LAW REPORT
Negligence Law: An Overview
Ingrid Pagura | BA, LIB
In most states and territories in Australia today a Civil Liability Act, or Wrongs Act, governs negligence claims, though it was originally established in common law when Lord Atkin, nearly 100 years ago, stated:
‘ You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.’( Donoghue v Stevenson)
In essence, the idea behind negligence is that a person must exercise‘ reasonable care and skill’ while conducting their duty of care obligations. The aim of negligence law is to compensate for personal injury caused by lack of care and skill.
Despite now being enshrined in legislation, the principle is the same, as is the way it is proven. So, let’ s look at each in turn. It is also important to note that it is the plaintiff( the person who has been injured) who must prove this, and not the defendant( the health professional, for example) who must disprove it.
Duty of care
A plaintiff must first prove that‘ a duty of care existed between the plaintiff and the negligent party’. A duty of care is a legal duty to take reasonable care and usually depends on the relationship between the parties. In the words of Lord Atkin, it is your‘ neighbour’ or‘ persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected’. This has always been taken to mean that there is a relationship between the plaintiff and the defendant where the actions, or lack of them, of the defendant will affect the plaintiff.
So, who owes a duty to whom? The answer is, doctors to patients, and health care professionals to clients. There are many more but for our field these are the most common. The idea comes from a concept that if a patient / client comes to see a health care professional, they are assuming that the professional will act with skill and care, and within their scope of practice, and that they will avoid causing reasonably foreseeable harm to them.
Remember though, you don’ t owe a duty of care to everyone you encounter, as there must be a sufficient relationship of proximateness or closeness between people for a duty of care to exist.
Generally, though, there will always be a duty of care between a health care professional and their patient / client.
Breach
Once a plaintiff has established that a duty of care was owed to them by the defendant, they will need to show that the defendant breached that duty of care. In other words,‘ What, specifically, did the duty of care require to be done or not done?’
Decisions on whether a‘ breach’ has occurred will centre on what is considered‘ reasonable’. This means that a person is not necessarily expected to protect everyone from all harm, but that a person must act, under the circumstances, as a reasonable person would.
So, in other words, the patient / client needs to prove that the health care professional was at fault and did not act in a reasonable way. This involves their proving that there was a risk of harm, that it was foreseeable and that a reasonable person in the same circumstances would not have acted in the same way.
This is what we call the Standard of Care, and we judge the defendant against what a reasonable person with the same skills, knowledge and experience would have done in the same circumstances.
96 | vol31 | no2 | JATMS