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© Monash University 2018. CRICOS No. 00008C
In Australian law, the established common law principles of negligence are codified in statute law.
The basic elements of a negligence claim a plaintiff will need to establish against a defendant, are that it:
  • owed the plaintiff a duty of care,
  • breached that duty of care by falling below the expected standard of care, actually caused harm, injury or loss to the plaintiff, and
  • The loss is not too remote from the breach (ie. it flowed naturally from the breach).
Let’s now go into these elements in detail.

Duty of care

A ‘duty of care’ is a common law legal principle. It unites all relationships we can reasonably foresee that our actions, or inactions will affect. It’s an obligation the law imposes on people to take ‘reasonable care’ and to not cause people harm, injury or accident.
In Mrs Donoghue’s case, the maker of the ginger beer should have considered that if it did not take care in bottling its drink, then harm could happen to its customers.
We can apply this principle to many environments we go into everyday. A school has a ‘duty of care’ to its students to make sure its buildings are safe for children, for example.

Standard of care

Once we understand who owes a duty of care by assessing the facts and looking at the risks are responsibilities we all have in a given situation, then we need to decide what is the ‘standard of care’ that is owed to the plaintiff?
The law applies what is called the ‘reasonable person’ test to assess what this ‘reasonable person’ would have done at the time of the injury or accident. This test involves an assessment of the:
  • probability of the harm occurring to the plaintiff,
  • gravity of the harm that could occur to the plaintiff,
  • social utility or benefit of the activity that the defendant was undertaking, and practicality of the defendant taking precautions against the risk causing the injuries.
This test can be adjusted to take into account any special relationships, such as where the defendant is a member of a profession, like a doctor.
Please consider whether your country or state has a statute law for negligence or civil wrongs, as this will contain the guiding tests you will need to apply specific to where you live.
Do you think the common law tests for assessing the calculus of negligence (probability, gravity, social utility, precautions) are an effective method to measure the ‘standard of care’?
Share your views by taking part in the poll.

What you need to do

  1. Respond to the ‘So what?’ poll.
  2. Return to this step, and then within the Comments, share with other learners the reason for your answer.

How did you respond?

If you answered ‘Yes’, explain why you think the common law tests are effective method for measuring the standard of care.
If you answered ‘No’, describe the changes you would make to the tests for assessing the calculus of negligence more effective.

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Review the results of the poll, return to this step and then within the Comments, let other learners know about your thoughts on the outcome.
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© Monash University 2018. CRICOS No. 00008C
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Law for Non-Lawyers: Introduction to Law

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