The Tort of

Negligence and
Defences

Presented by:
Sharmila
Vivekananda

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behaviours-types/
What are our Learning Outcomes today?

• What is a tort?

• What is negligence?
• Real Life Examples of
Negligence.

• What are the elements to

prove negligence?

• What are the defences to

an action for negligence?
There are essential principles we need to remember when
examining tort law:

Tort law is an example of

CIVIL law

The Aim of Tort Law is to

provide compensation:
Place the plaintiff in the
same position as before
the wrong occurred.

The PLAINTIFF bears the

onus of proof on the
balance of probabilities
What is it? Where does it What can it
• A tort is a “civil come from? lead to?
wrong” or the • The word comes • When a party
infringing of a from the French suffers injury as a
party’s civil rights word for result of an
“crooked” infringement of
their civil rights
they may seek a
remedy of
damages through
court
proceedings,
called litigation
 NEGLIGENCE
The most common tort
is negligence

What is Negligence?

When a person/company’s
failure to exercise reasonable
care and skill results in
injury/damage, then a party
may seek legal redress by
suing through the Tort of
Negligence.
 THE TORT OF NEGLIGENCE

Negligence is the There are 4 elements

failure to exercise that must be established
reasonable care and for liability in
skill. negligence
 ELEMENTS TO PROVE NEGLIGENCE

To establish liability for negligence, a plaintiff must prove

the following:

•4 elements:

• A duty of care was owed to the plaintiff (P) by

the defendant (D).

• The duty of care was breached by D.

• P suffered damage as a result of D’s breach.

• The loss suffered by the P is not remote (i.e. it is

reasonably foreseeable).
 Tests for duty of care:
1. Foreseeability:
• Would a reasonable person in the position of the
defendant foresee that their act or omission could
cause harm to the plaintiff? WHO DOES THE
DEFENDANT OWE A DUTY OF CARE TO?
2. Vulnerability & Reliance:
Element 1: • Was the plaintiff in a vulnerable position (of reliance)?

Duty of Care • defendant in a controlling position (Green v

Country Rugby Football League of NSW [2008]
• plaintiff reliant on the defendant: Rogers v
Whitaker [1992]

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 Element 1- Duty of
Care
Established categories where a duty of care is
owed include:

» manufacturers to consumers;
» employers to employees;
» motorists to other road users;
» teachers to their students;
» councils to those who use their facilities;
» occupiers to those who enter their
property;
» professionals to their clients;
» prison authorities to their prisoners; and
» lifesavers to swimmers who swim
between the flags.

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 QUESTION- Whom does a person owe a Duty of
Element 1: Duty Care to?

of care
This question was answered by Lord Atkin in the
case of Donoghue v Stevenson [1932].

‘You must take reasonable care to avoid acts or

omissions which you can reasonably foresee
would be likely to injure your neighbour’
 Element 1: Duty of care
The neighbour principle outlined by Lord Atkins
essentially raises two issues:

• Who in law is my
1 “neighbour”?

• What does reasonably

2 foreseeable mean?
Element 1: Duty of care
Lord Atkin in Donoghue v Stevenson:

A neighbour will be
• people who are in sufficiently
close and direct relations to the
defendant to be affected by
their actions

Reasonably foreseeable
means
• That a reasonable person
would foresee the possibility of
injury occurring as a result of
their actions.
 Donoghue v Stevenson [1932] AC 562

MANUFACTURER
(Stevenson)
Manufactures
ginger beer

Contract 1

Friend of
RETAILER Contract 2 Donoghue DONOGHUE
No (Drinks
(Cafe ) (friend buys
Contract ginger beer)
sells ginger beer ginger beer
for Donoghue)
 Element 2: Breach of Duty

A defendant will breach their duty of care if:

s5B Civil  The risk of harm was probable

The harm could be serious if risk eventuated.
Liability  A reasonable person in that position would have
taken precautions against the risk of harm

Act, The Standard of Care is not satisfied- A

reasonable person in the defendant’s position with
the same skills and experience would have done
2002 things differently.
Social Utility of the Activity
NSW
 Element 2: Breach of Duty
Bolton v Stone[1951] AC 850
• Facts:
– Plaintiff lived on a side street next to a cricket ground. She was at the gate in front of the
house when she was struck on the head by a cricket ball.
– The ball that hit Plaintiff was one of the longest balls that had ever been hit at the grounds
during the last forty years.
– The cricket ground was large enough for all practical purposes. The field was surrounded by
a twelve-foot high fence.
– Witnesses testified that over a thirty-year period about six to ten balls had been hit onto
Plaintiff’s Side Street.
– Plaintiff sued the home cricket club and all of its members. 

• COURT DECISION: NO NEGLIGENCE.

• The risk was not reasonably foreseeable because it happened to rarely – only a few
balls had ever been hit over the fence.
 Element 2- Breach of Duty of Care
McHale v Watson (1966)
115 CLR 199

• 12-year-old Barry Watson was playing with other children, including 9-year-old
Susan McHale, in Portland, Victoria. At the end of a game of chasings, Watson
threw a sharpened six-inch-long piece of welding rod, sharpened on one end to
resemble a spike, at a fencing post, with the intention of trying to make it stick
into the post. The spike glanced off the post and struck McHale in the right eye,
destroying her sight in that eye.
• The decision was based on whether Watson should be assessed on the foresight
that an adult would have in the circumstances. It was held that the standard of
care to be applied was that of a “child of the relevant age”.

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 Element 3: Was the
harm caused by the
breach?

CAUSATION “But for” test

• The injury or loss must • If the cause of the injury is
be caused DIRECTLY by not clear courts will apply
the defendant’s actions the BUT FOR test
• There must be a causal • The question is “would the
connection to make a plaintiff have been injured
claim but for the defendant’s
conduct”?
 Element 3- Causation
Barnett v Chelsea &
Kensington Hospital [1969] 1
QB 428

• Facts:
– Mr Barnett went to hospital complaining of severe stomach pains
and vomiting. He was seen by a nurse who telephoned the
doctor on duty.
– The doctor told her to send him home and contact his GP in the
morning.
– Mr Barnett died five hours later from arsenic poisoning.

– Court Decision: NO NEGLIGENCE

• The hospital was not liable as the doctor's failure to
examine the patient did not cause his death.
Element 4: Remoteness of Harm
Is it appropriate for the scope of the negligent person’s liability to
extend to the harm so caused? (scope of liability)
○ Should the defendant be held responsible for the harm?
○ A major consideration is the remoteness of the damage: The
test is whether a reasonable person could foresee such a
happening: Overseas Tankship (UK) Ltd v Morts Dock &
Engineering Co Ltd, The Wagon Mound (No 1) [1961].
 Defences to an action for Negligence
Assuming that the 4 essential elements of Negligence have been established then
there remains two possible defences to an action for negligence

VOLUNTARY ASSUMPTION OF
RISK
• This defence is available where the
court finds that the plaintiff voluntarily
accepted the risk involved. This is a
COMPLETE defence and will allow the
defendant to avoid all liability.
• Note: Dangerous Recreational Activities
and ‘obvious risk’ in Civil Liability Act
2002 (NSW).
 Defences to an action for Negligence

CONTRIBUTORY NEGLIGENCE

• This defence says that the plaintiff has contributed to

their own injuries. This is usually a partial defence that
will not avoid liability but will reduce the amount of
damages payable by the defendant to the extent that the
court finds that the plaintiff contributed to their
injury/loss.
Some Final
Thoughts….