Legal studies Introduction Negligence is a failure to take reasonable care to avoid causing injury or loss to another person (Law Hand Book, 2013). Negligence can be used when a party has experienced loss or damage from the wrongful actions or omission to act of another individual. This principal can be found in The Civil Liability Act 2003(Qld).
The following report will examine the tort of negligence While analyzing the case study of Mr. Jones vs Blue Board Production and will provide an evaluation to the tort of negligence. Describing/explaining “The court said to successfully sue in negligence, the plaintiff needed to show three elements which are that the defendant owed the plaintiff a duty of care, the duty of care was breached and that the plaintiff suffered damage as a result” (Herlihy, 2004, p. 278). In order for the plaintiff to receive compensation, he or she must first successfully prove if there was a duty of care owed.
This can be determined by the legal neighbor principal which applies to individuals “who are so closely and directly affected by my act or omission to act that I ought reasonably to have considered them as being affected by my acts or omission to act” (Herlihy, 2004, p. 290). This means “that it is reasonably foreseeable that if I don’t take reasonable care, my neighbor will be injured” this has become known as the reason foreseeably principle and the judge is responsible for determining what a reasonable person or act is depending on the circumstances.
In some negligence cases, the court has found that the test of reasonable foreseeability, when satisfied would lead to very impractical consequences (Herlihy, 2004, p. 290). This is where the proximity test comes into effect as it is used to minimize unnecessary legal action. Proximity involves the notion of nearness or closeness, a nexus or relationship.
And can be embraced as either physical proximity which is in the sense of space and time and occurs between the two parties or their property; causal proximity” in the sense of the closeness or directness between the particular act or course of conduct and the loss and injury sustained (2008 (2000) tort, negligence, duty of care – proximity); also proximity may be circumstantial where a “special relationship may exist between a plaintiff or defendant that would give rise to the degree of closeness so that the actions/inactions of one would normally affect the other, such as between a professional and their clients” (Dosen, 2013, p. 2)
In the case Jones vs blue board, the legal neighbor principal can easily be determined as blue board is the company responsible for hiring Mr. Jones, therefore, Jones would be affected by any actions or omission to act from Blue Board Production s as they are responsible for all their employees. Additionally, blue board ought to have considered Mr. Jones as being affected. Describing/explaining After the first element has been considered and it has been determined that a duty of care is owed, the plaintiff must then determine if the defendant’s conduct breached that duty of care. a breach occurs when the defendant has not taken steps that a reasonable person would have taken in the circumstances in order to prevent pain or harm falling upon the plaintiff” (Herlihy, 2004, p. 291). “in order for the court to be satisfied that a duty of care has been breached, it looks at what standard of care should have been exercised by the defendant in the circumstances of the case” (Herlihy, 2004, p. 293). The standard of care differs from case to case as the courts must determine if the standard of care was high or low in the appropriate circumstance.
The court possesses these questions in order to identify the standard of care: magnitude of the risk of injury, seriousness of the possible, characteristics of the plaintiff, how beneficial the actions was to society, how practical it was to take precautions, precedent cases, whether the defendant’s behavior is consistent with usual behavior, whether there is any relevant act of parliament that regulates the defendant’s behavior. In the following case, the standard of care would be considered high due to the magnitude of risk; how practical it was to take precaution and seriousness of the problem.
After the standard of care has been established, then the court must pose these questions: what would a reasonable person have done in the circumstances? How did the (d) behave? Did the (d) behave in the same way as a reasonable person? In relevance to the case, a reasonable person would have assumed that the memo would be considered important and would have proceeded to inform all hired employees of the risks involved with asbestos. But instead, the defendant took no action in notifying any workers of the potential harms.
The defendant did not behave in the same way as a reasonable person would have and as a result, the defendant breached their DOC of care as Mr. Jones directly suffered from blue boards omissions to act. Once a breach of duty has been satisfied, it is then necessary to prove that the breach directly resulted in damage to the plaintiff. The court then determines if there is a cause and effect connection between the defendant’s negligent act or omission to act and the harm suffered by the plaintiff, this is also known as the chain of causation.
The but for test can be used to prove this and entails that harm would not have occurred to the plaintiff ‘but for the actions of the defendant. “however, the factor of time can come into effect as if something happens between the time of the breach of duty of care and the damage or loss suffered then that intervening act breaks the causal relationship between the defendant and the plaintiff” (Dosen, 2013, p. 74). In the case Jones vs blue board, the chain of causation does exist. This can be seen using the but for test.
As if it wasn’t ‘but for blue board not informing Mr. Jones of the dangers of asbestos then no harm would have fallen upon the defendant. Mr. Jones would not require blue board to provide compensation if blue board had simply informed him of the dangers of asbestos. After all the elements have been satisfied it is then the plaintiff’s responsibility to come up with a defense. By doing so the defendant can decrease or escape any liability. There are three defenses a defendant can use when they are found liable for negligence.
These defenses are contributory negligence, where the plaintiff may have contributed to their own negligence by being careless, this can be used as a partial or complete defense; volenti, where the plaintiff had assumed the risk that caused the injury, though to prove this the defendant must be able to demonstrate “that the plaintiff voluntarily consented the, and accepted that there was a degree of danger in the activity in which they were participating” (Dosen, 2013, p. 77). And the final defense is that of illegality, where damage/injury occurs while doing an illegal act.
Illegality is not so much a defense as it rumors the duty of care and with no duty of care, there cannot be a breach and therefore negligence. In the case, the defendant has no defenses as the plaintiff did not contribute to his own negligence nor did he assume the risks involved with asbestos as he was never informed of any risks thus the defendant would be found completely liable. Remedy The main reason for bringing an action in negligence is to find a remedy for what has happened.
The most common court order made is for the defendant to pay the plaintiff monetary ompensation. The court provides damages in order to represent justice, act as a deterrent and provide financial compensation for the plaintiff for the damage suffered. Evaluation In Australia there is a great need for negligence, as it is intended to protect innocent victims from any loss or suffering they have experienced. The tort of negligence has very concrete guidelines, test and principals in place in order to ensure that 1 outcome is considered fair just and reasonable and isn’t biased to either the plaintiff or defendant.
If the tort of negligence wasn’t in effect the outcome would cause a ripple through as Australia as it would impact the nation on a Social level as people wouldn’t be able to receive the sought after justice, they require and citizens would eventually lose faith in the governing bodies; Economic level as those who have been injured and are unable to work won’t be able to earn an income and thus provide for themselves or their families; Legal level as there wouldn’t be a deterrence to prevent people from committing negligent.
However, the restrictions on damages might be considered unfair, as individuals who may have been severely affected by the negligence of another can only receive up to $50000. Furthermore, the fact that damages cannot be awarded if care is less than six hours a day for less than six months is absurd when taking into consideration the case of Donoghue vs Stevenson, as, time of care is irrelevant in this case.
The case of jones vs Blue Board Production s. Is an interesting case as Mr. jones was not affected by the asbestos immediately instead the effects began to show later in life. Therefore, this case should be considered a precedent for future cases.
