It would be negligent of me to not mention…
So, in the second instalment of the not so weekly weekly reflective entries on Torts B… we have nearly finished the in-depth discussion of what is negligence, when considered from a legal perspective.
Whilst negligence is made up of three major components, it is hard sometimes to not discuss one when you are supposed to be talking about another. This is because the three elements are hierarchical in nature. So when reviewing a problem question, and intending talk about absence of a breach of duty, sometimes you start talking about duty of care instead, as if you can say there is no duty of care then that duty can’t be breached. But I get ahead of my self.
Negligence boils down to three main points. A duty of care – in other words, a duty to do something. For example, a doctor has a duty to tell their patients of all the risks of a procedure that they are considering undergoing. As does a driver to other road users. But does an employer have a duty of care to an employee when the employee is attending a function that they are not required to attend in the course of them employment? Such as a Christmas function?
Next is breach of duty. Sounds pretty straightforward, doesn’t it? If you owed a duty of care to someone, then if you don’t perform that duty, isn’t that a breach? As usual, nothing is quite that clear cut. For example, if you own a go kart track, and owe a duty of care to patrons to protect them from reasonable harm, if you let them go out without a helmet, and they suffer a serious neck or spinal, have you breached your duty of care? You have to stop and consider what precautions the reasonable person in their situation would have taken. How foreseeable was the harm? If the reasonable person would have worn a helmet, and the harm that was suffered was not reasonably foreseeable, then it is unlikely that it would be found that breach as occurred.
The final element is causation. If you have established that a duty of care was owed, and that duty was breached, was the harm caused by that breach? You can see how this becomes a domino effect. At any point, if you establish that one of the earlier elements couldn’t be substantiated, then there is no need to consider the further elements. However, moving on. If you can established that the breach of duty (for instance, the go kart track doesn’t provide helmets, and the harm was reasonably foreseeable). In that case, you would have to prove that the failure was a necessary condition of the harm – i.e. ‘but for’ the provision of a helmet. The burden of providing protection from that harm must be considered also. And again, that level of harm must have been reasonably foreseeable.
When considering the ‘established’ categories where duty of care are owed, this whilst not being easy, is made easier as it is possible to refer to the criteria that the courts have used when determining these issues. What were it gets tricky is the ‘novel’ or outlier situations, where generic tests have to be used to determine whether someone is liable or not.
Whilst I haven’t had any ‘flashes of inspiration’ during this stage of the course, the whole topic of negligence has started becoming clearer, and the process of working through the assessment problem with my assessment partner has certainly made that more engaging, and more likely to be retained. As usual, at this point of the term with assessment due left right and centre, I am doing the bare minimum of readings, but am still enjoying this subject so far 🙂