Elements of Negligence

Law of Torts



Negligence- What is it????


Elements of Negligence

For a case of negligence to be successful, The plaintiff must establish three things on the balance of probabilities:

The defendant owed the plaintiff a duty of care

The defendant breached that duty of care

The defendant’s breach caused the plaintiff to suffer harm

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?


1. Duty of Care

A person’s responsibility to exercise reasonable care in their conduct towards their neighbours

Neighbour = any person who is directly affected by your act or omission to act (failure to act)

Neighbour principle

Lord Atkin

(in Donoghue v Stevenson):


“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour… persons who are so closely and directly affected by my act that I ought reasonably have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”.

Duty of Care

In most cases, establishing the existence of a duty of care will be relatively straightforward, provided the relationship between parties falls within established categories of duty of care. For example:

Motorists owe a duty of care to other road users

Doctors owe a duty of care to their patients

Solicitors owe a duty of care to their clients

Employers owe a duty of care to their employees

Manufacturers owe a duty of care to people who use their products

Occupiers owe a duty of care to those who enter their premises


Establishing duty of care: Vulnerability test

To establish vulnerability the court has to determine whether there was a vulnerable relationship (a position of reliance) between the plaintiff and the defendant by asking a series of questions:

Was the defendant in such a position of power (through resources, knowledge, legal duty or right) and knew this?

Was the plaintiff in a position of powerlessness?

If the answer is YES to the above questions, then a vulnerable relationship exists between the plaintiff and the defendant

Example- Doctor and a patient- a patient relies on his/her doctor to manage a medical condition by using low risk treatment


Case example – Rogers v Whitaker (1992) 175 CLR 479

Facts: Maree Whitaker, who had for many years been almost completely blind in her right eye, consulted Dr Christopher Rogers, an ophthalmic surgeon, who advised her that an operation on the eye would not only improve its appearance but would probably restore significant sight to it.Whitaker agreed to the surgery. After the operation there was no improvement to the right eye and Whitaker developed inflammation in the left eye that led to loss of sight in that eye. She sued Rogers in the Supreme Court of NSW for damages for negligence. Judge Campbell J found Rogers liable in that he failed to warn Whitaker that, as a result of the surgery, she might develop a condition known as sympathetic opthalmia in her left eye. He awarded damages of $808,564.38.

Reasoning: A doctor owes a duty to inform his/her patients regarding any side effects that may be caused by proposed treatments


If not???

If the relationship between the parties is not one that falls within the established duties of care, then the plaintiff must show two things:

It was reasonably foreseeable that the defendant’s act or omission could cause harm to someone in the plaintiff’s position, and

That the salient features of the case are consistent with the existence of a duty of care


1st requirement: Reasonable foreseeability

This test examines whether it was reasonably foreseeable to the defendant that the plaintiff or those like the plaintiff might be affected by the defendant’s actions or inactions

If the answer is yes, then a duty of care is established

The plaintiff must prove on the balance of probabilities that they belong to a class of person who would foreseeably be at risk in some way if the defendant failed to take care


Reasonable foreseeability

Essentially, this means that a plaintiff does not have to prove that the defendant actually knew that their act would lead to the exact injury that occurred

The plaintiff must only prove that it was reasonable for the defendant to expect some form of injury to occur following their act



Case examples

Donoghue V Stevenson (1932) AC 562

Was it reasonably foreseeable that Stevenson’s neglect would cause damage to Donoghue?



Case examples- Bourhill v Young [1943] AC 92

Facts: Mr Young had been negligently riding his motorcycle and was responsible for a collision with car in which he himself suffered fatal injuries. At the time of the crash, Mrs Bourhill was in the process of leaving a tram about 50 feet away. She heard the crash and, after Mr Young’s body had been removed from the scene, she approached and witnessed the immediate aftermath. Mrs Bourhill was 8 months pregnant at the time of the incident and later gave birth to a stillborn child. She subsequently brought an action against Mr Young’s estate, claiming she had suffered nervous shock, stress and sustained loss due to the negligence of Mr Young.

Issue: Did Mr Young owe a duty of care to Mrs Bourhill?


Bourhill v Young


Mr Young was not liable for any psychiatric harm that Mrs Bourhill might have suffered as a result of the accident. It was not foreseeable that she would suffer psychiatric harm as a result of Defendant’s negligently causing a loud traffic accident, nor was she sufficiently proximate to the scene of the crash itself. Defendant, therefore, could owe no duty of care to the plaintiff.


Case Examples: Chapman v Hearse

Issue:  Chapman drove his motor vehicle into the back of Emery’s car. Chapman was left lying on the road after the accident. Dr Cherry came upon the scene and left his motor vehicle and began to assist Chapman. While Cherry was treating Chapman a motor vehicle driven by Hearse hit Cherry and killed him.

Issue: was Chapman liable to Dr Cherry?


Case Example: Chapman v Hearse

Yes, IF the events were foreseeable

Held: A person who is negligent may also owe a duty of care to any person who comes to rescue or assist them. It is reasonable that a rescuer be compensated for taking the risk of helping a person who has been negligent and is not punished for taking such a risk by not being compensated for any losses they suffer.


2nd requirement: Salient features of the case

It is not enough to show that it was reasonably foreseeable that the defendant’s conduct was likely to cause harm to the plaintiff.

The plaintiff must also show that the salient features of the case are consistent with the existence of duty of care. This means that the court will consider the relationship between the parties and other features of the case and then compare those features with the salient ( relevant) features of other cases where a duty of care has been found to exist.


Case example: Sullivan v Moody (2001) 207 CLR 562

Facts: The plaintiff was accused by his wife of the sexual abuse of their child. The child was examined by a doctor who reported his suspicions of abuse to the department of community welfare. The department investigates the allegations against the plaintiff and concluded that allegations could not be proved. The plaintiff sued both the doctor and the department that as a result of allegations, he suffered shock, distress & psychiatric harm.

Issue: did the doctor owed a duty of care to the parent of a child patient & does a statutory authority owed a duty of care to an alleged perpetrator of child abuse?


Sullivan V Moody

Result: Court concluded that the plaintiff was not owed a duty of care by either of the parties.

Court took into account of the relevant features in this case:

Conflicting duty of care: If doctor owed a duty of care to the child as well as the parent of the child, there is a conflict of interest

A doctor who suspects that a child is being abused, should not be concerned about the interest of the parents when deciding whether or not to report that case of child abuse


Salient features

Other salient features of the case that may be taken into account by a court includes:

The control defendant has over the situation and the relative vulnerability of the plaintiff

The relative knowledge and experience of the parties

The type of harm suffered by the plaintiff & any relevant moral and ethical questions

The need for people to take personal responsibility for their own actions



Does the relationship between the plaintiff & the defendant fall within one of the established categories of duty of care?


Duty of care established


Was it reasonably foreseeable that the defendant’s conduct could harm the plaintiff?


No duty of care


Are the salient features of the case consistent with the existence of a duty of care?


Duty of care established


No duty of care

Negligent misstatements- leading to pure economic loss

Cases of pure economic loss occur in circumstances where the plaintiff suffers no personal injury or physical damage to their property but does experience a financial loss from the defendant’s negligence. The plaintiff is able to recover compensation of pure economic loss suffered as a result of defendant’s carelessness where the harm was a result of defendant’s negligence advice.

The tort of negligent misstatement is defined as an “inaccurate statement made honestly but carelessly usually in the form of advice given by a party with special skill/knowledge to a party that doesn’t possess this skill or knowledge”


Proving tort of negligent misstatement

Liability will arise if the following is proven:

The advice related to a serious or business matter

The defendant knew or should have known that the plaintiff intended to rely on the advice.

They suffered a loss as a result.

It was reasonable in the circumstances for the plaintiff to rely on the statement.

The defendant may owe a duty of care even if they are not a professional adviser such as a lawyer or accountant.


Case example- Hedley Byrne v Heller

Hedley Byrne were a firm of advertising agents. A customer, Easipower Ltd, put in a large order. Hedley Byrne wanted to check their financial position, and creditworthiness, and subsequently asked their bank, National Provincial Bank, to get a report from Easipower’s bank, Heller & Partners Ltd., who replied in a letter which said that Easipower was,

“considered good for its ordinary business engagements”.

Easipower went into liquidation, and Hedley Byrne lost £17,000 on contracts. Hedley Byrne sued Heller & Partners for negligence, claiming that the information was given negligently and was misleading.


What to do to avoid negligent mis-statements? – an example



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