Negligence Law
Introduction
Negligence law is a common law rule that a legal duty exists, under which, each person (or corporation) owes each other person (or corporation) a duty to prevent the incursion of all foreseeable harm. This basic rule is quite literally based on the religious principle of love your neighbour. The common law rule has been used both in situations demanding justice and in situations where the loss and moral duty were of a slight or technical nature.
In each State and Territory of Australia, Parliaments have enacted statutory laws which add to the common law rules. The Federal Government set up a review of the law of negligence with a view to curbing what were seen to be abuses of the rule that created socially undesirable and costly liabilities. Commonly known as the Ipp Review, the panel reported in 2002, resulting in further legislative reform in each State and Territory over the following few years.
This chapter is arranged so as to present the common law rules first. It then follows with a presentation of the major statutory rules from each jurisdiction afterward.
Overview: The Snail in the Bottle
Negligence law came into being in 1932 in a landmark decision by the British House of Lords on a case which has come to be known as “The snail in the bottle.” Correctly, the case was Donoghue v Stevenson. It followed a series of cases in which the negligent or reckless actions of defendants were sued upon, and in which the majority of each court expressed their strong disapproval of the law venturing to make determinations on what most would regard as mere mishaps in day-to-day life. However the minority judgments in these cases, perceiving desirability in a law of negligence, built up a favourable line of reasoning. Finally a brave and apparently indignant Mrs Donoghue went all the way to the House of Lords over a bout of gastroenteritis to get her satisfaction. Her lawyers can be credited with convincing the second highest court in the common law world that the minority judgments of the past were in fact the ones who got it right all along. It is probable that cultural change over several decades had a lot to do with it.
In spite of the tsunami of negligence actions which have followed, very little has been added to the underlying workings of negligence since Donoghue v Stevenson, except as to the scope of the duty of care. Therefore it is worth studying that case in some depth.
Mrs Donoghue was treated by a friend to a ginger beer and ice cream. She was seated at a table in a cafeteria, and ginger beer was poured for her from a sealed, opaque bottle over a bowl of ice cream. She ate the ice cream. The remainder of the ginger beer was then poured into a glass and out came the remains of a dead, decomposing snail. As she had already consumed some of the contents, Mrs Donoghue fell ill. Of importance to the liability of the manufacturer, the bottle had not been opened or contents inspected from the time it left the factory.
The basis of negligence law was specified by Lord Atkin with reference to the Biblical principle, love your neighbour. The court reasoned that the manufacturer had a duty to take care of anyone who would so closely and directly be affected by their actions that they should reasonably have them in contemplation as being so affected. Lord MacMillan stated that the law requires a degree of diligence on the part of the manufacturer so stringent as to amount to a guarantee of safety. The standard of care expected is to be determined by the reasonable man test as to what potential harm is anticipated. The manufacturer, by intending that the products will be consumed, placed itself in a relationship with them and so acquired a duty of care.
Threshold Incapacity
Whether or not harm has occurred is normally going to be easy to prove. Medical diagnoses, repair quotes or bills, photographs, bank statements, debt recovery activity, and independent eyewitnesses tend to give a plain account. When it comes to forms of harm other than physical or psychological, this is sufficient grounds on which to prove that actionable harm has occurred. However, in response to growing difficulties with the permissiveness of the judiciary toward plaintiffs during the 1980’s and 1990’s, major law reform occurred in accord with the so-called Ipp Review. The result was that in the early 2000’s each state and territory amended its tort law legislation.
One of the key recommendations was to eliminate frivolous injury claims by placing a lower limit on the amount of personal harm a person could sue for. Consistent with the medical practice of calculating the amount of incapacity to a percentage, the minimum actionable percentage of post-injury capacity has been set in State and Territory legislation. The minimums range between five percent and 15 percent; in some jurisdictions the minimum for a suit over mental harm is higher than that for physical harm. Evidence from a medical practitioner as an expert witness, therefore, is crucial.
For an investigator, when investigating an insurance claim for personal injury, whether already paid or pending, this enumeration of harm is irrelevant. For the supposedly defrauded insurer, their harm is purely financial, resulting from a contractual obligation. For the insurance claimant, they are not suing for damages at negligence, but for the performance of an insurance contract. Percentage of incapacity therefore does not come into the calculus and need not be enquired into at all in such cases. Percentages of incapacity, as with pain and suffering issues, are relevant when it is the party allegedly at fault, not their insurer, that is being sued. In any case, however, where such is relevant, it will normally be furnished directly to the lawyers by an independent medical examiner who is prepared to appear at court as an expert witness.
Ipp, the Hon David, et al, Review of the Law of Negligence, Final Report, Commonwealth of Australia, 2002.
Donoghue v Stevenson [1932] AC 562.