Negligence (1 Viewer)

[Suvat]

Anyone here know how to prove negligence?
Or defend against it?

 

[Minai]

Yeah as asqy said, theres a 2 step process in proving actual negligence, and a further 2 steps to prove liability for that negligent act(s)
1. Show that a duty of care exists
2. Prove that duty of care was breached
3. Show injury/damage occured as result of the negligent act
4. Show damages sufferred aren't too remote from the act (ie, not unlikely)

 

[Lazarus]

In brief, the defences are volenti non fit injuria (the plaintiff voluntarily consented to the risk) and contributory negligence (the plaintiff was at least partially at fault). Vicarious liability (the plaintiff was acting within the course of their employment and hence it is actually their employer who is liable) isn't technically a defence - because it means you were still negligent - but it can be used to shift the blame.

 

[Suvat]

Thanks guys... kinda got me confused though

So if someone goes pheasant shooting, and some guy hits a tree by accident and the bullet ricochet's into someone else's eye, how would the plantiff prove negligence on the shooter's part and what defences are available

 

[inasero]

1. Show that a duty of care exists
2. Prove that duty of care was breached
3. Show injury/damage occured as result of the negligent act
4. Show damages sufferred aren't too remote from the act (ie, not unlikely)

lol would you believe if i said i learned this legal stuff in medicine? yep we have legal and ethics tutes

anyhows, minai if i remember correctly i thought the fourth criterion was that the risk was reasonably forseeable...?

 

[santaslayer]

You mean causation?

 

[Lazarus]

So if someone goes pheasant shooting, and some guy hits a tree by accident and the bullet ricochet's into someone else's eye, how would the plantiff prove negligence on the shooter's part and what defences are available

Keep in mind that this is all very general.

You need to show the following:

1. The shooter owed a duty of care to the injured person (or to the general class of people to which the injured person belonged, e.g. bystanders).
2. The shooter's actions fell below the standard of care of a reasonable shooter, and hence the shooter breached his duty to the injured person (e.g. he might have been fooling around shooting trees just for fun). You would also assess the calculus of negligence at this stage (gravity of the injury, probability of injury, practicability of taking alternatives).
3. A simple appeal to commonsense and experience suggests that the shooter's actions caused the damage.
4. The kind of damage suffered was not too remote (i.e. physical harm was a reasonably foreseeable kind of damage).

Defences:

1. Argue that by attending the scene and watching the pheasant shooting, the plaintiff consented to the risk of being hit by a stray bullet. Probably wouldn't succeed (strict tests).
2. Argue that the plaintiff was standing too close (or some other improper action/omission) and hence that they were contributorily negligent.
3. You can't argue vicarious liability, unless pheasant shooting was being done in the ordinary course of the shooter's employment.

 

[MoonlightSonata]

Wasn't there a case with those facts? I think it failed too (not surprisingly)

 

[inasero]

ohh yes upon revision i discovered-
the negligence must cause PHYSICAL harm...you can't sue a doctor for emotional damages...don't know if it extrapolates to other professions and trades though

 

[Lazarus]

It doesn't have to cause physical harm, if other kinds of harm were foreseeable; e.g. nervous shock resulting from a failed operation. Nervous shock is generally recoverable if the harm can be classified as some kind of psychological disorder (e.g. manic depression).

But damages can't be recovered for mere emotions (the type that might be experienced by any human in the ordinary course of things).

 

[Frigid]

laz, so what think you of CES v Superclinics (1995)?

 

[inasero]

haha frigid...well you and bubz are both horny....put one and one together well whaddaya know!

 

[melsc]

you can also prove contributory negligence...that the plaintiff actually contributed to the act and therefore is partly responsible. Then the damages are decreased by the amount by which the plaintiff was responsible.

 

[melsc]

Also look up
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Ghantons v Hawkesbury City Council (2001) 206 CLR 512
Hope it helps