INTRODUCTION TO CIVIL OBLIGATIONS:

NEGLIGENCE

The law regulates private interactions between citizens in society, both planned (contracts) and unplanned (negligence). The law imposes elements for a contract to be valid and for a negligence claim to be successful. Both the common law and statutory protection provide stakeholders with remedies.

QSA Legal Studies Syllabus 2013

NEGLIGENCEContent

In your textbook: pp67-82 Covering topics: Negligence and duty of care Defence to negligence Remedies and the impact of legislation

Negligent situations relating to motor vehicles

Product liability

Week 3 Exercises – questions as indicated 2.3.1 Q2, p70 2.3.2 Q1-2, p72 2.3.3 Q1-3, p72 2.3.4 Q1-2, p73 2.3.5 Q1-2, p74 2.3.7 Q1-3, p76 2.3.8 Q1-2, p78 2.3.9 Q1, p80

Extension: 2.3.1 Q1, p70 2.3.2 Q3, p72 2.3.4 Q3, p73 2.3.6 Q1-3, p75 2.3.8 Q3, p78 2.3.9 Q2-3, p80 2.3.10 Q1-3, p82

NEGLIGENCE When a person fails to take care, and damage or injury results Police/government not involved Unless it is both a civil and criminal matter: some is attacked – criminal (assault), civil (personal injury through trespass or negligence)

Different to agreements as a relationship doesn’t have to previously exist A parent coming to view our school as a place for their child in the future could sue if the school was negligent and had a trip hazard

Landmark case – ‘snail in the bottle’ (see page 68 of text)

NEGLIGENCE AND DUTY OF CARE Someone has to be blamed for an incident Main purposes:1. Compensate victims2. Deterrence

ELEMENTS OF NEGLIGENCEElement 1: a duty of care must exist

Element 2: there must be a breach of that duty of care

Element 3: damage, injury or loss must occur due to the breach of the duty of care

TASK Use pp69-75 to outline and summarise the three elements of negligence in your own words. While doing so, consider the following:Element 1: a duty of care must exist

Element 2: there must be a breach of that duty of care

Element 3: damage, injury or loss must occur due to the breach of the duty of care

1. What happens if no duty of care exists?

2. What is the ‘neighbor principle’ and in which case did it originate?

3. What is considered a ‘reasonable person’?

4. What is the ‘normal’ standard of care?

5. What are three separate requirements of our duty of care to our neighbours, and which case did they come from?

1. What must happen before element two is even considered?

2. Who has the burden of proof?

3. What question will the court ask to decide if a duty of care has been breached?

4. How is the reasonable person test applied?

1. What can break the casual relationship between the defendant and the plaintiff?

2. How does reasonable foreseeability relate to remoteness in this element?

3. What is a ‘nervous shock’ case/

DEFENCES TO NEGLIGENCE Standard of proof is on the balance of probabilities Onus of proof is generally on the plaintiff Defendant has the onus of proof in proving their defence Onus can be reversed by an Act

Two common defences, and a third not so common:1. Volenti non fit injuria (voluntary assumption of risk)2. Contributory negligence3. Ex turpi causa non oritur action (illegality of activity)

VOLENTI NON FIT INJURIA (VOLUNTARY ASSUMPTION OF RISK) Translates as: to one who consents no injury can be done Proving that the plaintiff voluntarily accepted the risk will make the claim fail Even if all three elements have been proved by the plaintiff

Complete defence – no liability on behalf of defendant Complete absolution from payment

Two elements involved – the plaintiff must:1. Know the facts which make up the danger2. Submit freely and willingly to that danger

Civil Liability Act 2003 (Qld) Created law concerning people who take obvious risks and engage in dangerous behaviour

Section 14 Voluntary assumption of risk can be presumed, if the risk is obvious, and therefore volenti can be used by the defendant (even though they haven’t explicitly made the risks known)

The plaintiff would have to prove they were not aware of the ‘obvious’ risk Reversal of onus of proof, plaintiff is now defending themselves

Section 13 Defines ‘obvious risk’ Reasonable person Common knowledge As cases appear before courts they decipher the definition more

s13(5) helps clarify what is not obvious If it arise because of a failure to properly operate, maintain,

replace, prepare or care for something Hidden risks

Section 19 Defendant not liable when an obvious risk of dangerous recreational activity materialises

Section 18 Defines dangerous recreational activity as an activity which is:

“Engaged in for enjoyment, relaxation or leisure that involves a significant degree of risk of physical harm to that person”

Very wide definition – what is classed as ‘enjoyment, relaxation or leisure’? What is a ‘significant degree of risk’?

Section 18 ensure the plaintiff will not be successful because: The risk is obvious If the risk materialises then it has been submitted to freely

CONTRIBUTORY NEGLIGENCE Previously, if the defendant could show that the plaintiff had been slightly careless, then the plaintiff could not recover their loss

Now, the defendant can claim that the plaintiff failed to exercise reasonable care for his/her own protection Law Reform Act 1952 (Qld) made this change

The court can decide what percentage the plaintiff is liable for – apportionment

Contributory negligence is a partial defence – partial liability It will reduce the amount of damages to be paid to the plaintiff, rather than complete absolution from payment

Law Reform Act s10(1) details apportionment Eg. A teenager is running through the aisles of Coles and is speared by a protruding hook.

Based on apportionment, his injury is held to be 70% Coles’ fault and 30% his fault for running down the aisle and dodging other customers (so, rather than, say, $50,000 compensation, he would get $35,000 after the 30% reduction due to his fault in the issue) This is 70:30 apportionment

Prior to the Law Reform Act, the teenager would have got no compensation because he was partly at fault.

Often applies in motor vehicle cases as it is often both parties’ fault

Section 24 of the Civil Liability Act 2003 (Qld) can defeat a claim based on contributory negligence

Apportionment can be portioned as 0:100 if the court deems it just and equitable to do so meaning the plaintiff is fully liable even though the defendant is partly at fault

This keeps the previous stance of the law in action ‘just in case’, but has never been used

If you get in the car with an intoxicated driver, who is liable? Is this contributory negligence? Is it volenti non fit injuria?

Section 48 of the Civil Liability Act (Qld) If the plaintiff: Is over 16 Relies upon the skill and care of the defendant, and Is aware of the intoxication

then the plaintiff is presumed to be contributorily negligent to the extent of at least 25%

Section 48 can be rebutted by showing either:1. The intoxication of the defendant did not contribute to his breach

of duty, or2. The plaintiff could not reasonably be expected to have avoided

relying on the care and skill of the defendant 1. can be difficult to show The definition of intoxication in the Civil Liability Act is very wide It only requires the intoxicated person to have their judgement impaired

2. is also difficult to show The plaintiff needs to show they had no other way of getting where they were going

Usually you can take public transport, another ride or walk

EX TURPI CAUSA NON ORITUR ACTIO (ILLEGALITY OF ACTIVITY) Translates: no right of action arises from a despicable cause

The illegality removes a duty of care between a defendant and a plaintiff where illegal activities make up the negligence

No duty of care = no breach = no damages…no claim can be made

REMEDIES AND THE IMPACT OF LEGISLATION In most cases the remedy is financial compensation Damages are meant to one or more of the following: Represent justice Act as a deterrent Provide financial compensation

The purpose of awarding damages is to: Indemnify the person against the loss, and/or Penalise the person who caused the loss (limited use)

Damages: Can only be claimed once Are to be made in one lump sum

TASK Read: General and special damages (pp79-80) Restrictions on claims (pp80-81) Adequacy of compensation (p81)

Summarise what you have read Ensure you: Note the main points Identify any relevant legislation which impacts the topic Write in your own words, don’t just copy from the textbook

NEGLIGENT SITUATIONS RELATING TO MOTOR VEHICLES Compulsory third party insurance Compensation from situations resulting from The operation of a motor vehicle Action taken to avoid a crash A vehicle running out of control A defect in a vehicle, causing it to run out of control Other incidents in the Motor Accident Insurance Acy 1994 (Qld)

Who pays if: It is a single vehicle accident? Unidentified negligent driver (hit and run)? Uninsured negligent driver?

In these cases there is no one to pass the liability to…who do you think?

PRODUCT LIABILITY Competition and Consumer Act 2010 (Cth) and Sale of Goods Act 1896 (Qld)

Give statutory warranties Cover defective goods which cause harm or injury Warranties regarding: Merchantable quality Fitness for purpose

NEGLIGENCE CONTINUEDContent

In your textbook: pp82-88 Covering topics: Negligence and the workplace Insurance No-fault compensation schemes Duty of care in schools Duty of care in sport

Week 4 Exercises – questions as indicated 2.3.11 Q1-2, p82 2.3.12 Q1, p85 2.3.13 Q1-3, p86 2.3.14 Qa-d, p87

Extension: 2.3.11 Q3, p82 2.3.12 Q2-3, p85 2.3.13 Q4, p86 Chapter Review Q1-7, p88-89

NEGLIGENCE AND THE WORKPLACE Vicarious liability When a superior person is held responsible for a subordinate’s actions, even though the person being held responsible may have done nothing wrong

An individual cannot be sued under vicarious liability, as it is a way of transferring liability

Two elements which make up vicarious liability: Liability for the negligence of another Strict liability – liability without proof of fault

One person can be vicariously liable for the acts of another regardless of how careful the employee was

Employees can also use the Workers’ Compensation and Rehabilitation Act 2003 (Qld)

Allows an injured employee to pursue compensation for work-related injuries

Compensation may be available even if no one was at fault Can also sue the workplace Must prove the three elements of negligence to be successful

Work on the activities for 2.3.11 (Q1-2, Extension: Q3), p82 If you finish that, find relevant and at least semi-recent (preferably Australian) news articles related to negligence: Who are the stakeholders involved? What are their differing perspectives? How does the law try to balance these perspectives? Which legislation applies? What would a fair, just and equitable outcome be? Justify why. Is this what the law would decide, do you think?

INSURANCE Household insurance is most common Second is public liability This is what organisations who deal with the public have as part of normal business practice

Covers payouts relating to activities by the org which lead to injury, damage or death

Covers cost of defending compensation claims Insurance costs have risen a lot Some of this attributed to 9/11 and collapse of large insurance firms

NO-FAULT COMPENSATION SCHEME A person’ injuries are not linked to the fault of another party (ie negligent act) and dealt with through litigation under common law

They are dealt with through legislation This lessens the number of court cases and reduces the cost of litigation

Workers’ Compensation and Rehabilitation Act 2003 (Qld) A worker has to prove they work at the place they were injured and that it is the place where the

injury occurred No need to prove negligence Sets out procedures to follow for entitlement to statutory compensation for time off work, treatment

and rehab Generally, weekly payments until a decision is made and then a lump sum may be paid

Payments based on the legislation and medical advice

How is this different to the common law system? Advantages and disadvantages table on p86 of textbook

DUTY OF CARE IN SCHOOLS Teachers owe a duty of care to students Any time during school hours On excursions or activities

Responsible to protect students from harm/injury and not provide activities which may do so (reasonably foreseeable)

Duty of care can be breached: Inadequate supervision Inadequate instruction to avoid injury/harm

Defences: Contributory negligence Volenti non fit injuria

INTROVIGNE V COMMONWEALTH (1980) &COMMONWEALTH V INTROVIGNE (1982) Read the case on p87 Create a flow chart diagram demonstrating the course of events which took place

DUTY OF CARE IN SPORT Duty of care exists for those who assume a position of responsibility Coaches Referees Those with skills/expertise

More experienced official = more care expected from them Age of participant – very old and very young require more care Level of ability of participants – less experienced = more care needed

Duty of care depends on the circumstances in a particular case