Negligence occurs when one fails khổng lồ take reasonable care to lớn avoid causing damage to another person. It applies to lớn both individuals và businesses. There are several factors that need khổng lồ be satisfied for an individual or a giamcanherbalthin.company to successfully sue for negligence. These are:Duty of care;Breach of duty;Causation; andDamage
Establishing a Duty of Care for Negligence.
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A duty of care makes a person responsible for taking reasonable care to avoid harm being caused lớn another. It exists due to the characteristics of the relationship between the parties. It arises due lớn the nature of the parties’ relationship. For example, if one buổi tiệc nhỏ has a substantial degree of control and/or reliance over the actions of another, a duty of care may exist. In this instance the party with greater control has a duty to take reasonable care with their actions so that no harm is caused lớn the reliant buổi tiệc ngọt. Examples include a teacher and a student, a legal professional & the client và a doctor và patient relationship. There are other giamcanherbalthin.comtháng relationships which give sầu rise a duty of care. These include the duty owed by a driver to other drivers on the road.
Standard of Care & Breach of Duty.
If a person owes a duty of care to lớn another, a court will determine exactly what duties are owed. This is considered khổng lồ be “the standard of care”. Under the Civil Liability Act 2002 a professional is held khổng lồ the standard of their fellow professionals. For example, a doctor or an accountant would be held to the standard of doctors or accountants và what is widely accepted as giamcanherbalthin.competent professional practice.
In other instances, the standard of care is what a ‘reasonable person’ would vị in the circumstances khổng lồ ensure the possibility of harm is minimised. It helps to balance the rights of the parties by considering the level of care that is appropriate between the parties. If the standard of care is not met, then the person has acted in breach of their duty owed to lớn the other person.
Damages and Causation.
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For a person lớn be able khổng lồ sue in negligence, harm as a consequence of the other person’s actions must be shown. Harm caused by negligence could be physical and/or mental. The onus is on the plaintiff to lớn prove harm & that the defendant’s breach of duty has caused the harm. Further, there ought not to have been an intervening event. The court will ask: would the person have sầu suffered harm ‘but for’ the actions of the other person.
Recent negligence case – collapsed balcony
The NSW Court of Appeal considered who was lớn blame for a collapsed balcony (Libra Collaroy Pty Ltd v Bhide <2017> NSWCA 196).
In this case Bhides owned a residential property in Collaroy. Bhides appointed Libra Collaroy Pty Limited lớn manage the property. In 2012, a group of school children, including the daughter of the tenant, were on the balcony when it collapsed. There was a long history of giamcanherbalthin.complaints regarding the state & structural integrity of the balcony from the tenant. The tenant sued the landlord và the managing agent in the District Court of NSW. The agent and the landlord then issued cross claims against each other seeking an indemnity from the other và on the defendant for not locking access to the balcony given previous giamcanherbalthin.complaints và issues. At first instance, the District Court decided that the agent was 100% liable. The decision was appealed.
The Court of Appeal decided as follows:Judgment for the plaintiffs against the owners.Judgment for the owners against the agent.Any damages recovered by the owners from the agent to be reduced by 30%.Judgment for the agent against the tenant.The tenant is lớn contribute 20% to the agent’s liability lớn each of the plaintiffs.The owners and the tenant to pay the agent’s appeal costs.The agent and the owners to lớn each bear their own costs of their cross claims in the District Court.The tenant to pay the agent’s cross clayên ổn costs in the District Court.The agent, owners and tenant are to lớn respectively pay một nửa, 30% and 20% of the plaintiffs’ costs.
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We can gain the following from the Court of Appeal decision:That delegating to lớn a managing agent will not khung a defence khổng lồ a clayên for personal injury damages;That contractual indemnity may be excused where there is a contribution to lớn the negligence of the other các buổi tiệc nhỏ (contributory negligence); andThat a tenant who is on notice of a risk of harm may be found liable for negligence if the tenant could have taken steps to lớn remove the risk.
As you can see from the Court of Appeal decision above, the law of negligence is not so straightforward and it is important that you seek legal advice from a giamcanherbalthin.competent litigation lawyer. If you believe sầu someone has been negligent in their actions toward you or you are being sued for negligence, vì not hesitate khổng lồ contact one of our experience lawyers on 02 9963 9800 or at law