What is negligence?
In situations where one person owes another a duty of care, negligence is doing, or failing to do something that a reasonable person would, or would not, do and which causes another person damage, injury or loss as a result.
If a person sues another in negligence, the person is seeking financial compensation for damage. They are seeking to be put in the position they would have been in if the negligence had not occurred. Common situations where negligence may be alleged include car accidents where there is property damage or personal injury, accidents on private or public land, and professional negligence such as medical negligence.
How is negligence determined?
Whether or not negligence has occurred is a matter of satisfying four questions.
All these factors must be satisfied. If even one is not satisfied then the plaintiff will not be able to establish that the defendant was negligent.
What is a duty of care?
A duty of care is a legal obligation to avoid causing harm and arises where harm is ‘reasonably foreseeable’ if care is not taken. There must be a sufficient relationship of closeness (sometimes referred to as ‘proximity’) between the two people in order for a duty of care to exist. An example of such a relationship would be a doctor and patient relationship or the relationship between drivers and other road users.
Under the Civil Liability Act 1936 there are some qualifications on the duty of care such as, for example, 'good Samaritans' and food donors. People acting in an emergency situation without expectation of payment or providing food for a charitable purpose are generally exempt from civil liability, providing they did not act recklessly.
When is a duty of care breached?
In order to establish whether a duty of care has been breached the court will look first of all at the standard of care that is expected in the circumstances.
The standard of care is determined by looking at what a reasonable person would have done (or not done) in the same circumstances. Where a defendant has acted in an unreasonable way or their actions fell well below the standard expected they will be found to have breached their duty of care.
The most common examples are those that apply to everyday activities such as driving. All road users (including pedestrians) are expected to behave according to what is reasonable.
Examples of failure to meet a standard of care:
- where a driver fails to keep a lookout and as a result runs into the car in front of them
- where a driver is travelling too close to the car in front of them and fails to allow an adequate stopping distance between their car and the one in front.
Determining whether a breach of duty of care caused an injury
In some cases it will be obvious what has caused the injury. For example, if a person slips on a wet floor and breaks their arm, then there is a clear connection between the wet floor and the injury suffered (the broken arm).
However, in many cases the cause of an injury may be more complex. There may be more than one event that could have caused the injury. For example, where a person slips on a wet floor and injures their arm, but earlier that morning they had injured the same arm in a fall from their bicycle, there will be questions about whether one event or both caused the injury and to what extent.
Contributory negligence occurs when the injured person themselves is found to have contributed to the cause of their loss or injury. If a plaintiff has failed to take reasonable care for their own safety or loss then they will be found contributorily negligent. The amount of damages they can claim will be reduced according to the extent they are found to have contributed to the loss.
Some examples of contributory negligence are:
- a slip or fall occurring as a result of the injured person’s failure to keep a lookout for their own safety where they could reasonably have been expected to do so
- engaging in a high risk activity, such as diving into water from a pier
- a driver who fails to see an oncoming car turning right without giving way to them due to inattention on their part (for example, they were text messaging on their mobile phone and not looking at the road)
- a passenger or driver who fails to wear a seat belt [Civil Liability Act 1936 s 49].
Vicarious liability occurs where one person is held liable for the negligent actions of another. It is commonly relied upon for negligence on the part of employees carrying out their duties. In most cases the employer will be vicariously liable for the employee’s negligence.
Is a claim worthwhile?
Legal advice is necessary to determine:
- whether there is any legal basis to a claim
- who is the person to be sued
- the chances of success
- the costs involved in going to court, for example legal costs, court fees and specialist reports.
When making a claim for damages arising from personal injury there is a time limit of 3 years - documents must be filed at least 90 days before the time limit expires so in practical terms any application must be made within 2 years and 9 months.
When making a claim for damages arising from property damage or economic loss there is a time limit of 6 years - documents must be filed at least 90 days before the time limit expires so in practical terms any application must be made within 5 years and 9 months.
Under the Civil Liability Act 1936 (SA) an apology made by or on behalf of a person in connection with any matter alleged to have been caused by the person -
- does not constitute an express or implied admission of fault or liability by the person in connection with that matter; and
- is not relevant to the determination of fault or liability in connection with that matter [s 75(1)].
Evidence of an apology is not admissible in any civil proceedings as evidence of the fault or liability of the person in connection with that matter [s 74(2)]. However this does not apply to some civil proceedings (defamation cases and cases excluded by regulation) [s74(3)].
apology means an expression of sympathy or regret, or of a general sense of benevolence or compassion, in connection with any matter, whether or not the apology admits or implies an admission of fault in connection with the matter.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.