Sie sind auf Seite 1von 3

Negligence

The legal issue is whether A can successfully sue B for negligence regarding (Bs action). To prove this,4 elements
must be analysed: (1) duty of care (DOC), (2) breach of duty of care, (3) causation and (4) remoteness.
Duty of care
The first element is that whether B owed A a duty of care (DOC) regarding As [Physical Injuries / Negligent
Misstatement].
Physical Injuries
The legal issue is whether B owed A a duty of care (DOC) regarding Physical Injuries.
According to Lord Atkins Neighbour Test, to prove that a Defendant (D) owed DOC to a Plaintiff (P), we must prove
that at the time of Ds careless act, it is reasonably foreseeable (RF) that harm to person like P could result
(Donoghue v. Stevenson [1932] AC 562).
According to Australian recognized categories of DoC relationships:
Manufacturers usually owe a recognized DOC to their customers (Donoghue v. Stevenson [1932]
AC 562, Levi v. Colgate-Palmolive Pty Ltd [1941] 41 SR (NSW) 48)
Drivers usually owe a recognized DOC to other drivers, pedestrians and owner of property near the
road.
Professionals (doctors, lawyers, accountants etc,) usually owe a recognized DOC to their clients
(Hill v. Van Erp [1997] 188 CLR 159)
Owners / Occupiers of property (business) usually owe a recognized DOC to people entering onto
their property (Australian Safeway Stores Pty Ltd. v. Zaluzna [1987] 162 CLR 479, Heaven v. Pender [1883]
11 QBD 503 )
Moreover, in this case, when B carelessly (do sth negligent), it was RF that harm to [position: pedestrian, customers,
patient, etc] such as A could occur , because
Therefore, we can conclude that B owed A a DOC for Physical Injuries.
Negligent Misstatement
The legal issue is whether B owed A a duty of care (DOC) regarding Negligent Misstatement.
In order to prove that a Defendant (D) owed a Plaintiff (P) a DOC for Negligent Misstatement, we must prove 3
elements: (Mutual life and citizens Assurance Co Ltd v. Evatt [1971] AC 793)
The first element is whether the subject of the advice was a business/serious matter. Here, this is dealing with [action]
concerning money (explain), so it is a serious / business matter.
The second element is that whether B should realize that A intends to act on his/her advice. In this case, this element
is satisfied / not satisfied because.
The final element is that whether it is reasonable for A to rely on Bs advice. Here, given the [nature/amount], it is
reasonable / unreasonable for A to rely solely on Bs statement because
As all the analysis above, it is clear that B did (not) owe A a DOC regarding Negligent Misstatement.
Breach of duty of care
The second element is that whether B failed to meet Duty of Care (DOC).
To prove that B has failed to meet DOC, we must to prove that B failed to act as a reasonable, ordinary, careful
person (ROCP) in the same circumstances. Four Romeo factors should be considered (Romeo v Conservation
Commission of the Northern Territory [1998] HCA 5)
The first factor is that the likely seriousness of harm to be or what was the worst thing that could happen (Paris v.
Stepney Borough Council [1951] AC 367). In this case, the harm of the risk was high/low because This factor
tends to show B did (not) act as a ROCP.

The second factor is that how likely was Bs conduct to cause As harm (Bolton v. Stone [1951] AC 850). In this
case, the probability of harm is small / not small that a reasonable person would not have done anything about it
because This factor tends to show B did (not) act as a ROCP.
The third factor is that whether it is cheap or easy to eliminate the risk that caused by Bs negligence (the burden
of taking precautions) (Latimer v. AEC Ltd [1953] AC 643). In this case, the answer is This factor tends to show B
did (not) act as a ROCP.
The final factor is that whether Bs careless act was socially useful (Watt v. Hertfordshire County Council [1954] 1
WLR 835). This factor tends to show B did (not) act as a ROCP.
A ROCP knowing all the serious harm might be caused, large probability of harm, easy and cheap preventive
measures, would have to Compare to what B had done, it is clear that B did (not) do what an ROCP often do in the
same circumstance.
Therefore, B failed to act as a ROCP would have in the same circumstances and he failed to meet the required SOC
toward A.
Causation
The legal issue is whether Bs careless action was the cause of As damage, injuries or losses (DIL).
To prove this, the law dictates that the plaintiff must show their actual DIL and perform the But-for Test to see the
defendants causation (Yates v. Jones National Bank [1990] Aust Torts Reports 81-009).
The plaintiffs DIL includes ...
Consider the But for test: If we could go back in time and take away the defendants action, people like A would not

The final element, whether the plaintiffs DIL are too remote from the incident and should not be taken into account
(Rowe v. McCartney [1976] 2 NSWLR 72). In this case, it was RF at the time of the incident that Bs carelessness
in ... might cause ... to somebody such as the plaintiff A. However, it was not RF that the carelessness of B would
cause the plaintiffs (additional DIL) during his recovering/2 months later/etc.. Therefore B should only be liable for the
plaintiffs (foreseeable DIL), but not the (extra DIL)
Finally, after the 4 elements have been proven, we can conclude that the plaintiff A can successfully sue the defendant
B for negligence and claim compensation for Bs careless action (...), but not the (extra unforeseeable DIL).
Defenses
The final issue is whether B would be able to present defense against As accusation of Bs negligence.
Voluntary assumption of risks: If it can be established that the plaintiff A was fully aware of the risks at the time the
harm was caused and voluntarily assumed those risks. the defendant B will be relieved of all liability (Insurance
Commissioner v. Joyce [1948] 77 CLR 39)
Next, we can consider whether A was also subjected to contributory negligence regarding his/her DIL.
If it can be established that the plaintiff contributed in some way to their own DIL, liability will be apportioned between
the defendant and the plaintiff (Ingram v. Britten [1994] Aust Torts Rep 81-291).
To prove contributory negligence, 2 elements must be analysed:
The first element is that whether A also did something negligent at the time of accident. In this case, A was also
negligent because he/she failed to act as a ROCP would do. A ROCP in this situation would (not)
The second element is that whether the As negligence was one of the reasons why he/she got hurt. In this case,
if A did (not) also act carelessly as discussed above, he/she would not have had
Therefore, A was subjected to contributory negligence and liability will be apportioned between A and B.

After the above analysis, it is clear A can successfully sue B for negligence for everything except for (defense). The
court would award compensation for As DIL, (however, supposing) A is found to be partly at fault (contributed
negligence/voluntary assumption of risk), the court shall decide ...
Vicarious Liability
The legal issue is whether B is vicariously liable for negligence of his/her employee.
An employer is vicariously liable for the negligence of his/her employees ONLY IF the employees negligence
occurred within the scope of the employees employment, which means while the employee was in the process of
doing their official job for the employer (Storey v. Ashton [1869] LR 4 QB 476).
To prove this, these factors must be considered:
At the time the negligence occurred:
was the employee on the clock?(doing the job and during work hour)
was the employee at his place of work or out on an official errand related to his work?
did the employee appear to be in the process of working for the employer (wearing the company
uniform, driving a truck with the company logo on it, etc)?
was that activity a part of his job duty? *(the most important element)
If the above elements exist, then the employer probably is vicarious liable for its employees negligence.
After considering these factors, [employer] is/isnt responsible for [employee]s negligence and A can/cannot
successfully sue [employer].
An employer has a defence to a negligence claim based on vicarious liability where it can be established that the
employee was acting outside the scope of her or his actual or implied authority.