🧭 Overview
🧠 One-sentence thesis
Negligence is a fault-based tort requiring plaintiffs to prove that a defendant owed them a duty of care, breached that duty through unreasonable conduct, and caused actual harm, while defendants may reduce or eliminate liability by establishing defences such as contributory negligence or voluntary assumption of risk.
📌 Key points (3–5)
- Three essential elements: Plaintiff must establish (1) duty of care owed by defendant, (2) breach of that duty, and (3) actual damage caused by the breach—all on the balance of probabilities.
- Reasonable person standard: Conduct is judged objectively against what a reasonable person would have done in similar circumstances, not by the defendant's subjective intentions or inexperience.
- Foreseeability is central: A duty of care arises when harm to the plaintiff was reasonably foreseeable, not far-fetched or fanciful, and the defendant was in a position to prevent it.
- Common confusion—duty vs breach: Duty asks "did the defendant owe care?" (a legal question for the judge); breach asks "did they meet the required standard?" (judged against the reasonable person).
- Defences shift responsibility: Once the plaintiff proves all three elements, the defendant may reduce damages by showing contributory negligence (plaintiff failed to care for their own safety) or defeat the claim entirely through voluntary assumption of risk.
⚖️ What is negligence and why does it matter?
🧩 Definition and scope
Negligence: Omitting to do something a reasonable person would do, or doing something a prudent and reasonable person would not do, to prevent harm; failure to exercise reasonable care and skill resulting in unreasonable risk of foreseeable injury.
- Negligence is not simply carelessness or misjudgment—it requires legal consequences.
- A person is liable only for harm that is a foreseeable consequence of their failure to exercise reasonable care.
- It is the most common tort action and capable of almost infinite expansion and adaptation.
🏛️ Historical foundation
- Modern negligence law originates from Donoghue v Stevenson [1932], the famous "snail in the ginger beer bottle" case.
- Before this case, buyers of faulty goods could only sue for breach of contract.
- The House of Lords established that manufacturers owe a duty of care to consumers who might foreseeably be harmed by careless production, even without a contractual relationship.
- Example: A manufacturer bottles ginger beer carelessly, allowing a snail to contaminate it; the consumer (not the purchaser) drinks it and becomes ill—the manufacturer is liable because harm was reasonably foreseeable.
💼 Practical importance for business and individuals
- Negligence actions arise unexpectedly, often after a loss-making event has occurred.
- Understanding negligence helps businesses establish good practices to avoid liability.
- Insurance consideration: Liability insurance can cover damages, making it crucial for businesses to assess risk and obtain appropriate cover.
- Example: A customer slips on a wet floor in a shop and breaks their hip—the shop owner may be liable if they failed to clean up or warn customers, making liability insurance essential.
🔄 Negligence vs other legal areas
Negligence vs Contract:
- Negligence: duties imposed by law, enforceable by injured party, aims to restore plaintiff to pre-injury position.
- Contract: duties created by agreement, enforceable by parties to contract, includes loss of expected profit.
- Sometimes the same facts allow actions in both (e.g., accountant's failure to exercise due care).
Negligence vs Criminal law:
- Negligence: private action, plaintiff proves case on balance of probabilities, focus on compensating victims, consent may be relevant.
- Criminal: public prosecution, Crown proves beyond reasonable doubt, focus on punishing offenders, victim consent irrelevant.
⏰ Time limits
- Under the Frauds and Limitations Act 1988, s 16(1): action must commence within 6 years from when the cause of action arose.
- Against the State: 6 months under the Claims By and Against the State Act 1996.
- Failure to act within time limits makes the action "statute-barred" (cannot proceed).
🎯 Step 1: Does the defendant owe a duty of care?
🔍 What is duty of care?
Duty of care: The obligation owed by one person (defendant) to another (plaintiff) based on the relationship between them, requiring reasonable care to avoid acts or omissions that would foreseeably injure the plaintiff.
- Duty is the prerequisite of all negligence cases.
- It is a question of law decided by the judge, not a jury.
- Duty is a control mechanism—imposed only when reasonable in all circumstances.
🧪 The foreseeability test
- Plaintiff must show the kind of harm suffered was reasonably foreseeable and resulted from the defendant's acts or omissions.
- Foreseeability is based on an objective test: would a reasonable person have foreseen a real risk of injury?
- Plaintiff must show they were one of the class of people who would foreseeably be at risk if the defendant failed to take reasonable care.
- Don't confuse: Foreseeability alone does not create duty—other factors matter, including reliance, knowledge, vulnerability, and power to control.
📋 Established duty categories
Many duty relationships are already settled by precedent:
- Manufacturers → consumers/users (products safe and properly packaged)
- Employers → employees (safe system of work, competent co-workers)
- Motorists → passengers and other road users
- Teachers → students
- Occupiers → persons on their property
- Professionals (doctors, lawyers) → clients
- Councils → users of their facilities
Example: A motorist owes a duty to pedestrians and other drivers to operate their vehicle with reasonable care; this duty is well-established and rarely disputed.
🆕 Novel cases and salient features
When no precedent exists (e.g., climate change cases), courts examine "salient features" of the relationship, including:
- Foreseeability of harm
- Nature and degree of control by defendant
- Vulnerability of plaintiff
- Degree of reliance by plaintiff
- Assumption of responsibility by defendant
- Proximity (physical, temporal, relational)
- Knowledge by defendant that conduct will cause harm
- Potential indeterminacy of liability
- Consistency with statute
🚫 When duty is limited or absent
Immunity from liability (public policy grounds):
- Armed forces on active duty
- Child protection agencies
- Police, prosecutors, parole boards
- Fire brigades and emergency services
- Barristers
- Statutory immunities
Omissions (failure to act):
- Generally no duty to take positive action (e.g., no duty to attempt rescue).
- Exceptions: pre-existing protective relationship (parent-child), or when defendant creates reliance situation.
- Example: Parents told their 13-year-old son not to fire his slingshot outside their property; he did anyway and injured another boy—court found parents had done all reasonably expected, no breach.
Recreational activities:
- Duty may be limited when risks are obvious and well-known.
- Participants must take reasonable care for their own safety.
- Example: Swimming at a beach between flags—resort owes duty to mark safe areas, but swimmers must check water depth before diving.
⚠️ Step 2: Has the defendant breached the duty?
📏 What is breach?
Once duty is established, plaintiff must prove the defendant failed to meet the standard of care required by law.
Breach involves two questions:
- What is a reasonable standard of care? (question of law)
- Did the defendant reach that standard? (judged against evidence)
👤 The reasonable person standard
Reasonable person: A hypothetical person of normal intelligence, credited with perception of surrounding circumstances and knowledge that an average person would possess in similar circumstances.
- The standard is objective, not subjective—inexperience is not an excuse.
- If a person claims a particular skill (e.g., driving, professional expertise), they must show the skill normally possessed by ordinary members of that profession.
- Example: A newly licensed driver is judged by the standard of an experienced, competent driver, not by their own limited experience.
🔄 Flexibility of the standard
The standard varies depending on:
- Circumstances: emergency situations may lower the standard.
- Personal characteristics: age (children judged by standard of similar-age child), fitness, health, disability.
- Skill and knowledge: professionals held to professional standards.
Example: A child's standard of care is that of a child of similar age and experience, not an adult, because children perceive danger differently.
🧮 Factors in determining breach
Courts consider:
-
Probability of harm: How likely was injury if care was not taken?
- Example: Bolton v Stone—cricket ball hit plaintiff outside ground; very remote chance (over 65 meters, cleared 2.2m fence); defendant not liable because risk was highly unlikely and prevention would require ceasing cricket.
-
Likely seriousness of harm: Judged objectively by circumstances.
- Example: Eye operation with 1:14,000 risk of blindness—patient should still be warned because outcome is catastrophic, even if risk appears small.
-
Burden of taking precautions: Expense, difficulty, inconvenience balanced against risk.
- Example: "No Diving" signs at a bridge were reasonable response; expensive new fencing not required if signs were adequate.
-
Social utility of activity: Some activities worth taking risks for (e.g., contact sports benefit health).
🗣️ Res ipsa loquitur ("the facts speak for themselves")
A rule of evidence allowing negligence to be inferred if:
- Injury ordinarily would not happen if proper care taken
- Plaintiff injured by something in exclusive control of defendant
- Absence of explanation—no other reasonable inference
Example: Passenger fell out of railway carriage shortly after train left station—railway in control of ensuring doors shut; succeeded because no explanation other than railway's negligence.
Don't confuse: If the cause becomes known, plaintiff must prove it was defendant's negligence.
💥 Step 3: Has the plaintiff suffered damage?
🔗 Causation: the bond between conduct and harm
Causation is the final element plaintiff must establish—the link between defendant's breach and plaintiff's injury.
Two types of causation:
-
Factual causation ("but for" test):
- Would the harm have occurred but for the defendant's negligence?
- Plaintiff must prove, on balance of probabilities, defendant's negligence was a necessary condition of the harm.
- Example: Barnett v Chelsea Hospital—doctor refused to examine patient who drank arsenic; patient died, but would have died anyway even with treatment—no causation, action failed.
-
Legal (proximate) causation:
- Was the defendant's act the direct cause of the result?
- Must be foreseeable consequence of negligence, not too "remote."
- What has to be foreseeable is the type or kind of injury, not the exact manner.
📊 Types of recoverable damage
Only actual damage is compensable:
- Physical injury to person
- Damage to property
- Economic/financial loss (limited circumstances)
- Psychiatric damage (nervous shock)
Not recoverable:
- Damage from criminal/fraudulent activities (policy grounds)
- Vague harm (e.g., expulsion from social club, unless natural justice violated)
- Harm to reputation (defamation action appropriate instead)
🥚 The "egg-shell skull" rule
Defendant must take the plaintiff as they find them.
- Defendant liable even if plaintiff had pre-existing condition that made injuries worse.
- Applies only to damage of the same kind as reasonably foreseeable.
- Example: Plaintiff with fragile bones suffers worse fracture in accident—defendant liable for full extent of injury, not just what "average" person would suffer.
🔄 Multiple defendants and intervening events
- If multiple possible defendants and responsibility cannot be assigned to one, courts may assign responsibility to all, considering each individually.
- Sometimes an intervening event (third person's actions) may relieve negligent defendant of responsibility.
- Example: Chapman v Hearse—Chapman negligently caused accident; Dr Cherry came to aid and was killed by Hearse (another driver); both drivers owed Dr Cherry duty of care, both liable.
🛡️ Step 4: What defences can the defendant raise?
🤝 Contributory negligence
Contributory negligence: Plaintiff's failure to take reasonable care for their own safety that contributed to their injury.
To establish, defendant must prove:
- Plaintiff was at fault/negligent in failing to look after themselves
- Plaintiff's conduct contributed to the injury
- Damage was reasonably foreseeable and contributed to by plaintiff's actions
Effect:
- Court apportions damages based on what is "just and equitable" between parties.
- Can reduce damages by any percentage, up to 100% (effectively defeating claim).
- Under Wrongs (Miscellaneous Provisions) Act 1975, s 40, plaintiff entitled to recover portion of damages based on defendant's negligence.
Presumption of contributory negligence:
- If plaintiff was intoxicated (drunk or on drugs)
- If plaintiff relied on care/skill of person they knew was intoxicated
- Plaintiff may rebut by showing intoxication did not impair capacity to exercise reasonable care
Don't confuse with voluntary assumption of risk: Contributory negligence reduces damages; voluntary assumption defeats claim entirely.
🎲 Voluntary assumption of risk
Voluntary assumption of risk: Plaintiff knew there was a risk of injury and knowingly engaged in the activity, consenting to the full risk.
- A complete defence—if successful, plaintiff loses entire claim.
- Very difficult for defendant to establish.
- Must show plaintiff had knowledge of risk and voluntarily accepted it.
Two ways to establish:
-
Expressly: Plaintiff signed waiver or contract with exclusion clause acknowledging risk.
- Waivers/exclusion clauses construed strictly against party relying on them.
-
Impliedly by conduct: Plaintiff knowingly engaged in risky/dangerous activity.
- Example: Rock climbing, water skiing with friends, attending sporting event and getting hit by ball—reasonable person aware of inherent risk.
⚖️ Other defences (brief mention)
- Illegality: Plaintiff engaged in illegal activity
- Inevitable accident: Harm occurred despite all reasonable care
💰 Step 5: What may the plaintiff recover?
💵 Damages (compensation)
- Generally, plaintiff seeks monetary compensation for damage/loss suffered.
- Purpose: compensate, not punish—put plaintiff in position they would have been in had tort not occurred.
- Awarded on case-by-case basis.
- Don't confuse: "Damage" = loss; "damages" = compensation.
🔗 Joint tortfeasors
Where two or more persons caused injury, proving negligence of one can create difficulties unless they were joint tortfeasors (acting together).
🏢 Other areas absorbed into negligence
👔 Vicarious liability
Vicarious liability: Employer held responsible for acts/omissions of employees that cause injury/damage to third parties, even though employer not personally at fault.
Requirements:
- Employee under employer's control via contract of service (not independent contractor with contract for services)
- Wrongful acts undertaken in scope/course of employment
- Acts need not be authorized—may be improper modes of doing authorized acts
Rationale: Employer benefits from employee's activities (profit), so should compensate injured third parties.
Practical note: Little benefit suing employee (rarely has money); employer more likely able to pay via business costs or liability insurance.
Example: Hotel barmaid threw glass at offensive customer—question is whether her actions were within course of employment (what is barmaid employed to do?).
🏠 Occupier's liability
Occupier's liability: Occupier (owner or tenant with control) must take reasonable care to ensure anyone entering premises is reasonably safe.
- Absorbed into negligence; governed by Wrongs Miscellaneous Provisions Act 1975, ss 52-54.
- Common duty of care applies to all visitors unless occupier expressly restricts/excludes duty (s 52(1)).
- Owed to: guests, those entering by permission (visitors, salespeople), even uninvited (trespassers).
To establish:
- Defendant had occupation/control of land or structure
- Would reasonable person in defendant's position foresee real risk of injury?
- What would reasonable person do in response? (consider magnitude, cost, probability, whether risk ordinary/obvious)
Not strict liability: Occupier need not remove all hazards, only take reasonable care to avoid unreasonable risk.
Example: Mother injured at garage sale on uneven driveway with potholes—was risk obvious? Should warnings be given or table relocated?
📦 Product liability
- Donoghue v Stevenson established manufacturers owe duty to consumers.
- Duty exists when:
- Product reaches consumer in form it left manufacturer
- No reasonable possibility of intermediate examination
- Reasonably foreseeable that absence of care will cause injury
Practical problem: Suing manufacturer can be costly and complicated, especially if overseas.
Alternative: Statutory protection under Goods Act 1951, Independent Consumer and Competition Act 2002, Fair Transactions Act 1973.
Example: New outfit contained chemicals due to manufacturer's lack of care, causing injury—manufacturer produced evidence of 10,000 similar outfits without complaint; does manufacturer owe duty?
⚡ Strict liability
Strict liability: Defendant held liable for damages regardless of fault, intent, or mental state—no need to prove negligence.
Typical situations:
- Employer-employee relationships: obligation to provide safe workplace, safe system, competent staff, proper equipment
- Statutory duties: Occupational Safety, Health and Welfare Act 1991, Workers Compensation Act 1978
Non-delegable duty: Employer can delegate responsibility but cannot avoid duty, even if performance delegated to third party.
Example: Edwards v Jordan Lighting—plaintiff inspecting light fittings when ladder slipped after second employee let go without warning; both employer and employee liable (employee failed to warn, employer failed to provide safe system).
Also applied to: Product liability, damage by animals (domestic vs wild—different standards), hazardous activities (storing explosives).
📜 Breach of statutory duty
- Person suffering damage from breach of statutory duty by defendant may have action.
- Must establish: defendant under statutory duty, failed to perform it, breach caused damage.
- Check if statute expressly provides right of action; if silent, courts "discover" Parliament's intention via statutory interpretation.
🌊 The rule in Rylands v Fletcher
Rylands v Fletcher [1868]: Occupier who accumulates something dangerous on land in non-natural use, and it escapes causing foreseeable damage, is strictly liable.
Still applies in PNG (absorbed into negligence in Australia).
Claimant must establish:
- Defendant brought something onto their land
- Defendant made "non-natural use" of land
- What was brought was likely to do mischief if escaped
- There was escape causing reasonably foreseeable damage
Defences: Consent, statutory authority, act of God, act of stranger, fault of claimant.
Example: Defendant built reservoir; contractors left disused mine shafts; reservoir burst through shafts and flooded plaintiff's adjacent mine—is defendant liable?
Key takeaway: Negligence is a structured, step-by-step inquiry requiring plaintiffs to prove duty, breach, and damage, while defendants may reduce or eliminate liability through defences, with the overarching principle that people must take reasonable care to avoid foreseeable harm to others.