Negligence occurs when one party owes another party a duty of care, and fails to take reasonable care to avoid causing damage to that party. It applies to both individuals and businesses. There are several factors that need to be satisfied for an individual or a company to successfully sue for negligence. These are:
- Duty of care;
- Breach of duty;
- Causation; and
Establishing a Duty of Care
A duty of care exists due to the characteristics of the relationship between the parties. Some relationships fall into the ‘established duty category’ – this is a relationship where it is presumed that a duty of care exists. Examples include the relationship between a teacher and pupil, doctor and patient, or employer and employee.
In other instances, a duty of care relationship may exist due to the nature of the relationship between the parties, even if no presumed duty of care exists. For example, if one party has a substantial degree of control and/or reliance over the actions of another, a duty of care may exist. In this instance the party with greater control has a duty to take reasonable care with their actions so that no harm is caused to the reliant party.
Standard of Care and Breach of Duty
If one party owes a duty of care to another, it will be necessary to determine the scope of that duty – to what extent does this duty apply. This is considered to be “the standard of care”. Under the Civil Liability Act 2002 a professional is held to the reasonable standard of their fellow professionals. For example, a doctor or an accountant would be held to the reasonable standard of doctors or accountants and what is widely accepted as competent professional practice within those fields.
In other instances, the standard of care is what a ‘reasonable person’ would do to ensure the possibility of harm is minimized. If the standard of care is not met, then the person has acted in breach of their duty owed to the other person.
Damages and Causation
For a person to be able to sue in negligence, harm as a consequence of the other person’s actions must be shown. Harm caused by negligence could be physical and/or mental. The onus is on the plaintiff to prove harm and that the defendant’s breach of duty has caused the harm. If an intervening event has occurred (i.e. an event that has broken the chain of causation), negligence will not be found. To help determine whether causation is established, the court will consider whether the party would have suffered harm ‘but for’ the actions or omissions of the other party.
Recent negligence case – collapsed balcony
In the recent case of Libra Collaroy Pty Ltd v Bhide  NSWCA 196, the NSW Court of Appeal considered who was to blame for a collapsed balcony.
Bhides owned a residential property in Collaroy, and appointed Libra Collaroy Pty Limited to manage the property. The property was leased out to a tenant. In 2012, a group of school children, including the daughter of the tenant, were on the balcony of the property when it collapsed. There had been a long history of complaints regarding the state and structural integrity of the balcony from the tenant. The tenant sued the landlord (Bhides) and the managing agent (Libra Collaroy Pty Ltd) in the District Court of NSW. Bhides and Libra Collaroy Pty Ltd then issued cross claims against each other seeking indemnity from the other. At first instance, the District Court decided that Libra Collaroy Pty Ltd was 100% liable. The decision was appealed.
The Court of Appeal decided as follows:
- Judgment for the tenant against Bhides
- Judgment for Bhides against Libra Collaroy Pty Ltd.
We can gain the following from the Court of Appeal decision:
- That delegating to a managing agent will not form a defence to a claim for personal injury damages;
- That contractual indemnity may be excused where there is a contribution to the negligence of the other party (contributory negligence); and
- That a tenant who is on notice of a risk of harm may be found liable for negligence if the tenant could have taken steps to remove the risk.
As you can see from the Court of Appeal decision above, the law of negligence is not so straightforward and it is important that you seek legal advice from a competent litigation lawyer. If you believe someone has been negligent in their actions toward you or you are being sued for negligence, do not hesitate to contact one of our experience lawyers on 02 9963 9800 or via our contact form here. For more information, check out our blog here.