Negligence is when a person who owes a duty of care, fails to act according to the reasonable standard of care hence causing the injury (Charney & Hunter , 2011). A defendant must owe a duty of care to the plaintiff with a balance of probabilities and must be related to them. The case of Donoghue v Stevenson [1933] AC 562 presents that the test was of reasonable foreseeability and the closeness or proximity of the plaintiff to the defendant. The duty of care can also subsist in advices given by people as was the case in Shaddock and Associates v Parramatta City Council (1981) 150 CLR 225 that is where it is given on negligent basis (Verma, 2010).
Lord Atkin in Donoghueâs case identifies two tests, that of a reasonable foreseeability and proximity in determining duty of cares (Commision, 2008). Reasonable foreseeability states that the duty of care cannot exist if the defendant is not in a position to foresee the likelihood of injury to the plaintiff arising from the defendantâs behavior. (Davies & Le Gay, 2010)
Proximity entails the closeness of the defendants behaviour to the actual damage suffered. The level of closeness must be sufficient but the Australian court in the case of Perre v Append (1999) 164 ALR 606 seeks to state that no proper procedure is in place to determine proximity and hence limiting range of liability.
In determining whether the decisions given are negligent, it must be proved that the advice was of a serious matter, and was acted upon and it was reasonable to act upon the same matter.
The standard of care in negligence cases seeks to provide that a person should act to ensure that they act in a particular way so as not to breach their duty of care. The person’s act must meet the required threshold of a reasonable person of the same skill and knowledge in the same situation. In assessing the standard of care the court looks at the risk of harm occurring, the seriousness of the harm, the burden of reducing that particular risk and the usefulness of that activity (Glannon, 2005).
The probability of harm principles states that the greater the probability of harm, the greater the amount of care which has to be take. This was the case in Bolton v Stone [1951] AC 850
Paris v Stepney Brough Council [1951] AC 367 establishes that the seriousness of a possible injury is to be correlated to a greater degree of care in their actions. Moreover if the cost and avoiding of the risk is small and the actual risk is great, then there is a greater likelihood of a breach if a remedial action is not taken. Haley v London Electricity Board [1965] AC 778. A defendant conduct in undertaking any form of action and that it must conform with the established standard of the profession or trade being used as per Derrick v Cheung (2001) 181 ALR 301. The case of Agar v Hyde (2000) concerning persons injured in a scrum exposed them to unnecessary risks and therefore no duty was required because it would diminish autonomy of those who voluntarily want to participate in such games.
The standard of care is mainly set to assess community values and it is by proving evidence. Wyong Shire Council v Shirt (1980) 146 CLR 40 held, in effect, that a person cannot be held liable for failure to take precautions against a risk that could be described as âfar-fetched or fancifulâ, even if it was foreseeable.
Wrongs Act 1958 Section 48 of the Wrongs Act applies to “any failure to take precautions against a risk of harm”. However, the section contains certain qualifications where a failure to take precautions does not necessarily constitutes negligence” (Verma, n.d.). The case of Chappell v Hart (1998) 195 CLR 232 raised the question of subjectivity and objectivity in ascertaining the standard of care that should be required hence also bringing to light the knowledge and skills of a person. It can be inferred that Australian law adopts the subjective approach in cases of medical negligence.
The standard of care in the current Australian law requires that negligence has two components that are the foresee ability of the risk of harm which is necessary to establish whether the necessary precautions have been undertaken and whether any precautions could have been undertaken. Foreseeability is a precondition in establishing the standard of care in negligence cases (Glenn, 2010). The necessary calculus must entail that the probability still have occurred even if the care was not take, that the harm was serious, the burden was on the defendant to avert the harm and was there a social utility to avert the risk activity (Davies & Le Gay, 2010).
Duty of care in negligence cases seeks to demonstrate that not only the defendant had a duty to be careful towards a claimant but there was some close relationship to the claimant. The âproximity ruleâ requires foresight especially in statements leading to loss. The three main ingredients need to be proved at once. These are suggest that there was some damage foreseeable to a claimant, there was sufficient proximity and that it was just and equitable to impose such duty. (Vranken, 2010). High Court of Australia in Sutherland Shire Council v Heyma (91985) 60 ALR Brennen J stated that it was preferable, in my view, that the law should have developped novel categories of negligence with established categories (Caparo v Dickman, 1990), rather than by a massive extension of a prima facie duty of care restrained only by indefinable âconsiderations which ought tonegative, or to reduce or limit the scope of the duty or the class of person to whom it is owed’. (Koziol, 2007)
References
“Caparo v Dickman (1990) HL”. Duties Owed to Others. Web.
Charney, R. E., & Hunter, J. (2011). Vancouver (City) v. Ward and the liability for damaged for Charter Infringements. Supreme Court Law Review, p. 393.
Commision, A. L. (2008). Australian Privacy Law and Practice. Sydney: Australian Law Reform Commission.
Davies, M. B., & Le Gay, B. (2010). Torts in Nygh’s Conflict of Laws in Australia (8th ed.). Sydney: LexisNexis.
Glannon, J. W. (2005). The Law of Torts (3rd ed.). New York: Aspen Publishers.
Glenn, H. (2010). Legal Traditions of the World (4th ed.). London: Oxford University Press.
Koziol, H. (2007). Comparative Law – A must in European Union. Journal of Tort Law, 1(3).
Verma, R. (2010). The Law Handbook. Melbourne: Fitzroy Legal Services Inc.
Verma, R. (n. d.). Duty of Care. The Law Handbook. Web.
Vranken, M. (2010). Substantive Law (2nd ed.). London: Federation Press.