The test of reasonably foreseeability is used to establish our legal neighbours and therefore decide whether the defendant owes a duty of care to the plaintiff. A legal neighbour is one who will be directly affected by another’s behaviour, as shown above in Lord Aitkin’s statement. As a duty of care is owed to our legal neighbours, it can be said that it is reasonably foreseeable that if I don’t take reasonable care, my neighbour will be injured. The court decides what is reasonably foreseeable, based on the circumstances of the case, policy factors and precedent cases.
Those that are more vulnerable to injury also have a duty of care surrounding them. This is known as the eggshell skull principle. It states that if one person is more vulnerable than a normal person, and this person becomes injured, they are entitled to sue for negligence. It is irrelevant that a normal person would not normally have been injured by the defendant’s actions. However, sometimes, even though the test of reasonable foreseeability is successful, an impractical consequence would occur. Too many claims would go to court that society couldn’t afford to continually compensate for. For this reason, a second test, known as the test of proximity was developed. There are three types of proximity; physical – meaning there was an actual nearness in the sense of space between the plaintiff and the defendant, circumstantial – meaning there was an existing prior relationship between the plaintiff and either the defendant or the injured person and causal – meaning how clearly did the defendant’s actions result in the injury of the plaintiff. After considering all these factors, the court will decide whether proximity exists. Not all aspects of proximity have to be satisfied, but satisfying just one does not necessarily the claim will succeed.
The second element of negligence is establishing that the duty of care was breached. A breach of duty of care is when a person hasn’t taken the steps that a reasonable person would in the circumstances. In order to establish this, the court will look at the standard of care expected. The court will compare the actions of the defendant to those of a reasonable person and examine the defendant’s behaviour. Note that a reasonable person is not expected to be perfect or possess superhero type powers, but will take steps to avoid being negligent and if having any special skills or qualifications, is expected to use them.
Additionally, there are some factors the courts take into consideration when deciding whether a duty of care was breached. These include the magnitude of the risk of injury, which states that the higher the risk of injury, the higher the expected standard of care, the seriousness of the possible injury, which states that the more serious the possible injury, the higher the standard of care expected, the characteristics of the plaintiff, which states that the character of the plaintiff may be taken into account, and the standard of care may consequently be raised or lowered, the character of the defendant, which states that the character of the defendant may be taken into account, and the standard of care many consequently be raised or lowered, how beneficial the action was to society, which states that if an act was beneficial to society, for example, a rescue attempt, the standard of care may be lowered, how practical it was to take precautions, which states that depending on how reasonable it would have been for the defendant to take precautions to avoid the injury to the plaintiff, the standard of care may be raised or lowered, the precedent cases, whereby the courts decide if the facts of the situation was similar to those of precedent cases, whether the defendants behaviour is consistent with usual practices, which states that the standard of care may be raised or lowered depending whether the defendants behaviour is the same as what colleagues would have done in the situation, and whether any relevant act of parliament regulated the defendants behaviour, which states that the standard of care expected of the defendant may be raised or lowered by an Act of Parliament.
The third element of negligence is that the plaintiff suffered damages as a result of the defendant’s actions. The plaintiff has to prove that the damage directly resulted from the breach. In order to recover compensation for a negligent act, the third element of damage must be proven. Plaintiffs can suffer different types of damages, including personal injury, physical damage to property, emotional harm or pure economic loss. Damage being a direct result of the breach of duty of care is known as causation. A chain of causation must be present between the breach of duty and the damage resulted. Many things can break the chain of causation, for example, a time lag (three years or more).
To establish whether the chain of causation exists, the ‘but for’ test is often used. Meaning, the damage wouldn’t have been suffered but for the negligent act of the defendant. But, if the damage would have been suffered regardless of the negligent act, the plaintiff will be unable to claim compensation. Indirect consequences of the defendants act makes the defendant liable for the damages, however, if the damage is caused by a negligent act sustained after the incident, the defendant is not liable. For example, if the defendant sideswipes a cyclist, and on the way to hospital is given a HIV infected transfusion, and consequently the cyclist dies, the defendant is not responsible for the death, the transfusion was. The reason for this is because of public policy considerations. Many more cases could be brought to court, which would give unfair results and leave the legal liability being out of proportion for the defendant.
Currently, many more litigation cases are being brought before the courts than ever before. Since 1998, there has been a 25% increase in the number of litigation cases in Australia alone. Civil law has, in a sense, been corrupted. Most Australians would agree that something must be amiss in the legal system, based on evidence from the influx of high profile, baseless litigation cases that are bombarding the legal system.
Laws are put in place to protect our rights, as was the case in Donoghue v Stevenson many years ago. Yet people are trying to abuse the system that supports them. Loopholes are being exploited and it appears that monetary gain is overriding common sense.
Socially, this impacts on everyone in society, even if they are not directly affected by a case. Insurance premiums for one, have gone up phenomenally in recent years, many useful products are withdrawn from the market, services become more expensive and workers lose jobs when companies are damaged by law suits.
Insurance companies have increased their costs and premiums to protect themselves against huge payouts. Australians payed an extra 1 billion dollars in premiums in the first half of 2002. Each household faced approximately a $60 increase from their 2001 levies to their 2002 ones.
Products are now are bombarded with warnings and suggestions to stop litigation cases against the manufacturer. For example, many packaged foods now have to print ‘serving suggestion only’ on the label to ensure that consumers can’t believe that the product contains any more than the food inside.
The spectre of liability frightens insurers from some markets and manufacturers from research and development in some product lines.
The consequence of the bombardment of litigation cases are taking its toll on society and costs every one of us.
Yet, without tort laws, society could not function properly. Citizens need to have rights in the legal system and be able to obtain compensation when others breach their duty of care. Every law is necessary to ensure that society is a fair and just place to live in, where people have to accept the consequences of their actions and where people have the safety of knowing that their rights are protected.
But when these rights are abused is when we see the rapidly climbing quantity of litigation cases littering the courts, as we are now. This is being promoted as the normal behaviour, shown in mass media and in the evolution of plaintiff law firms facilitating the filing of torts claims that suggests or establishes causal links between injuries and product use or exposure,
An equal and fair median has to be reached. Where consumers have rights but where litigation cases are reserved to those with true claims. However, the drawing of a line in the legal sense would be very difficult. Every case is different and to filter out cases, legitimate or not, would undermine the ethos of the system.
To reach a median, action has to be taken before the cases reach court. The ‘no win, no pay’ theory has to be stopped and the media has to discourage baseless suits.
However, it is doubtful that litigation cases will decrease in future years, as society is always going to be driven to ‘win a dollar’. However, precautions can be implemented to ensure that the majority of cases reaching the courts are legitimate and moral. The reputation of our legal system, a system known for its fairness, is at stake.