstances to avoid the harm? To answer this question, the courts take account of various factors: How likely was the harm? There is no need to guard against very remote possibilities. How great would the harm be? You must guard more carefully against the risk of very great harm. How difficult is it to avoid the harm? You need not adopt impractical measures. Is it justified, in the circumstances, to take the risk of the harm? For example, the steps necessary to avoid the harm may also pose a risk of harm. Do policy considerations excuse the harm in question? Waverly Council v Ferreira NSWCA 418  3. CAUSATION For the defendant to be liable, the harm to the plaintiff must result directly from the defendant’s conduct. Whether a particular breach of a duty of care causes particular harm is a question of fact to be determined by taking account of common sense, experience, policy and value judgments. The common law asks: “Would the harm have occurred but for the defendant’s conduct?” State and territory legislation now sets out similar principles. To determine whether negligence caused particular harm it should be asked: (a) was the negligence a necessary condition of the occurrence of the harm, and (b) is it appropriate for the scope of the negligent person's liability to extend to the harm so caused. The plaintiff has the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. If other events intervene as the proximate cause of the harm, the defendant is not liable. If a plaintiff somehow contributed to their own harm (contributory negligence) the losses must be apportioned between the parties. Imbree v McNeilly HCA 40  TYPES OF HARM NOT RECOGNISED Not every type of harm gives rise to liability. The harm must not be too remote - a person in the defendant’s position must have recognised the harm as a real possibility, not very remote or beyond what would have been reasonably contemplated. Harm that cannot be quantified in monetary terms is not recognised. Ordinary grief or sorrow is not recognised as harm.  TORT OF NEGLIGENCE: REMEDIES Damages in tort compensate for harm suffered. The objective is to put the injured party in the position they would have been in but for the commission of the tort. But legislation may put limits on the amount that can be claimed. Various statutory compensation schemes (e.g. Workers’ Compensation) may provide an alternative source of compensation. Injunctions are appropriate when the plaintiff wants the defendant to desist from conduct which threatens to cause damage.