Negligence in its legal sense means a failure in law to do what a reasonable person would have done in the circumstances. To establish liability a plaintiff must first establish that the defendant owed a duty of care towards the plaintiff. Over a period of years the law has established the requirement that people (including companies and governments) should conduct their affairs to the standard required of the reasonable person.
Before a plaintiff can recover compensation from a defendant in a negligence action, the plaintiff must show three things:
- that the defendant owed the plaintiff a duty of care;
- that the defendant breached that duty of care; and
- personal injury or property damage suffered by the plaintiff as a result of that breach (causation).
When is there a duty of care?
When a court determines whether a duty of care is owed, it will take into account a range of legal principles and legal policy factors. Where a situation is a new one – where the relationship is not an established relationship including a duty of care, the courts take into account numerous factors. These can include:
- the kind of harm suffered by the plaintiff (for example, physical, economic, mental);
- the defendant’s control over the situation that gave rise to the harm, and the plaintiff’s vulnerability to that harm;
- the nature of the relationship of the plaintiff and defendant, compared to other duty relationships;
- ethical and moral considerations, including human rights considerations; and
- consistency and coherency of legal principles and relationships;
There are some easily established relationships where a duty of care exists, such as occupiers liability, and motor vehicle liability. Outside of established relationships, the courts will consider the factors listed above in determining a duty of care.
Even where a risk is reasonably foreseeable, a court may not hold that a defendant has a duty of care. In determining this, the vulnerability of the plaintiff, whether the risk was ‘not insignficant’, and the nature of the harm suffered are essential considerations. There are also issues of inconsistency with other duties owed by the defendant in other relationships. For example, where a social worker investigates allegations of child abuse against a father, and the harm that follows is the loss of the father’s reputation and employment, the courts will consider the duties of the social worker to investigate the claims, and the duty relationship between social worker and child to override the reasonably foreseeability of the risk of harm to the plaintiff.
Other situations that are also not so easily decided include: does a driver owe a duty of care to a person out walking at night on the highway? Does a landowner owe a duty to a person trespassing on their land? Does an employer owe a duty of care to an employee who was injured despite the fact that employer took every precaution then known to the industry to protect the worker? They will be questions of fact for the court. Often, work place issues will be dealt with under different legislation.
Breach of Duty of Care
The current position in Tasmania for a plaintiff to establish a breach of a duty of care requires the plaintiff to satisfy three elements:
- the person (PLAINTIFF) knew or ought to have known of the risk – sometimes called ‘reasonable foreseeability’;
- the risk was not insignificant;
- a reasonable person in that person’s position would have taken precautions against the risk.
That the risk was ‘not insignificant’ is one of the changes brought in by the Civil Liability Act. It has raised the bar required of a reasonable person before they are required to act. So, whilst a harm may be reasonably foreseeable, it must also not be an insignificant risk. The standards are unclear, and are decided on a case by case basis.
In addition, the precautions that a court will consider reasonable will vary according to circumstance. The considerations that a reasonable person would have made in deciding to take precautions against a risk are specified in the statute:
- the probability that the harm would occur if care were not taken;
- the likely seriousness of the harm;
- the burden of taking precautions to avoid the risk of harm; and
- the potential net benefit of the activity that exposes others to the risk of harm.
In Tasmania, the courts can still consider the common law in reaching a decision.
The person knew or ought to have known the risk: reasonable foreseeability
So, for example in determining whether the person knew or ought to have known of the risk, the court can pay heed to Donoghue v Stevenson, a case from 1932 that concerned the remains of a snail in a bottle of ginger beer. Donoghue notes the importance of the foreseeability of the injury or damage resulting to the plaintiff from the defendant’s conduct, or lack of action.
Causation
Causation in the Civil Liability Act requires that the negligence be a necessary condition of the harm, and that the harm falls within the scope of the defendant’s liability. This means there must be a connection between the alleged negligence of the defendant and the harm caused to the plaintiff. It is a question of fact. A popular articulation of causation is: ‘but for the actions of the defendant, the plaintiff’s harm would not have occurred’. This is called the ‘but-for’ test. However, the Civil Liability Act has reworded this test to the cause being ‘a necessary element of the occurrence of the harm’.
The Civil Liability Act asks whether the foreseeability was ‘appropriate for the scope of the liability of the person in breach to extend to the harm so caused’. The Act looks to policy issues that may arise. The best way to phrase this is: ‘is there a reason the defendant shouldn’t be held liable?’ Consider the social worker example. This means that although a defendant may be in breach of a duty, the court may find that they are not responsible for the harm.
Another example would be the case of Verwayen, where the Commonwealth had been in breach of its duty of care when a ship sunk due to negligence. The Commonwealth was liable for the accident, however, the plaintiff sued for lung and liver cancer that resulted from heavy smoking and drinking that began on his part due to experiencing the accident. Previously, the courts discussed this in terms of ‘proximity’ and ‘remoteness’. Another factor is ‘nova causa interveniens’ – an intervening cause. The Civil Liability Act looks at this in terms of policy reasons: it would be inappropriate to hold one party responsible for all consequences of an event where there have been intervening factors, such as a person’s own choices.
The risk was not insignificant
A breach of a duty of care is often self evident. The Civil Liability Act has added an additoinal requirement that the standard to be met in finding a breach of duty from that of the risk not being ‘far fetched or fanciful’ to ‘not insignificant risk’. How much a ‘not insignficant risk’ exceeds the requirement of reasonable foreseeability is unclear, and to be determined on a case by case basis.
A reasonable person would have taken precautions against it
This is easily referred to as ‘carelessness’. Carelessness is a failure to do what a reasonable person would have done in the circumstances. However, with the Civil Liability Act, the court now considers factors such as cost, and the magnitude of the risk in the taking of precautions. The question of what a reasonable person would have done in the circumstances is a question of fact in each case. For instance, a reasonable landowner might erect a fence along a cliff-face on their land if they knew that people were likely to be walking in the area. However, that landowner might not erect a fence if they thought that no-one walked there or sufficient barriers were already erected to keep people off the land and away from the cliff. If someone did fall over the cliff, the question of whether the landowner would have faced unreasaonble costs in fencing to prevent the injury would be a question of fact for the court.
Special Skills
When it is claimed that a person has negligently performed a task involving the exercise of special skills, the test for carelessness is whether the defendant carried out the work as carefully as a reasonably competent person possessing those skills would have. A surgeon is negligent if they fail to attain the standard of a reasonably competent surgeon. A house builder must attain the standard of a reasonably competent house builder otherwise they will be judged careless. This permits courts to consider the personal characteristics of the class of person to which the defendant belongs.
Two other legal views re Duty of Care and Negligence when ocean swimming
1. LEGAL CONSIDERATIONS FOR BEACH SAFETY - BEACH SAFETY AND THE LAW NATIONAL SUMMIT 2007 8-9 NOVEMBER 2007, SURFERS PARADISE MARRIOTT