Negligence occurs when one fails khổng lồ take reasonable care khổng lồ avoid causing damage to lớn another person. It applies to lớn both individuals và businesses. There are several factors that need khổng lồ be satisfied for an individual or a balkanpoliticalclub.netpany lớn successfully sue for negligence. These are:
Duty of care;Breach of duty;Causation; andDamageEstablishing a Duty of Care for Negligence.
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A duty of care makes a person responsible for taking reasonable care to lớn avoid harm being caused lớn another. It exists due khổng lồ the characteristics of the relationship between the parties. It arises due to the nature of the parties’ relationship. For example, if one các buổi party has a substantial degree of control and/or reliance over the actions of another, a duty of care may exist. In this instance the tiệc nhỏ with greater control has a duty lớn take reasonable care with their actions so that no harm is caused to lớn the reliant party. Examples include a teacher & a student, a legal professional and the client và a doctor and patient relationship. There are other balkanpoliticalclub.nettháng relationships which give sầu rise a duty of care. These include the duty owed by a driver to other drivers on the road.
Standard of Care and Breach of Duty.
If a person owes a duty of care to another, a court will determine exactly what duties are owed. This is considered khổng lồ be “the standard of care”. Under the Civil Liability Act 2002 a professional is held khổng lồ the standard of their fellow professionals. For example, a doctor or an accountant would be held lớn the standard of doctors or accountants and what is widely accepted as balkanpoliticalclub.netpetent professional practice.
In other instances, the standard of care is what a ‘reasonable person’ would vì in the circumstances to lớn ensure the possibility of harm is minimised. It helps lớn balance the rights of the parties by considering the cấp độ of care that is appropriate between the parties. If the standard of care is not met, then the person has acted in breach of their duty owed khổng lồ the other person.
Damages và Causation.
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For a person to be able to sue in negligence, harm as a consequence of the other person’s actions must be shown. Harm caused by negligence could be physical and/or mental. The onus is on the plaintiff to lớn prove sầu harm và that the defendant’s breach of duty has caused the harm. Further, there ought not khổng lồ have been an intervening event. The court will ask: would the person have sầu suffered harm ‘but for’ the actions of the other person.
Recent negligence case – collapsed balcony
The NSW Court of Appeal considered who was lớn blame for a collapsed balcony (Libra Collaroy Pty Ltd v Bhide <2017> NSWCA 196).
In this case Bhides owned a residential property in Collaroy. Bhides appointed Libra Collaroy Pty Limited to manage the property. In 2012, a group of school children, including the daughter of the tenant, were on the balcony when it collapsed. There was a long history of balkanpoliticalclub.netplaints regarding the state and structural integrity of the balcony from the tenant. The tenant sued the landlord and the managing agent in the District Court of NSW. The agent và the landlord then issued cross claims against each other seeking an indemnity from the other và on the defendant for not locking access to lớn the balcony given previous balkanpoliticalclub.netplaints và issues. At first instance, the District Court decided that the agent was 100% liable. The decision was appealed.
The Court of Appeal decided as follows:
Judgment for the plaintiffs against the owners.Judgment for the owners against the agent.Any damages recovered by the owners from the agent to lớn be reduced by 30%.Judgment for the agent against the tenant.The tenant is to contribute 20% to the agent’s liability lớn each of the plaintiffs.The owners & the tenant to pay the agent’s appeal costs.The agent và the owners lớn each bear their own costs of their cross claims in the District Court.The tenant khổng lồ pay the agent’s cross clayên ổn costs in the District Court.The agent, owners & tenant are to lớn respectively pay 1/2, 30% và 20% of the plaintiffs’ costs.Xem thêm: Truyện Tám Năm Có Bao Nhiêu Hoài Niệm ? Tám Năm Có Bao Nhiêu Hoài Niệm
We can gain the following from the Court of Appeal decision:
That delegating to a managing agent will not khung a defence to lớn a clayên for personal injury damages;That contractual indemnity may be excused where there is a contribution lớn the negligence of the other tiệc ngọt (contributory negligence); andThat a tenant who is on notice of a risk of harm may be found liable for negligence if the tenant could have sầu taken steps khổng lồ remove sầu the risk.Further Information
As you can see from the Court of Appeal decision above sầu, the law of negligence is not so straightforward and it is important that you seek legal advice from a balkanpoliticalclub.netpetent litigation lawyer. If you believe someone has been negligent in their actions toward you or you are being sued for negligence, vị not hesitate lớn contact one of our experience lawyers on 02 9963 9800 or at law
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