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.
A child is generally responsible (liable) for the consequences of his or her wrongful acts. However, the degree of reasonable care required of a child depends on the age of the child and the standard of care normally expected of a child of that age.
To some extent the rules applying to children are different from those for adults who commit wrongful acts, especially where a person's state of mind is an essential consideration. A young child may be aware of what he or she is doing, and even know that the action is wrong, but still be incapable of foreseeing its consequences and will therefore not have acted negligently.
For example, in McHale v Watson (1966) 115 CLR 199, a 12 year old boy threw a metal dart at a post but the dart glanced off the post and hit a nine year old girl in the eye. The boy was found not to be negligent because a boy of 12 years could not be expected to foresee that the dart might not stick into the post and could go off at a tangent and hit someone.
The capacity of a child must be considered and decided in each case. Obviously, the closer a child is to adulthood, the more the standard of care will resemble that required of an adult. A child who engages in an adult activity such as driving a car or handling a gun may be expected to meet the standard of care applicable to an adult.
Normally parents are not liable for wrongs committed by their children. However, they may be liable for a wrong committed if:
- the child was acting as their agent;
- the child was acting with the parent's authority; or
- where it is found that a parent has not exercised proper control or supervision over the child.
For example, in McHale v Watson (described above), the boy's father was not found to be liable, even though he had provided the boy with the dart. The court found that it was not negligent to allow a boy of 12 to have the item in question (i.e. a dart) and that the eventual misuse of the dart was not reasonably foreseeable as far as the father was concerned. This result would have been different if the child had been younger or if the father had provided the child with a gun. If a parent knows their child is prone to behave in a way which could endanger others, then the parent may have some degree of liability.
Schools are required to take such measures as are reasonable to prevent physical injury to a pupil. The duty of care owed by a school to a student goes beyond the duty of parents to their children. This duty exists at all times when the child is under the control of the school and even beyond the school grounds in some cases. A school's responsibility is sometimes very great, such as during school excursions. In each case, the likelihood of risk to the students should be assessed and adequate precautions taken. Generally a school would not be liable for an injury to a student as long as there was adequate supervision, the dangers were understood and anticipated and reasonable precautions were taken.
To have a case against a school, an injured student must be able to prove:
- that the school owed a duty of care to the student
- the school committed a breach of that duty by not acting in accordance with standards of a reasonable person in the circumstances
- that the accident was caused by the school's breach of duty
- that, as a result of the incident, the student suffered injury or harm
Supervision must be adequate at all times when a child is under the control of the school, not only during classroom activities but at other times such as before and after school, during breaks, and school excursions.
Schools are not required to have a teacher observe and supervise every incident in the school yard, or even in the classroom. A court would look at the number of students in the area; the foreseeable risk to students; the number of teachers assigned to oversee the activities of those students and their diligence in supervising the area.
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.