Law of Negligence Research Essay

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A tort and its definition

A tort has been described as a legal wrong where the innocent party is entitled to compensation. (Harlow, 2005, p. 27). The word "tort" is taken from an old French term that means "wrong." (Lundmark, 1998, p. 1).

Difference between a tort and a crime

The English common law, which contributed to the development of tort law hundreds of years ago, served as the foundation for contemporary Australian law. A criminal and a tort are now very different from one another. A tort is where a person suffers an injury or wrong, for instance personal injuries from an accident, and through the courts the person obtains compensation. On the other hand, a crime is a wrong, which is committed against the society such as murder, or robbery and the courts determine the most appropriate punishment for the person found guilty (Dyson, 2015, p. 366). Examples of torts include defamation, nuisance, negligence, and trespass to land or goods. In this assignment, the tort to be examined is negligence.

Definition of negligence

The tort of negligence is considered a legal action that can be brought by an individual to whom the wrongdoer or the defendant owed a duty to care. Legal liability arises when there is duty to care and the courts determine that there is enough evidence to show a breach of the duty to care causing certain damages. Negligence has been considered or defined as the failure to exercise the required duty of care to ensure that other people are prevented from potential harm (Statsky, 2011, p. 124). In Australia, the negligence of individuals is assessed using the Civil Liability Act 1936 (SA) or the Civil Liability Act 2003 (NSW). Moreover, the liability that the parties found guilty face as a result of being negligent is also assessed using this Act. If an individual sues another because of negligence, the individual often seeks financial compensation for the damages that they incurred. The person seeks to be put in a position in which they were or would have been if the negligent act did not occur. There are three critical elements that a plaintiff must prove for negligence to be determined.

The three critical elements of negligence

First, there must be the duty of care which means that there should be proof that the person had a duty to take reasonable care during the time when the negligent act is alleged to have taken place. The duty of care according to the Australian law is the legal obligation to avoid causing harm and often arises when the harm is reasonably foreseeable. For the duty of care to exist, the relationship of closeness should be sufficient for instance the relationship between other road users and the driver. The duty of care was first determined in the case of Donoghue v Stevenson 1932 AC 562.

The second requirement to proof negligence is the existence of a breach to the duty of care. Thus, if the defendant owed the plaintiff the duty of care, the next critical question is whether the defendant breached the responsibility he or she had. In determining the breach of duty of care, the court should seek to establish the foreseeabity of the risk (Witting, 2007, p. 575). When the risk is high, the defendant should exercise greater effort to avoid it. Moreover, the court should establish to what extent were the defendant's action reasonable. Courts can regard a small risk of harm as reasonably foreseeable as determined in the case of Chapman v Hearse (1961) 106 CLR 112. In addition, at times the court will consider the extent or level of risk such as in the case of Bolton v Stone [1951] AC 850. Importantly to note is that a slight risk of harm can be considered by the courts as reasonably foreseeable as in the case of Wyong Shire Council v Shirt (1980) 146 CLR 40.

The third critical component that the courts uses to establish if there was negligence on the part of the defendant was whether the plaintiff suffered damages and was this a consequence of the breach of duty. The law can and will only make compensation of the damage that occurred. The damage might be loss of physical goods or physical injuries. In some instances, victims or family members who learnt of injuries to the plaintiff later have made claims. In the recent past, courts have determined or recognised mental harm suffered by someone not injured. However, this was not always the case as determined by the High Court in the case of Chester v Waverley Corporation (1939) 62 CLR 1 t where a mother was denied her claim of searching for her lost son and eventually seeing him being pulled from a ditch. The court maintained that this was not foreseeable. Nevertheless, in subsequent cases such as in Jaensch v Coffey (1984) 155 CLR 549 and Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317.

Application of the Law of Negligence to the given scenario

Nonetheless, there are certain circumstances which can prevent the plaintiff from collecting the damages. Often, this is because in some cases, while what caused the injury is obvious, at times it is very complex. This is attributed to the fact that there could be more than one event involved in causing the injury. This is true in the given case scenario of Wesley who was lost. His actions contributed to other events which resulted or caused harm to other people. One instance where it is hard to determine who caused harm is referred to as contributory negligence which is caused by both the defendant and the plaintiff. There is also comparative negligence where the court can allow the plaintiff to collect some of the damages but at a reduced amount similar to their contribution to the injury he or she suffered.

Rights and liabilities of the parties involved in the scenario

Based on this background information, all the parties that were involved in the case scenario provided can be advised as per their rights or liabilities in the law of negligence. The entire events which happened were caused by the actions of none other than Wesley who was lost and found himself in a street that had been blocked off for the freeway to go through. Under the law of negligence, Wesley is liable for his actions having that in the first place he was lost and despite the evasive action not to knock Bob on a motor cycle, a fire was sparked affecting the warehouse building and his truck. As a road driver, Wesley owes other users such as Bob the duty of care. Being lost in the first place lead to these events as he met Bob while driving out of the street which he ought not to have been. On the other hand, for Bob, he has no right and neither is he liable. This is because he suffered no damages from the actions of Wesley.

For Rita who owned a convenience store in the street which had to be closed for three weeks and later only limited access for pedestrians for a further four weeks, she had a right to sue Wesley for what had happened. Nonetheless, the major task for her would be proving that Wesley owed her a duty of care and this had been breached. There is no doubt that she had suffered loss or damages in form of business. For Betty the employee who had to be laid off by Rita because of the significant downturn in profits she has a right under the negligence law but just as her employer the task would be proving in a court that Wesley owed them a duty of care. They must satisfy the court that Wesley's evasive action not to knock Bob and swerve into a telegraph pole which would later cause fire was reasonably foreseeable of causing harm. Betty and Rita should prove that the evasive action by Wesley was unreasonable and amounted to breach of the duty of care. Betty suffered damage in form of discounting the services of Household Sparkle Ltd who cleaned her house.

Consequently, Peta under the law of negligence has a right to sue based on the psychological harm she suffered for witnessing the accident and its aftermath. There is evidence she suffered damages and being a pedestrian, Wesley owed her a duty of care and this had been breached by the evasive action he took. Yvonne, Wesley's girlfriend also has a right to sue Conrad the boss to Wesley because of the anxiety disorder resulting from the news told to her. Yvonne has suffered damages and she should prove that Conrad owed her a duty of care due to the foreseeable nature of the harm. Finally, John has a right under the law of negligence to sue for damages suffered in form of whiplash because of Henry's action where he rear-ended his car because he glanced to the demolition work. Henry is liable to the damages suffered by John having that he owed a duty of care to other road users.


Wyong Shire Council v Shirt (1980) 146 CLR 40

Witting, C. (2007). Tort law, policy and the High Court of Australia. Melb. UL Rev., 31, 569.

The Civil Liability Act 2003 (NSW)

Statsky, W. P.(2011). Essentials of Torts, 1994, St. Paul, MN: West Publishing.

Lundmark, T. (1998). Common law tort & contract. Münster: Lit.

Jaensch v Coffey (1984) 155 CLR 549

Harlow, C. (2005). Understanding tort law. London: Sweet & Maxwell.

Dyson, M. (Ed.). (2015). Comparing Tort and Crime: Learning from Across and Within Legal Systems. Cambridge University Press.

Donoghue v Stevenson 1932 AC 562

Civil Liability Act 1936 (SA)

Chester v Waverley Corporation (1939) 62 CLR 1t

Chapman v Hearse (1961) 106 CLR 112

Bolton v Stone [1951] AC 850

Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317

July 15, 2023

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