Duty of Care as an Element of Negligence
For the purpose of winning a claim in relation to negligence the claimant has to prove all the elements required to constitute a valid negligence claim. For instance one of such element is duty of care. This means that the person making the claim has to be owed a duty of care by the defendant in order to make him liable for the injuries caused. However even if it is proved that the defendant had a duty of care a negligence claim would not be successful if there is no cause in fact. The court in order to provide a decision in relation to the negligence case compares the evidence, testimony and facts to determine whether the elements of the negligence were satisfied. The elements of a valid negligence claim include duty of care, breach of duty, cause in fact, proximate cause and damages. Detailed discussion in relation to the elements has been done below.
Duty of care as an element of negligence had been discussed by the court in the case of Donoghue v Stevenson (1932) AC 562. The court stated that there is no requirement of a contractual relationship to make a person have a duty of care towards another person. The case in relation to the famous neighbour principle provided by it stated that a person should act as a good neighbour and avoid any possible injuries to other neighbours. A neighbor who can possibly injure another neighbor is deemed to have a duty of care.
Section 5B of the Civil Liability Act 2002 provides that a person would be negligent in failing to take precautions with respect to others in case the risk was foreseeable, the risk was not insignificant and in the similar situation reasonable person would take such precautions.
In addition it has been provided by subsection 5B (2) that a reasonable person would take precautions against the risk or not is considered by taking into account the probability of the injury if the precautions are not taken, the seriousness of the injury, the burden of taking additional care to avoid injury and the social utility of the activity which has caused injury. In case the person has not taken the precautions of the standard of a reasonable person, the duty is breached.
In the case of D’Arcy v Corporation of the Synod of the Diocese of Brisbane [2017] QSC 103 it had been provided by the court that a person would only be able to claim negligence where the injury caused to him or her is the direct result of the negligence caused by the defendant. Therefore Factual causation has to be present.
Breach of Duty
Section 5D of the CLA provides principles to determine whether negligence had caused the harm in context. The section provides that causation would be established if negligence was the required condition for the harm being caused and it is reasonable to extend the liability of the negligent person to the harm caused.
In the case of Liverpool Catholic Club Ltd v Moor [2014] NSWCA 394 the court stated that the negligent action of the defendant have to be the proximate cause of the injuries suffered by the claimant for the purpose of establishing negligence.
Damages
Damages are the compensation which are provided to the party who has suffered an injury because of negligence of another party. Only those damages which can be reasonably foreseeable are to be compensated under the law of negligence according to the principles of the case of The Wagon Mound no 1 [1961] AC 388.
Contributory negligence takes place when the party who has suffered damages have acted in a way which has increased their chances of being injured. Section 5R of the Civil Liability Act provides that the standard of contributory negligence is the same as compared to the standard of negligence. In addition according to Section 5S contributory negligence has the potential of defeating a claim.
In the present situation Simon can claim negligence from two parties who are the hospital and Danielle. This is because both the hospital and driver had duty of care towards Simon. The duty of care existed as it was reasonably foreseeable for both of them to predict that if they are not careful Simon may suffer injury. As a driver it was reasonably foreseeable for Danielle to predict that, if she is not careful on the road she might injure others. The duty of care had been breached as a reasonable person with respect to the probability and severity of the injury would take extra precautions of not applying lipstick while driving. Factual Causation has also taken place as Simon has been directly injured because of the negligence of Danielle and it is appropriate to extend the scope of liability of Danielle to the injury of Simon. Actual injury has been caused in this case. The damage which has been suffered by Simon was reasonably foreseeable for Danielle. Thus she is negligent. The nurse also had a duty of care as a reasonable person in her position would be able to predict that if she is not careful she might cause damages to the patient. She was not careful as a reasonable person would have taken extra precautions on the complaint received from Simon. Simon’s leg could have been saved in case proper treatment was done on time and therefore factual causation has also taken place. The provisions of vicarious liability make the hospital liable for the actions of the nurse.
Cause in Fact
In the given situation neither Danielle nor the hospital can be said to have a duty of care towards Sarah. As there is no duty of care, one of the elements of negligence would not be satisfied. The duty of care is not present because it is not reasonably foreseeable for either the nurse or the hospital to predict the damages caused to Sarah. In addition the damages in this case are too remote to be compensated.
Patricia has suffered psychiatric injury against which compensation can be gained in case negligence is proved. However in the same way like Sarah, Patricia also is not owed a duty of care from either the driver or the hospital as it is not reasonably forseeable for the parties to predict the injury Caused to Patricia. Therefore there is no negligence claim in this situation.
In general there is no duty of care owed to a person who has suffered a pure economic loss. This rule has been discussed by the court in the case of Spartan Steel & Alloys Ltd v Martin [1972] 3 WLR 502.
It has been provided through the provisions of section 50 of the CLA that a professional person would not into a liability for negligence if he had acted in a way which is accepted as a reasonable conduct in the profession. However the person would not be able to rely on the section in case the court comes to a decision that the action of the person was irrational.
In the case of SHADDOCK V PARRAMATTA CITY COUNCIL (1981) ALR 385 the plaintiff wanted to purchase a property. They have appointed a solicitor to verify whether the City Council has any plans of broadening the roads near the property. The solicitor called up the City Council to enquire whether there were any such plans. He had been notified that there were no such Plans by the Council. The council also provided him with and indirect written advice was stated the intention of the Council to not have any plans of widening the roads near the property which was to be purchased. However the council made up plan to widen the road near the property. The court in this case held at the Council had to pay compensation to the plaintiff as the owed them a duty of care. They were in a position to reasonably foresee that if they provide wrong advice to the defendant it may cause them financial injury.
In the given situation Jeff has suffered financial loss which is a pure economic loss and under the general rules no duty of care would be present in the situation. However through the application of the case of SHADDOCK V PARRAMATTA CITY COUNCIL in the present situation it can be stated that the city clerk would be having a duty of care towards Jeff. This is because a negligent misstatement has been provided by the city clerk to Jeff which has made him suffer the losses. Any reasonable person in the position of the city clerk would be able to foresee that if they are not careful in reading the plans and provide Jeff wrong advice he could suffer financial losses because of any extension plan by the City Council. On the other hand Tommy had complied with the provisions of section 50 of the Civil Liability act as he had acted in a way which is generally accepted in his profession and is not to be considered as an irrational act by the court. This is because he had taken the necessary steps to enquire whether any problems are associated with the property which Jeff is willing to buy. Therefore the city clerk would have a duty of care to Jef.
References
Civil Liability Act 2002 (NSW) s 5D
D’Arcy v Corporation of the Synod of the Diocese of Brisbane [2017] QSC 103
Donoghue v Stevenson (1932) AC 562
Liverpool Catholic Club Ltd v Moor [2014] NSWCA 394
SHADDOCK V PARRAMATTA CITY COUNCIL (1981) ALR 385
Spartan Steel & Alloys Ltd v Martin [1972] 3 WLR 502.
The Wagon Mound no 1 [1961] AC 388
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