The doctrine of unconscionable conduct applies when a party to a transaction is under a special disadvantage and another party knew and took advantage of this special disadvantage.
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In Australia, negligence occurs when a person causes damage to another person through recklessness or carelessness. The negligent behaviour can be a result of either an act, or a failure to act.
What are the elements of negligence?
In an action for negligence, the party who is alleging negligence must prove that:1
- The other party owed them a duty of care;2
- That duty of care has been breached;3 and
- As a result of the breach, they have suffered damage.4
Duty of Care
A duty of care is the duty that one person owes to another person to avoid causing reasonably foreseeable harm to that person. However, a duty of care is not owed by every person to every other person. There must be a sufficient relationship of proximately or closeness between two people in order for a duty of care to exist.
Examples of relationships that give rise to a duty of care include:
- Solicitor and Client5
- Doctor and Patient6
- Director and Company7
- Road users
- Landlord and Tenant
- Supplier and Consumer8
- Manufacturer and Consumer
This list is not exhaustive and merely indicates some common types of relationships where one party will generally owe a duty of care to another.
Owing a duty of care to someone makes a person responsible for taking reasonable steps to avoid harm being caused to that other person. Negligence only arises in circumstances involving one person owing a duty of care to another; in other words, a defendant cannot be held liable for negligence unless they owed the plaintiff a duty of care.
There is no one single uniform test that exists to assess whether a duty of care exists.9 However, the most commonly cited test to establish whether a duty of care exists is the ‘neighbour principle’, which was espoused by Lord Atkin in the pivotal case of Donoghue v Stevenson:10
“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.”
Breach of a Duty of Care
Once it is established that a duty of care was in fact owed by one party to another party, the issue becomes the standard of the duty of care that was owed. In other words – what, specifically, did the duty of care require to be done or not done? The standard to which a duty is owed will depend on the circumstances of each individual case, and the nature of the relationship in question.
Generally, the standard of care to be expected is that of a reasonable, ordinary person. In assessing the specific conduct that fulfils that standard, the Court will consider what an ordinary, normal and reasonable person would likely have done in the position of the defendant.
This standard is higher in cases involving allegations of professional negligence. These cases involve relationships where one party owes a duty to another by virtue of their professional qualifications and expertise. For example, a doctor owes a higher standard of care to their patient than an ordinary person would.
If a person has failed to meet the standard of conduct by doing something less than would be expected of either a reasonable person, or a relevant equivalent professional, they will have breached their duty of care.
Causation of Damage
It is not enough for a defendant to have simply owed a duty of care to a plaintiff that was breached to establish a cause of action in negligence. In order to successfully allege negligence, the plaintiff must have suffered damage as a direct cause of that breach.
Causation refers to the plaintiff establishing that they would not have sustained the damage ‘but for’ the defendant’s breach. A person cannot be liable for negligence if the damage is too remote from the negligent conduct.
In the case of Amaca Pty Ltd v Ellis  HCA 5, a claim for negligence was brought by the executor of the estate of Mr Paul Cotton, who had died from lung cancer. The allegation was that through the course of his employment, Mr Cotton had been exposed to asbestos, which caused the lung cancer. There was no issue that by exposing Mr Cotton to asbestos, his employer had breached its duty of care. However, Mr Cotton was also a smoker, and the High Court held that Mr Cotton’s lung cancer could have been caused by his smoking. In the absence of proof that the lung cancer was, more probably than not, caused by the exposure to asbestos, there was insufficient causation to establish negligence.
Additionally, the damage incurred must be actual damage, rather than merely the possibility or chance of damage.11
Standard of Proof in Negligence
The standard of proof in negligence is one the balance of probabilities. This was set out by Justice Gibbs in the case of TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267:
“Of course, as far as logical consistency foes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable interference in favour of what is alleged”.
In order to successfully prove negligence, the plaintiff must prove that there was more than an equal chance that the relevant aspect of the allegedly negligent conduct occurred.
Defences for Causes of Action in Negligence
Defending allegations of negligence usually centres on disputing whether the requisite elements of negligence have been met. For example, a defendant might deny that they owed the plaintiff a duty of care, or that the conduct in which they engaged in was less than the standard owed under that particular duty. Defendants can also deny that there is sufficient causation to establish negligence. This defence is most applicable where there are a series of events caused by different parties, and where it is unclear whether any particular event alone caused the damage (e.g. car accidents involving multiple vehicles).
A defendant may also raise a defence of contributory negligence where the plaintiff’s own conduct caused, at least in part, the damage which they suffered. For example, if a person runs into a pedestrian with their car and injures them, they may allege contributory negligence if the pedestrian was drunkenly walking on the road.
Joint Tortfeasors in Negligence Claims
Where two parties owe a duty of care to a third party which is then breached and which causes damage, the injured party is not obligated to pursue a claim in negligence against both parties. However, one of the two negligent parties can, in that circumstance, bring a third-party claim against the other party as a joint tortfeasor. To the extent that the other negligent party is responsible, the liability for the damages awarded to the plaintiff can be apportioned between the negligent parties.
Remedies Available for Negligence Claims
The goal of the Courts in making an order to remedy negligence is to put the injured party in the position they would have been in had the damage not been suffered.
The primary remedy for negligence is compensatory damages and will be in a sum that can be attributed to the damage suffered. Damages are awarded for both economic and non-economic loss.
In cases involving negligence resulting in personal injury, additional damages can be awarded for things such as medical expenses and loss of income. In Queensland, the award for these types of damages is regulated by the Personal Injuries Proceedings Act 2002 (Qld) (“PIPA”).
Time Limitation for Negligence Claims
If you have suffered loss and damage as a result of negligence, you must act without delay.
Negligence is an action in tort, and as such, section 10 of the Limitation of Actions Act 1974 (Qld) (“Limitation of Actions Act”) imposes a limitation period of 6 years from when the cause of action arose (i.e., when the damage was suffered).
Where damages are sought for personal injury, section 11 of the Limitation of Actions Act requires that the claim must be brought within 3 years from the date on which the action arose. If your claim is one seeking damages for personal injury, there are additional strict time limitations imposed by PIPA, and you should seek legal advice urgently.
If a claim is brought outside the relevant limitation period, it may be statute barred (i.e. you may be unable to bring a legal claim and seek compensation). If you are outside a limitation period, you should contact a lawyer for any exceptions that may apply.
For when you need Assistance
Whether you are seeking advice regarding a potential negligence claim, or if somebody has alleged that you have negligently caused them damage, we are here to help.
Contact Gibbs Wright Litigation Lawyers today for a free and confidential initial consultation to discuss your legal rights and options.
 Caffrey v AAI Limited  QSC 7.
 Tame v New South Wales (2002) 211 CLR 317.
 Williams v Milotin (1957) 97 CLR 465; McHale v Watson (1964) 111 CLR 384; Venning v Chin (1974) 10 SASR 299; Lord v Nominal Defendant (1980) 24 SASR 458.
 Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound (No 1))  AC 388; Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383.
 Badenach v Calvert  HCA 18.
 Rogers v Whitaker (1992) 175 CLR 479; Alexander v Heise  NSWSC 69.
 Australian Securities and Investments Commission v Vines (2003) 182 FLR 405; Australian Securities and Investments Commission v Rich (2003) 174 FLR 128.
 Donoghue v Stevenson  AC 562.
 Grant v Australian Knitting Mills Ltd (Woollen Underwear Case) (1935) 54 CLR 49; Lievre v Gould  1 QB 491.
 Donoghue v Stevenson  UKHL 100.
 Tabet v Gett  HCA 12
The content of this publication is intended as general commentary only and may not be suitable or applicable to your personal circumstances. It is not intended to replace independent legal advice. You can contact us at our Brisbane Office for a free consultation on a range of litigation matters on (07) 3088 6364.
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