Negligence occurs when one fails to take reasonable care to avoid causing damage to another person. 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
  • Damage

Establishing a Duty of Care for Negligence.

A duty of care makes a person responsible for taking reasonable care to avoid harm being caused to another. It exists due to the characteristics of the relationship between the parties. It arises due to the nature of the parties’ relationship. 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. Examples include a teacher and a student, a legal professional and the client and a doctor and patient relationship. There are other common relationships which give rise a duty of care. These include the duty owed by a driver to other drivers on the road.

Standard of Care and Breach of Duty.

If a person owes a duty of care to another, a court will determine exactly what duties are owed. This is considered to be “the standard of care”. Under the Civil Liability Act 2002 a professional is held to the standard of their fellow professionals. For example, a doctor or an accountant would be held to the standard of doctors or accountants and what is widely accepted as competent professional practice.

In other instances, the standard of care is what a ‘reasonable person’ would do in the circumstances to ensure the possibility of harm is minimised. It helps to balance the rights of the parties by considering the level of care that is appropriate between the parties. 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. Further, there ought not to have been an intervening event. The court will ask: would the person have suffered harm ‘but for’ the actions of the other person.

Recent negligence case – collapsed balcony

The NSW Court of Appeal considered who was to blame for a collapsed balcony (Libra Collaroy Pty Ltd v Bhide [2017] NSWCA 196).

In this case Bhides owned a residential property in Collaroy. Bhides appointed Libra Collaroy Pty Limited to manage the property. In 2012, a group of school children, including the daughter of the tenant, were on the balcony when it collapsed. There was a long history of complaints regarding the state and structural integrity of the balcony from the tenant. The tenant sued the landlord and the managing agent in the District Court of NSW. The agent and the landlord then issued cross claims against each other seeking an indemnity from the other and on the defendant for not locking access to the balcony given previous complaints and issues. At first instance, the District Court decided that the agent was 100% liable. The decision was appealed.

The Court of Appeal decided as follows:

  • Judgment for the plaintiffs against the owners.
  • Judgment for the owners against the agent.
  • Any damages recovered by the owners from the agent to be reduced by 30%.
  • Judgment for the agent against the tenant.
  • The tenant is to contribute 20% to the agent’s liability to each of the plaintiffs.
  • The owners and the tenant to pay the agent’s appeal costs.
  • The agent and the owners to each bear their own costs of their cross claims in the District Court.
  • The tenant to pay the agent’s cross claim costs in the District Court.
  • The agent, owners and tenant are to respectively pay 50%, 30% and 20% of the plaintiffs’ costs.

We can gain the following from the Court of Appeal decision:

  1. That delegating to a managing agent will not form a defence to a claim for personal injury damages;
  2. That contractual indemnity may be excused where there is a contribution to the negligence of the other party (contributory negligence); and
  3. 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.

Further Information

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 at law@etheringtons.com.au.  For more information, check out our blog here.