Determining Liability in Negligence Claims - Essay Example

Determining Liability in Negligence Claims Name of Student Institution Introduction Negligence claims before courts of law are often characterised by difficulties in determining the value to attach to the various factors in consideration. While in the past certain principles and guidelines were applied to establish a duty of care, its extent and the person to whom that duty of care was owed, the law and practice in courts have evolved to require the use of a test of reasonableness to establish this1. Determining what is reasonable according to the standards of the community is the difficulty which faces many courts and legal practitioners2. This essay examines the approach and practice of the courts in Australia in handling the difficulties and uncertainties surrounding application of objective and subjective tests to determine what is and what is not reasonable in any set of circumstances. Determining liability The failure to exercise reasonable care is what the Wrongs Act 1958 (Vic) refers to as negligence. Defining negligence is simple and does not bring about much debate or controversy. What constitutes a negligent act is generally agreed upon3. The conduct of one party must have caused harm to another. The occurrence of the harm must have been reasonably foreseeable, a duty of reasonable care not to cause such harm must have been owed by one person to the other, the person owing the duty must have breached it, and the loss or injury that occurred must have been as a result of this breach. The test of reasonableness is that of the community4. While many aspects to a negligence claim may be settled, agreed upon, certain or simply straight forward, there are issues that raise heated debates and even split decisions of courts. Controversies arise in aspects to do with the existence of a duty of care, its extent, and to whom the duty is owed. Establishing the existence of liability in a negligence claim involves considering various factors as required by law5. These factors may be agreed upon, but the extent to which they are relevant cannot often be agreed upon. Courts are often faced with the question of how much weight or importance to place on a single determinant in coming to a decision. For example, when faced with a claim for personal injury a court may not have a problem identifying the various elements of the tort. The harm caused must have been reasonably foreseeable. However, when deciding what is reasonable under the circumstances of the particular case, disagreements may arise. The bench may not agree on what tests to apply in concluding what is reasonably foreseeable after applying community standards. Circumstances vary with each case, and it is impossible to have a uniform principle to be used in every case. Universal application of one principle of determination would result into absurdities and injustices. As far back as 1932, courts had already realized the need for flexibility in dealing with this problem. The Lordships in “Donoghue”6 when making a decision as to the existence and breach of a duty of care stated that the criterion used must adapt and adjust to changing conditions and situations of life. This was recognition that situations vary and the tests used to come to a conclusion must be appropriate for that particular situation. Not only do situations change, but moral standards also change with time. What may be considered moral or reasonable in one community may be completely different as time goes. Attempts by courts to find unifying principles to be applied universally have been abortive. As a result, courts have in practice, settled on the test of reasonable foreseeability on all the factors in consideration. Some critics have argued that instead of making things easier, it brings confusion and uncertainty in the law and in legal decisions. The courts’ decisions cannot be predicted with precision as application of the test in different situations brings varying results. This argument is countered by contentions that it is the only test that has the potential to cater for all the circumstances that fixed principles would not anticipate. The flexibility of the test ensures that a solution is found for any situation that may arise, and that claimants do not suffer an absurdity or injustice that are associated with fixed principles7. The approach of the courts in applying the test of reasonable foreseeability has been to consider all the elements of the tort together. Judicial opinion and practice has been to consider them together rather than fragmented pieces of the same block8. For example, when considering the question of whether a class of risk was reasonably foreseeable, an additional question of whether it could be reasonable disregarded should also be considered. Other questions that are considered along with this are for example, whether any precautions reasonably need to have been taken to avert the loss, or whether the loss was proximate or remote. It is, therefore, not enough to prove that the harm was foreseeable as this alone does not impute liability. Foreseeability need not be with respect to the person who suffered damage, but to any person belonging to that class9. Courts make varying conclusions after considering all these aspects of foreseeability10. For example, even if the risk is proved to be foreseeable, court will not automatically impute liability. It will enquire into whether the harm was very remote or unlikely to happen. The answer to these questions lead to further enquiries about whether it was necessary to take any precautions to avert harm11. It will also be necessary to determine the cost, inconvenience or difficulty of taking precautions12. The existence of a duty of care is not treated by courts of law as the determining factor. A duty of care may exist, but the issues of its extent arise. The answer to the question whether the duty owed extended to the harm caused is significant to the imputation of liability. In practice, courts go further to enquire whether the duty of care was so wide as to impose an obligation on the defendant to take precautions. This is not always a black or white kind of question and it would be impossible to have a single principle with universal application on all these aspects. When enquiring as to whether the party who owed a duty was under obligation to take measures to prevent the loss, courts delve into issues considered to be salient features to the question such as; control, autonomy, knowledge, autonomy and vulnerability among others13. The test of commercial practicability and cost of taking preventive measures is widely applied by courts in cases of pure economic loss14. When the risk is foreseeable but remote or unlikely to happen and expensive or impractical to prevent, courts are more inclined not to impute liability on a defendant. This was the position taken by the court in the case of “Romeo”15. Courts look at what a reasonable man would have done when faced with such a situation. The harm that would have resulted from precautionary measures in this case prevented the court from imputing liability even if the risk was pretty obvious. The existence of a special relationship between the parties is also put into consideration by courts when deciding whether it is reasonable to expect the defendant to have taken precaution or preventive measures16. The issue of control is salient in such a situation. If means of taking preventive measures were not within the defendant’s power or control, then the existing duty of care may not be stretched to cover the obligation ot take precaution17. However if the defendant had in his control and power, means of preventing the harm, then the duty of care may be stretched to cover the obligation to prevent harm. These applications of the test of foreseeability and reasonableness were used in Modbury18 HCA 61 and Club Italia19. In the former case, the assailants who caused harm were not in the control of the defendant and, therefore, liability could not be imputed. However, this case was distinguished in the latter, because the attackers were under the control of the defendant, who failed to control them and prevent harm to the plaintiff. Conclusion Humans interact at different levels and under different circumstances. Disputes which arise from these interactions do not have a solution that has universal applicability20. Similarly, negligence claims before courts cannot be subjected to universal rules. This would result in absurdities and injustices. This is because what would be considered to be reasonable under a set of conditions may not be so in another set. Courts have resorted to the application of the test of reasonableness in handling negligence claims. This test provides a reasonable solution in any set of facts as it is subjective and adapts to the circumstances of the case. It encompasses all the elements of the tort and does not treat them as separate pieces. When taken as a whole, the elements are weighed and the side which bears more weight takes the day in court. Bibliography Club Italia (Geelong) v Ritchie (2001) 3 VR 447 (p 52 S, O’R & C) Colvin, Eric, ‘Ordinary and Reasonable People: The Design of Objective Tests of Criminal Responsibility’ (2001) 27 Monash University Law Review 197-228. Derrington, Desmond, ‘Theory of Negligence Advanced in the High Court of Australia’, (2004) 78 Australian Law Journal 595-611. Donoghue v Stevenson [1932] AC 562 Gray, Anthony, ‘A Time To Abolish the Rule in Seale V Wallback for Negligence and Nuisance Claims’ (2008) 13 (2) Deakin Law Review 101-130. Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) HCA 61, (p 51 S, O’R & C) Moran, M, Rethinking the Reasonable Person: An Egalitarian Reconstruction of the Objective Standard, Oxford University Press, 2003. Perre v Apand Pty Ltd (1999) 198 CLR 180 Peter Arenella, ‘Convicting the Morally Blameless: Reassessing the Relationship Between Legal and Moral Accountability’ (1991–2) 39 UCLA Law Review 1511 R v Caldwell [1982] AC 341 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 (p. 63 S, O’R & C) Roslyn Kaye, 'The Thin Blue Line of Care' (2010) 84 (1/2) Law Institute Journal 42, 43. Tame v New South Wales (2002) 211 CLR 317. Witting, Christian, ‘Tort Law, Policy and the High Court of Australia’ (2007) 31 Melbourne University Law Review 569-590. Wyong Shire Council v Shirt (1980) 146 CLR 40 Read More