What are the elements of the tort of negligence? The existence of a legal duty t

Question

What are the elements of the tort of negligence? The existence of a legal duty to exercise reasonable care A failure to exercise reasonable care Cause in fact of physical harm by the negligent conduct; Physical harm in the form of actual damages; And proximate cause, a showing that the harm is within the scope of liability. What different types of conduct may give rise to a claim in negligence? To whom is a duty of care owed? What specific relationships may give rise to a duty of care? How many a breach of duty of care occur? Give two examples of conduct that may indicate a breach of duty of care What is foreseeable harm? What test is applied to determine whether the harm is foreseeable? How has s 18 of the ACL widened the scope of professional liability as compared to the position at common law?

Explanation / Answer

1-(A) _

(B)-

2- To whom is a duty of care owed

This Practice Note deals with the three-stage test for establishing a duty of care and how to apply it. For a claimant to succeed in proving their claim in common law negligence they must first prove that a duty of care was owed by the defendant. In deciding whether the defendant owes a duty of care the court adopts a three stage test:

1) Is there a relationship of proximity between the parties?

2) Was the injury to the claimant foreseeable?

3) Is it fair, just and reasonable to impose a duty?

Here is an enormous debate going on in the UK at present with regard to the future of our National Health Service. I have a view, of course, but that’s not what I’m going to discuss here. I’m interested in the fact that the debate is being colored by issues that have arisen whilst it’s been ongoing. In particular, previous reform of our social care provision has resulted in radical transformation of the ownership of care homes for the elderly in the UK. Twenty years ago these were, almost universally, owned by local authorities. Now fewer than 10% are local authority owned and private companies provide the rest, even if local authorities pay a large part of their income.

One of those private providers, Southern Cross, is in deep financial trouble. It operates about 750 care homes and provides homes for about 31,000 old people. However, its core business strategy during a period of private equity ownership during the mid-naughtiest was to realize profit from selling its freeholds. It then leased back properties on increase-only rental agreements. The policy worked at the time: big profits were made, and the company was sold out of private equity ownership with a significant rate of return being generated.

What’s my interest in this issue, apart from genuine concern for the old people whose lives may be affected? Well, in a very real sense it is those old people whose lives are affected by this situation. It now seems very apparent that the Southern Cross business model was built on the basis of short-term vested interests: those of its owners in the mid-naughtiest, and maybe those of its directors since then.

Things have changed since then the Southern Cross. Like all government funded spending in the UK, payment for care homes is being cut. Whilst demand is rising, revenue is falling for private sector providers. Southern Cross, in particular, has found itself with a fixed, and increasing, rental obligation that it cannot meet. It’s only other major cost is labor, and that’s largely fixed too: many of its staff will already be on near minimum wages and due to regulation a minimum number are required to deliver care. The result is that the company is facing substantial difficulties, and even its possible demise.

Usually, an owner or occupant of land who directly or by implication invites or induces others to go upon his or her premises owes to such persons a duty to have the premises in a reasonably safe condition and to give warning of latent or concealed perils. If a person is rightfully on the property of an electricity provider, the person is entitled to protection against negligent or willful injury. Where the company contracts with a stranger for performance of work upon its premises, it must keep its wires so protected and insulated as to be safe for workers whose duties require them to be in their vicinity. Liability for injuries to the employee of an independent contractor may rest upon the principal employer where the premises upon which the work is performed remains under his or her control and the injuries arise out of the dangerous condition thereof. The patrons of the company have the right to presume that they will not be injured in attempting to use that which the company furnishes and that it will do all that human care, vigilance, and foresight can reasonably do consistent with the practical operation of its business to protect them from a dangerous electric current over its wires from any cause. The duty of the company to employees of its customers is a continuing one, and it requires constant oversight and repair. The application of the doctrine has been rejected where the features which constitute the attraction are things for the existence of which a power provider is not responsible. However, liability may result from failure to take the necessary precautions relating to a mechanism used in stringing electric wires in a public street where children are known to congregate, and which is of such a nature as to allure children to play with it.

If there is a conflict of the evidence as to the attractiveness to children of an electrical appliance, the question is one of fact for the jury. In several cases, the maintenance of electric wires is found not to constitute an attractive nuisance, although one maintaining a wire charged with a dangerous current of electricity in a place children are known to frequent should exercise proper precautions to prevent them from coming in contact with it.

Relationship

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A breach of duty occurs when one person or company has a duty of care toward another person or company, but fails to live up to that standard. A person may be liable for negligence in a personal injury case if his breach of duty caused another person's injuries

Court considers probability of risk of injury and if the defendant took reasonable care. Cook v Cook: learner unlicensed driver caused injury to licensed passenger

Mercer v Commissioner for Road Transport and Tramways: Tram driver had a heart attack
and collapsed whilst driving, caused injuries. Commissioner held liable for not installing Dead Man’s Handle.

Examples:

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Serious and foreseeable harm also describes a concept used in negligence (tort) law to limit the liability of a party to those acts carrying a risk of foreseeable harm, meaning a reasonable person would be able to predict or expect the ultimately harmful result of their actions.

Foreseeable: able to anticipate harm.
“How would a reasonable person have responded to the foreseeable risk considering the probability of risk, gravity of harm, cost of eliminating the risk and utility of defendants’ conduct? Did the defendant act reasonably considering above factors?

Foreseeability is the leading test that is used to determine proximate cause. The foreseeability test basically asks whether the person causing the injury should have reasonably foreseen the general consequences that would result because of his or her conduct.

The test for remoteness of damage is that damage must be of a kind which was foreseeable. Once damage is of a kind that is foreseeable the defendant is liable for the full extent of the damage no matter whether the extent of the damage is foreseeable.

He direct consequence test was overruled in the Wagon Mound no 1 and replaced with a new test for deciding if damages are too remote:

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Misleading and deceptive conduct provisions of the ACL and state or territory equivalents extend professional liability well beyond that imposed by the common law.

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