What do you call a failure to act where there is a duty that a reasonably prudent person would have fulfilled?

Negligence is a legal theory that must be proved before you can hold a person or company legally responsible for the harm you suffered. Proving negligence is required in most claims from accidents or injuries, such as car accidents or "slip and fall" cases. Negligence claims must prove four things in court: duty, breach, causation, and damages/harm.

Generally speaking, when someone acts in a careless way and causes an injury to another person, under the legal principle of "negligence" the careless person will be legally liable for any resulting harm. This basis for assessing and determining fault is utilized in most disputes involving an accident or injury, during informal settlement talks and up through a trial in a personal injury lawsuit.

Elements of a Negligence Claim

In order to win a negligence case, the plaintiff (the person injured) must prove the following four elements to show that the defendant (the person allegedly at fault) acted negligently:

1. Duty - The defendant owed a legal duty to the plaintiff under the circumstances;
2. Breach  - The defendant breached that legal duty by acting or failing to act in a certain way;
3. Causation  - It was the defendant's actions (or inaction) that actually caused the plaintiff's injury; and
4. Damages - The plaintiff was harmed or injured as a result of the defendant's actions.

Element #1: Duty

When assessing a negligence claim, the first step is to look to see whether or not the defendant owed the plaintiff a legal duty of care. In some circumstances, the relationship between the plaintiff and defendant might create a legal duty -- for instance, a doctor owes a patient a legal duty to provide him or her with competent medical care. Or, the defendant may owe the plaintiff a legal duty to act with reasonable care in a certain situation -- as is the case when one is expected to operate a motor vehicle safely and with a certain level of due care.

Element #2: Breach of Duty

Next, the court will look to see whether the defendant breached this duty by doing (or not doing something) that a "reasonably prudent person" would do under similar circumstances. The term "reasonably prudent person" refers to a legal standard that represents how the average person would responsibly act in a certain situation. Stated simply, the defendant likely will be found negligent if the average person, knowing what the defendant knew at the time, would have known that someone might have been injured as a result of his or her actions -- and would have acted differently than the defendant did in that situation.

Element #3: Causation

The third element requires that the plaintiff show that the defendant's negligence actually caused his or her injury. Sure, someone might be acting negligently, but the plaintiff can only recover if this negligence somehow causes the injury. For example, it wouldn't be fair to sue someone who was negligently texting and driving for a totally unrelated fender bender that happened just across the street -- just because the driver was negligent.

Another aspect of this element looks at whether the defendant could reasonably have foreseen that his or her actions might cause an injury. If the defendant's actions somehow caused the plaintiff injury through a random, unexpected act of nature, the injury would most likely be deemed unforeseeable -- and the defendant will not likely be found liable.

Element #4: Damages

The final element of a negligence case is "damages." This element requires that the court be able to compensate the plaintiff for his or her injury -- usually through monetary compensation for expenses such as medical care or property repair.

Need Help Proving Fault? An Injury Lawyer Can Help

If you or a loved one has been injured due to someone else's negligence, a potential legal claim may be worth pursuing -- especially if you've racked up medical bills and missed work. Consider meeting with an experienced injury law attorney near you to learn more.

In Australia, negligence occurs when a person causes damage to another person through recklessness or carelessness. The negligent behaviour can be a result of either an act, or a failure to act.

Estimated reading time: 8 minutes

What are the elements of negligence?

In an action for negligence, the party who is alleging negligence must prove that:[1]

1. The other party owed them a duty of care;2
2. That duty of care has been breached;3 and
3. As a result of the breach, they have suffered damage.4

Duty of care

A duty of care is the duty that one person owes to another person to avoid causing reasonably foreseeable harm to that person. However, a duty of care is not owed by every person to every other person. There must be a sufficient relationship of proximately or closeness between two people in order for a duty of care to exist.

Common examples of relationships that give rise to a duty of care include:

• solicitor and client5
• doctor and patient6
• director and company7
• road users
• landlord and tenant
• supplier and consumer8
• manufacturer and consumers

Owing a duty of care to someone makes a person responsible for taking reasonable steps to avoid harm being caused to that other person. Negligence only arises in circumstances involving one person owing a duty of care to another; in other words, a defendant cannot be held liable for negligence unless they owed the plaintiff a duty of care.

There is no one single uniform test that exists to assess whether a duty of care exists.9 However, the most commonly cited test to establish whether a duty of care exists is the “neighbour principle”, which was espoused by Lord Atkin in the pivotal case of Donoghue v Stevenson:10

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

Breach of a duty of care

Once it is established that a duty of care was in fact owed by one party to another party, the issue becomes the standard of the duty of care that was owed. In other words – what, specifically, did the duty of care require to be done or not done? The standard to which a duty is owed will depend on the circumstances of each individual case, and the nature of the relationship in question.

Generally, the standard of care to be expected is that of a reasonable, ordinary person. In assessing the specific conduct that fulfils that standard, the court will consider what an ordinary, normal and reasonable person would likely have done in the position of the defendant.

This standard is higher in cases involving allegations of professional negligence. These cases involve relationships where one party owes a duty to another by virtue of their professional qualifications and expertise. For example, a doctor owes a higher standard of care to their patient than an ordinary person would.

If a person has failed to meet the standard of conduct by doing something less than would be expected of either a reasonable person, or a relevant equivalent professional, they will have breached their duty of care.

Causation of damage

It is not enough for a defendant to have simply owed a duty of care to a plaintiff that was breached to establish a cause of action in negligence. In order to successfully allege negligence, the plaintiff must have suffered damage as a direct cause of that breach.

Causation refers to the plaintiff establishing that they would not have sustained the damage “but for” the defendant’s breach. A person cannot be liable for negligence if the damage is too remote from the negligent conduct.

In the case of Amaca Pty Ltd v Ellis [2010] HCA 5, a claim for negligence was brought by the executor of the estate of Paul Cotton, who had died from lung cancer. The allegation was that through the course of his employment, Mr Cotton had been exposed to asbestos, which caused the lung cancer. There was no issue that by exposing Mr Cotton to asbestos, his employer had breached its duty of care. However, Mr Cotton was also a smoker, and the High Court held that Mr Cotton’s lung cancer could have been caused by his smoking. In the absence of proof that the lung cancer was, more probably than not, caused by the exposure to asbestos, there was insufficient causation to establish negligence.

Additionally, the damage incurred must be actual damage, rather than merely the possibility or chance of damage.11

Standard of proof in negligence

The standard of proof in negligence is one the balance of probabilities. This was set out by Justice Gibbs in the case of TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267:

“Of course, as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable interference in favour of what is alleged.”

In order to successfully prove negligence, the plaintiff must prove that there was more than an equal chance that the relevant aspect of the allegedly negligent conduct occurred.

Defences for causes of action in negligence

Defending allegations of negligence usually centres on disputing whether the requisite elements of negligence have been met. For example, a defendant might deny that they owed the plaintiff a duty of care, or that the conduct in which they engaged in was less than the standard owed under that particular duty. Defendants can also deny that there is sufficient causation to establish negligence. This defence is most applicable where there are a series of events caused by different parties, and where it is unclear whether any particular event alone caused the damage (e.g. car accidents involving multiple vehicles).

A defendant may also raise a defence of contributory negligence where the plaintiff’s own conduct caused, at least in part, the damage which they suffered. For example, if a person runs into a pedestrian with their car and injures them, they may allege contributory negligence if the pedestrian was drunkenly walking on the road.

Joint tortfeasors in negligence claims

Where two parties owe a duty of care to a third party which is then breached and which causes damage, the injured party is not obligated to pursue a claim in negligence against both parties. However, one of the two negligent parties can, in that circumstance, bring a third-party claim against the other party as a joint tortfeasor. To the extent that the other negligent party is responsible, the liability for the damages awarded to the plaintiff can be apportioned between the negligent parties.

Remedies available for negligence claims

The goal of the courts in making an order to remedy negligence is to put the injured party in the position they would have been in had the damage not been suffered.

The primary remedy for negligence is compensatory damages and will be in a sum that can be attributed to the damage suffered. Damages are awarded for both economic and non-economic loss.

In cases involving negligence resulting in personal injury, additional damages can be awarded for things such as medical expenses and loss of income. In Queensland, the award for these types of damages is regulated by the Personal Injuries Proceedings Act 2002 (Qld) (PIPA).

Time limitation for negligence claims

If you have suffered loss and damage as a result of negligence, you must act without delay.

Negligence is an action in tort, and as such, section 10 of the Limitation of Actions Act 1974 (Qld) (the Act) imposes a limitation period of six years from when the cause of action arose (i.e., when the damage was suffered).

Where damages are sought for personal injury, section 11 of the Act requires that the claim must be brought within three years from the date on which the action arose. If your claim is one seeking damages for personal injury, there are additional strict time limitations imposed by PIPA, and you should seek legal advice urgently.

If a claim is brought outside the relevant limitation period, it may be statute barred (i.e. you may be unable to bring a legal claim and seek compensation). If you are outside a limitation period, you should contact a lawyer for any exceptions that may apply.

For when you need assistance

Whether you are seeking advice regarding a potential negligence claim, or if somebody has alleged that you have negligently caused them damage, we are here to help.

Contact Gibbs Wright Litigation Lawyers today for a free and confidential initial consultation to discuss your legal rights and options.

References

1. Caffrey v AAI Limited [2019] QSC 7. ↩︎
2. Tame v New South Wales (2002) 211 CLR 317. ↩︎
3. Williams v Milotin (1957) 97 CLR 465; McHale v Watson (1964) 111 CLR 384; Venning v Chin (1974) 10 SASR 299; Lord v Nominal Defendant (1980) 24 SASR 458. ↩︎
4. Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound (No 1)) [1961] AC 388; Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383. ↩︎
5. Badenach v Calvert [2016] HCA 18. ↩︎
6. Rogers v Whitaker (1992) 175 CLR 479; Alexander v Heise [2001] NSWSC 69. ↩︎
7. Australian Securities and Investments Commission v Vines (2003) 182 FLR 405; Australian Securities and Investments Commission v Rich (2003) 174 FLR 128. ↩︎
8. Donoghue v Stevenson [1932] AC 562. ↩︎
9. Grant v Australian Knitting Mills Ltd (Woollen Underwear Case) (1935) 54 CLR 49; Lievre v Gould [1893] 1 QB 491. ↩︎
10. Donoghue v Stevenson [1932] UKHL 100. ↩︎
11. Tabet v Gett [2010] HCA 12. ↩︎