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1. Negligence &
Insurance
Copyright © 2016 Orren Prunckun. All Rights Reserved.

2. Today’s Menu
1. Review last week.
2. Define negligence.
3. Explain why the law of negligence is important to small businesses and
consumers.
4. Identify the essential elements of negligence.
5. Identify how small businesses can comply with the law of negligence.
6. Identify how small businesses can mitigate the risk of being negligent.
7. Explain duty of care.
8. Explain breach of duty of care.
9. Explain causation and damage.
10. Explain contributory negligence.
11. Explain vicarious liability.
12. Explain the consequences for small business that do not comply with
law of negligence.
13. Explain the remedies available when negligence occurs.
14. Define insurance.
15. Explain why insurance is important to small business.
16. Identify types of risk insurance covers.
17. Review today.

3. Last Week…
1. Define sales and marketing.
2. Explain why sales and marketing is important to
small business.
3. Define Australian consumer law.
4. Explain why Australian consumer law is important to
small business.
5. Explain why Australian consumer law are important
to consumers.
6. Identify the areas of consumer law that exist in
Australia.
7. Explain how small businesses are required to comply
with Australian consumer law.
8. Explain remedies for consumers when small
businesses that do not comply with Australian
consumer law.
9. Explain the process for making consumer complaints
in Australia.
10.Explain the consequences for small business that do
not comply with Australian consumer law.
11.Discuss workplace polices to implement based on
Australian consumer law requirements.

4. Negligence– 2x12 Week Subjects
• LLAW1223 Torts 1
• LLAW2211 Torts 2 [Interviewing]

5. What Is Negligence?
Discuss in small groups and reflect back.

6. Negligence…
• Is a Tort = wrong/wrongful act/head of
liability.
• Tortfeasor/wrong doer = Someone who
does a wrongful act.
• Tort is a civil, not criminal liability.
• Torts are based on common law more so
than legalisation, but legislation does
affect some parts.

7. Negligence…
Negligence is one type of Tort. Others
include:
• Trespass.
• Nuisance.
• Damage to economic interests.
• Negligence (this week).
• Misrepresentation/Defamation
(next week).
• Etc…

8. Negligence…
Person 1 owes Person 2 a…
1. …Duty of care and Person 1…
2. …Breaches that duty of care by doing, or failing
to do something that a reasonable person
would, or would not, do and…
3. …the breach causes Person 2…
4. …damage, injury or loss as a result that is not
too remote.

9. Negligence…
• All 4 elements must be satisfied to be
negligent – if one or more missing not
liable or negligent.
• Case of Donoghue and Stevenson
[1932] UKHL 100 – a legal duty,
breach of the duty, damage was
caused by breach.
• “An obligation owed to anyone whom it
is readably foreseeable would be
injured by the lack of care of that
person.”
• “An obligation to avoid causing harm
and arises where harm is foreseeable
if due fo care not taken.”
• Hughes v Lord Advocate [1963] AC 827

10. Why Is Law Of Negligence
Important To Small Businesses &
Consumers?
Discuss in small groups and reflect back.

11. Why Negligence Is
Important…
• When dealing with customers,
employees, contractors, agents etc.
harm can occur.
• This creates risk for business (Week
5).
• Small business needs to know how
to prevent and deal with the risk of
harm to others particularly to do
with negligence.

12. What Are The Essential Elements Of
Negligence, How Can Small
Businesses Comply With The Law
Of Negligence And Mitigate The
Risk Of Being Negligent?
Discuss in small groups and reflect back.

13. Elements Of Negligence
1. Duty of care.
2. Breach of duty of care.
3. Causation of…
4. …Injury, that is not too remote.

14. 1) Duty Of Care

15. 1) Duty Of Care…
Question is: Did the defendant owe the plaintiff a
duty of care?
• One person generally owes reasonable care to
another.
• Or a class of person.
• Reasonable = sound, fair and sensible.
• Care = concern or interest.
• A question of law not fact – did they have a duty?
• There must be foreseeable and have a relationship
of closeness or proximity between both parties.
• Sutherland Shire Council v Heyman; HCA 4 Jul 1985
• Proximity is closely and directly affected.
• Jaensch v Coffey (1984) CLR 549
• The test for foreseeability is if a zone of danger
was created.

16. Duty Of Care…
• Contemplated danger or risk of harm.
• Foresight of consequence is awareness of a
possible or probably result
• Acts and omissions.
• Cannot pass a duty on to others.
Examples:
• Doctor/patient (Rogers v Whitaker (1992) HCA
58).
• Driver/road users.
• Provide safe work and product environments.
• Could be physical (time and space) causal or
circumstantial.

17. Duty Of Care…
• A duty of care must adhere to a
particular standard of care.
• A standard of care is what a reasonable
person would expect in the same or
similar circumstances:
• Physical characteristics.
• Mental ability.
• Knowledge.
• Professional experience.
• Children.
• Etc…

18. 2) Breach Of Duty

19. 2) Breach Of Duty…
Question is: Did the defendant breach their duty of care to the
plaintiff? Did the act or omission fall below an acceptable
standard of care?
• Negligent or careless conduct, or failure to act of a person
who owes a duty of care to another.
• Reasonable person = lay person in same circumstance or
situation.
• Question of fact not law – did they do it/breach their
duty?
• The failure to avoid risk where reasonable person would
have done so in the same circumstances or amongst the
peer group.
• Identified risk or possibility of harm and take steps to
avoid it.
• Not liable if so small, reasonable person would disregard
it.
• Liable even if remote, but consequence is great or
unjustified production of risk
• Creation of risk is justified, but weigh against harm caused.

20. 2) Breach Of Duty…
Examples:
• Where a driver fails to keep a
lookout and as a result runs into the
car in front of them.
• Where a driver is travelling too
close to the car in front of them and
fails to allow an adequate stopping
distance between their car and the
one in front.

21. 3) Causation Of Injury And 4) Injury

22. 3) Causation Of Injury
And 4)Injury…
Question is: Did the plaintiff suffer an injury or
other damage? Was the injury or damage caused
as a result of the breach of the duty of care?
• Causation = Influence to happen/direct
result.
• Cause and effect, not correlation.
• Correlation is the interdependence of
variable quantities, not one as in causation.
• Clear connection or causation. There may
be more than one event that could have
caused the injury.
• Link between act/omission and damage.
• Not remote, freakish, totally unpredictable
- natural event/act of God.

23. 3) Causation Of Injury
And 4) Injury…
Actual Causation
• “But for” test - But for a person
actions, would the harm
occurred?
• By a hypothetical rational
onlooker.
Substantial Factor Causation
• Many, but 1 main cause.
• Sole cause or substantial cause.

24. 3) Causation Of Injury
And 4)Injury…
Examples
• Where a person slips on a wet floor and
injures their arm, but earlier that morning
they had injured the same arm in a fall from
their bicycle, there will be questions about
whether one event or both caused the injury
and to what extent.
2 Questions
1. Did harm occur?
2. If yes, did the injured party do anything to
mitigate the harm?
• They have a duty to mitigate….

25. What Are Defences To Negligence?
Discuss in small groups and reflect back.

26. “The injured failed to take reasonable
care for their own safety and wellbeing
that contributes to the injuries
suffered.”
March v (E & M) Stramare Pty Ltd
(1991) 171 CLR 506

27. Contributory
Negligence…
• Mitigation – injured person needs to
have taken reasonable steps to limit
their loss.
• Injured person can also contributed to
the harm.
• Both exposed risk to harm.
• Both have partial blame.
• Apportioned damages.
• If both negligent, the party with one last
clear chance (if it exists) to prevent the
accident is liable.

28. Contributory
Negligence…
Examples
• “A slip or fall occurring as a result of the
injured person’s failure to keep a lookout for
their own safety where they could
reasonably have been expected to do so.”
• “Engaging in a high risk activity, such as
diving into water from a pier.”
• “A driver who fails to see an oncoming car
turning right without giving way to them due
to inattention on their part (for example,
they were text messaging on their mobile
phone and not looking at the road).”
• “A passenger or driver who fails to wear a
seat belt.”
• [Civil Liability Act 1936 (SA) s 49].

29. Voluntary Assumption
Of Risk…
• The injured had knowledge of facts
about harm, comprehended the harm
and exposed themselves to the harm.
• Know and assumed the risk by engaging
in behaviour.
• No negligence to those who consent –
voluntary assumption of risk.
• However can’t contract your way out of
negligence.

30. What Is Vicarious Liability?
Discuss in small groups and reflect back.

31. “The liability imposed on one person
for the wrongful act of another based
on a legal relationship.”

32. Vicarious Liability
Example
• Agents.
• Employees.
– Secondary liability/accessory.
– In companies (Week 4) directors are liable.

33. What Are The Consequences For
Small Business That Do Not Comply
With Law Of Negligence?
Discuss in small groups and reflect back.

34. Fault May Be Criminal
Criminal Negligence
• Disregard for life and safety of others as to
amount to a crime against the state.
Gross Negligence
• Conscious and voluntary without intent for injury
but great falling short – merits criminal
punishment.

35. What Remedies Are Available
When Negligence Occurs?
Discuss in small groups and reflect back.

36. Remedies…
Law
• Injured party is entitled to remedy or
compensation for loss.
• Indemnify (compensate) not enrich
(improve).
• Put into position as best can before
harm happened.
• Damages or injunction.
• Monetary/financial compensation.
• Apologies are not admissions of guilt.
Time Limits
• 3 years for personal injury.
• 6 years for economic loss.

37. What Is Insurance?
Discuss in small groups and reflect back.

38. Insurance:
“A company or guarantee of compensation
for specified for harm cause for payment of
a specified premium.”

39. Why Is Insurance Important To
Small Business?
Discuss in small groups and reflect back.

40. Why Insurance Is
Important…
• Protection again foreseeable and
unforeseeable risks.
• Helps manage and mitigate risk
(week 5).

41. What Risk Does Insurance Cover?
Discuss in small groups and reflect back.

43. Practice Question
• Sarah is driving 60km/h in a 60km/h 2 lane (each side) zone.
• Kids are playing on the footpath.
• One kid, Amy, runs into the road to chase a ball.
• Sarah, without looking swerves in to the next lane to miss Amy and
hits a car going in the same direction, driven by Anna.
• Anna lost control, and hits a stobbie pole and is seriously and
permanently injured.
• What are the liabilities of the parties involved?

44. Let’s Review Today…
1. Define negligence.
2. Explain why the law of negligence is important to small
businesses and consumers.
3. Identify the essential elements of negligence.
4. Identify how small businesses can comply with the law of
negligence.
5. Identify how small businesses can mitigate the risk of being
negligent.
6. Explain duty of care.
7. Explain breach of duty of care.
8. Explain causation and damage.
9. Explain contributory negligence.
10. Explain vicarious liability.
11. Explain the consequences for small business that do not
comply with law of negligence.
12. Explain the remedies available when negligence occurs.
13. Define insurance.
14. Explain why insurance is important to small business.
15. Identify types of risk insurance covers.

45. Next Week:
Defamation

46. Don’t understand something?
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47. Homework For Next
Session
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• Be able to answer next Sessions
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• Bring research to next Session to
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3. Download this sessions
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