Skip to 0 minutes and 4 seconds JOANNA KYRIAKIS: The tort of negligence is probably, I think safe to say, the most litigated of the torts in contemporary Australian society. It is basically a tort that protects all of us from injury, from harms and, in particular, harms that are caused through the carelessness of other people. And it invites us all to act with sufficient carefulness in all of our day-to-day activities in order to make sure that we aren’t inadvertently exposing people to risks.
Skip to 0 minutes and 39 seconds NICOLE MOLLARD: So perhaps a little differently to trespass, negligence is not so much concerned with intentionally hitting people or intentionally threatening people or intentionally locking people in sheds, but with making sure that we take sufficient care that we don’t unintentionally cause harm to others.
Skip to 1 minute and 1 second JOANNA KYRIAKIS: It’s quite a complicated tort. There are quite a few different things that have to be proven in order to convince a court that one person’s carelessness is the cause of another person’s injuries.
Skip to 1 minute and 13 seconds NICOLE MOLLARD: So there’s basically five elements that need to be satisfied. And in a nutshell, that’s duty, breach, causation, loss, and making sure that loss or damage is not too remotely connected to the breach.
Skip to 1 minute and 28 seconds JOANNA KYRIAKIS: We start with duty. Duty of care is basically the idea that I can only be legally responsible, in tort law, for an injury you’ve suffered that might be causally connected to me if in the first place, I had a duty in law to be careful of you. So that refers to the range of people that I, when I do a given thing, should be thinking about, should have in my contemplation.
Skip to 1 minute and 57 seconds NICOLE MOLLARD: We ought to take care of our neighbors, which begs a very specific question in law, who our neighbors actually are. And we have preexisting duty relationships where the law has said you must always take care. So road users must always take care to other road users.
Skip to 2 minutes and 19 seconds JOANNA KYRIAKIS: Another example is doctors clearly have a duty to their patients. So they should be taking care in regards to their patients.
Skip to 2 minutes and 27 seconds NICOLE MOLLARD: Yeah. School teaches to the children in their care. A duty relationship exists there.
Skip to 2 minutes and 34 seconds JOANNA KYRIAKIS: The harder cases are those where there aren’t established relationships of care. And that requires the court to go to first principles in deciding whether two people are situated as effectively legal neighbors. The way that they do that is to start off as a preliminary question, asking was it reasonably foreseeable to the person doing the thing, doing the act, that by doing so, they were exposing this particular other individual, or a class of people that individual is a member of, to certain risks of potential harm?
Skip to 3 minutes and 15 seconds NICOLE MOLLARD: If we think about the example of Collin and his friends going camping, what is it that makes Collin have a duty to his friends that he’s camping with? In part, it’s that they’ve together decided they’re going to engage in this adventure. And there’s a whole lot of factors that come into it. One is his decision to be responsible for that. Related to that is the vulnerability of the people have agreed to hand over responsibility to Collin. And now they’re relying upon him.
Skip to 3 minutes and 53 seconds And so when he was deciding where should we go, what precautions need to be taken, what homework to do I need to do, the sorts of people he should have had in his mind to take care of are the other people who were coming camping with him. Because it’s reasonably foreseeable, a reasonable person could, if they stopped to think about it, imagine that they are the people who would be affected by his actions in the where he chose to take the group camping.
Skip to 4 minutes and 25 seconds JOANNA KYRIAKIS: Absolutely.
Skip to 4 minutes and 26 seconds NICOLE MOLLARD: If we’re satisfied that Collin owes a duty of care to his mates that he goes camping with, then the next question is what is the standard of care that he’s meant to achieve? And has he breached that standard of care by falling below it? So the question is where is the bar set? What does a reasonable person do when organizing that kind of camping trip? And the research that Collin’s done to determine where they should stay and whether it’s a good weather day, does that fall below the standard of what a reasonable person would do? Or has he met or, perhaps, even exceeded that standard?
Skip to 5 minutes and 3 seconds If Collin has picked up last week’s newspaper from the rubbish bin near where they’re about to go canoeing and relied on that as being generally what the weather is in the area, we might say that’s less than what we would reasonably expect of a person who is organizing a canoeing trip.
Skip to 5 minutes and 23 seconds JOANNA KYRIAKIS: And furthermore, the law might expect that Collin should go further than simply checking the weather report and should be taking further precautions. So for example, he may be expected to have been very cautious and careful in taking a look and observing the kind of conditions that he was exposing his fellow campers to, taking a look at the environment that he was in and how it appeared to be that day, having plans, perhaps, in place for precautions if it appeared that there were certain risks arising that he hadn’t anticipated.
Skip to 5 minutes and 58 seconds NICOLE MOLLARD: So once we are satisfied that Collin owes a duty of care and he’s breached the appropriate standard of care, the next question is whether he’s actually caused any loss by that breach.
Skip to 6 minutes and 10 seconds JOANNA KYRIAKIS: And here the question is– the starting point for that question is what we call the “but for” test. In other words, we asked the question but for the failures to take care by Collin, would this person have suffered the injuries that they suffered? If we take away the failures to take care, the outcome should be different in our analysis. And the fact that there are other contributing causes necessarily to this outcome, doesn’t free Collin of his responsibility in negligence law. So clearly, for example, the victims couldn’t have been injured if they hadn’t chosen to go out onto the water in the canoes. Having said that, the bottom line is they reasonably relied on Collin.
Skip to 6 minutes and 54 seconds That’s been established by the existence of the duty of care. And it is on the basis of he’s errors that these individuals have been injured. It should be noted, I think though, that it is possible to contribute to your own harm. So there may be a defense that arises of contributory negligence if these are individuals who might, through their own carefulness, have noticed the risks of going out on the water. But it doesn’t negate the fact that causation could be proven here.
Skip to 7 minutes and 22 seconds NICOLE MOLLARD: Loss doesn’t have to be as extreme as death. It could be a physical injury. It can also be damage to property. It can also be a losing money when you rely on someone who’s given bad advice, for example. So there’s a variety of losses that negligence law will compensate for. It is important to note though, that you do have to have some kind of loss in negligence. And we can distinguish that from some of the trespasses that we consider in this conversation.
Skip to 7 minutes and 51 seconds JOANNA KYRIAKIS: The idea is that even when you have a duty that has been breached that has causally brought about a tangible loss, an injury to the victim, the final requirement is that that injury must not be too remote. In other words, it needs to classify as the kind of injury that the person in the first instance could have foreseen might flow from their carelessness. So some sort of a pedigree of loss that is radically different, in kind, to what you would anticipate if you were careless, won’t be compensated under negligence law– might bring about a failure in the tort of negligence. In our scenario, I think there’s no issue on remoteness.
Skip to 8 minutes and 37 seconds NICOLE MOLLARD: No. No.
Skip to 8 minutes and 38 seconds JOANNA KYRIAKIS: The kind of injuries that have been suffered are physical injuries and as you mentioned, possibly property damage. That is precisely the kind of injury that a careful person could have anticipated might come about if they were careless planning this kind of an event.
Skip to 8 minutes and 53 seconds NICOLE MOLLARD: Yes, absolutely.
Case study 2 analysis: Careless Colin
Watch Jo and Nicole explore torts law and negligence with their analysis of the “Careless Colin” case study.
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