[Solution]What is a duty of care?

What is a duty of care? •Our words and actions can have deep and lasting impact on other people Others can suffer injury because of…

What
is a duty of care?

•Our words and actions can have deep and
lasting impact on other people

Others can suffer injury because of your
carelessness •

An important relationship arises between
you and anyone else who could be injured by your actions

In circumstances where you should be able
to predict that someone else could be injured by your actions you owe that
person a duty to refrain from those actions

Recognised
duties of care•

.Authorities –government, police•

Builders –to clients, homeowners

Drivers –to passengers, road users

Manufacturers –to consumers

•Advisers –to those relying on advice

Occupiers –to visitors, tenants

Calculating Risk

.Every action we take carries some degree
of potential risk to ourselves and to others

.Risk can be categorised according to
seriousness: insignificant, low, medium, high, extreme

.Risk can be determined by assessing the
likelihood of occurrence and the seriousness of the consequences

Standard
of Care•

We are expected to take reasonable
precautions to prevent our actions from causing injury to other people•Your
actions will fail to meet the standard of care and breach your duty of care to
your neighbour if the risk of injury was reasonably forseeable, not
insignificant, and you failed to take reasonable precautions: see Civil
Liability Acts

Causation

To be recoverable from the defendant the
losses incurred must actually be caused by the negligent act•We can ask the
question, ‘If the negligent act had never happened would the plaintiff have
suffered a loss?’ •This is called the ‘but for’ test: see Cork v Kirby MacLean

Remoteness

To be recoverable the losses incurred must
actually be caused by the negligent act and not be too remote•This means that
the damage must not only be a direct consequence of the negligent act, but must
have also been reasonably forseeable: see Overseas Tankship (UK) Ltd v The
Miller Steamship Co Pty Ltd•Would it be reasonably forseeable to a ship’s
engineer that furnace oil spilled into the harbour might catch on fire?

Voluntary
Assumption of Risk

We cannot blame or sue others for injuries
sustained where we have understood and accepted the risks involved•Voluntary
assumption of risk is a complete defence to an action in negligence

Contributory
Negligence•

Where a person is also careless regarding their own safety the court
will apportion the negligence between the plaintiff and the defendant and award
damages accordingly: see Imbree v McNeilly•If you cross the road carelessly and
get hit by a car being driven carelessly then your own negligence will have
contributed to your damages

Negligent
Misstatement•

People providing information such as professional advisers and
information officers owe a duty of care to those they advise to avoid making
careless statements that cause harm

Civil
Liability Acts

Claims for personal injuries under the
common law of negligence have now been limited by the Civil Liability Acts•This
legislation promotes personal responsibility•The Civil Liability Acts place a
statutory cap on general damages for claims for personal injury and death
around $400,000-$500,000
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