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Published: Fri, 02 Feb 2018
Negligence law emanates from the law of tort
Negligence law emanates from the law of tort. In any negligence action, the essential ingredients that should be present are firstly, a duty of care exists wherein there must be a wrongful and unauthorized act or omission by the Defendant and secondly, the act/omission in question affected the interests or rights of others. Lastly, the said acts/omissions caused the injured party or victim to have a right to damages.
Duty of Care
The principal test to determine the existence of the duty of care is to apply the objective test of the neighborhood principle i.e. would a reasonable man who is in the same circumstances as the Defendant foresee that his conduct will adversely affect the Plaintiff? If the answer is affirmative then the Plaintiff owes a duty of care to the Defendant.
Breach of Duty of care
Once a duty is owed the next step is to determine whether the Defendant has breached the said duty of care. A breach would be committed once the Defendant does something that falls beneath the minimum standard of care required of him/her and the minimum standard of care is one of a reasonable man. Therefore, the question to ask would be whether a reasonable man faced with the same circumstances of the Defendant would have acted the same way as the defendant. If the answer is no then the Defendant has breached the duty of care.
In determining the damages the court would enquire as to the chain of causation i.e. is there a link between the breach and the damages suffered by the Plaintiff. In determining this, the courts would apply the but-for test, the causes involved in the said negligent act and whether the Plaintiff had contributed to the said breach of duty of care.
Under section 101 of the Malaysia Evidence Act 1950 the burden of proof for negligence on the Plaintiff and the standard of proof is on balance of probability i.e. that it was more probable than not that the Defendant was negligent. However, in certain cases it would be an uphill task for the Plaintiff to prove everything in detail and in such a case he/she may rely on the maxim Res Ipsa Loquitor i.e. the thing speaks for itself. When this maxim is raised the Defendant does not automatically be liable for negligence, the Defendant still has the right to rebut the maxim by giving evidence that he acted reasonably in the circumstances.
The following are examples of actions in negligence:-
Personal injury, Trespass to person- assault and battery, Medical negligence, Harassment, False imprisonment;
Trespass to land- entering, remaining or placing object and interfering with the airspace of the Plaintiff’s land.
Trespass to goods- direct interference with goods of the Plaintiff.
Others-nuisance, breach of statutory duty, vicarious liability, occupiers liability
What is negligence?
Negligence is doing, or failing to do something that a reasonable person would, or would not, do in a certain situation and which causes another person damage, injury or loss as a result.
In South Australia the Civil Liability Act 1936 is used to assess the negligence of individuals and the liability they face as a result of any negligent acts on their part.
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 negligenc.
How is negligence determined?
Whether or not negligence has occurred is a matter of satisfying four questions.
Did the defendant (i.e. the person being sued) owe the plaintiff (i.e. the person injured) a duty of care?
Did the defendant breach their duty of care?
Did the plaintiff suffer an injury or other damage?
Was the injury or damage caused as a result of the breach of the duty of care?
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. In this case there is a clear connection between the wet floor and the injury suffered (i.e. broken arm).
However, in a lot of 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. In such cases there will be issues about exactly which event 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 (eg 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 e.g. 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.
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