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The tort of negligence is concerned with careless actions that result in loss. Consider the following case.
The mouse in the bread
A 52-year-old electrical engineer, John Jonas Vince, cut a slice from a loaf
of bread and ate it. He cut another slice and was about to eat it when he noticed something the size of a 20-cent piece in it. It was a dead mouse. Vince realised that he had eaten part of the dead mouse with the first slice and immediately vomited. Since then he has been unable to eat bread and for a period immediately afterwards, simply thinking about bread caused nausea and headaches. He developed a phobia about bread. He is unable to visit restaurants because the sight of people eating bread is sufficient to make him sick. He is unable to eat meals with the rest of the family if the meal consists of bread, cakes or similar products. He no longer visits friends for fear of being sick if he sees bread consumed.
Can Vince take legal action? To answer this we must consider two points.
● Does Vince have a civil right that may give rise to action?
● What damage has he suffered?
The mouse in the bread
A 52-year-old electrical engineer, John Jonas Vince, cut a slice from a loaf
of bread and ate it. He cut another slice and was about to eat it when he noticed something the size of a 20-cent piece in it. It was a dead mouse. Vince realised that he had eaten part of the dead mouse with the first slice and immediately vomited. Since then he has been unable to eat bread and for a period immediately afterwards, simply thinking about bread caused nausea and headaches. He developed a phobia about bread. He is unable to visit restaurants because the sight of people eating bread is sufficient to make him sick. He is unable to eat meals with the rest of the family if the meal consists of bread, cakes or similar products. He no longer visits friends for fear of being sick if he sees bread consumed.
Can Vince take legal action? To answer this we must consider two points.
● Does Vince have a civil right that may give rise to action?
● What damage has he suffered?
Breach of the Duty of Care
Once the plaintiff has established that the defendant owed a duty of care, the next step is to prove that the duty was breached. This requires the plaintiff to prove:
• that the risk of injury was foreseeable
• that the defendant failed to exercise a reasonable standard of care in the circumstances.
Deciding whether the risk of injury was foreseeable and how much care should have been taken in the circumstances is not always straight forward. Consider a situation where a female passenger in a car got out of the rear right door, but some of her clothing became caught in the door. When the driver heard the door close he slowly drove off. The passenger was dragged for some distance before the defendant heard her calls and stopped. Would a reasonable driver foresee the possibility that this injury would occur? What do you think?
In measuring the standard of care owed in the particular circumstances, courts consider a number of factors including:
• the likelihood of injury. Was the risk of injury to the plaintiff reasonably foreseeable? If risk of injury is so remote that a reasonable person would ignore it, then the defendant may be justified in disregarding it.
• the seriousness of injury. If the potential risk is great, the defendant should take greater precautions.
• the effort and cost involved to address the risk. A defendant may be justified in not taking steps to address a risk if it is not economically justifiable.
Once the plaintiff has established that the defendant owed a duty of care, the next step is to prove that the duty was breached. This requires the plaintiff to prove:
• that the risk of injury was foreseeable
• that the defendant failed to exercise a reasonable standard of care in the circumstances.
Deciding whether the risk of injury was foreseeable and how much care should have been taken in the circumstances is not always straight forward. Consider a situation where a female passenger in a car got out of the rear right door, but some of her clothing became caught in the door. When the driver heard the door close he slowly drove off. The passenger was dragged for some distance before the defendant heard her calls and stopped. Would a reasonable driver foresee the possibility that this injury would occur? What do you think?
In measuring the standard of care owed in the particular circumstances, courts consider a number of factors including:
• the likelihood of injury. Was the risk of injury to the plaintiff reasonably foreseeable? If risk of injury is so remote that a reasonable person would ignore it, then the defendant may be justified in disregarding it.
• the seriousness of injury. If the potential risk is great, the defendant should take greater precautions.
• the effort and cost involved to address the risk. A defendant may be justified in not taking steps to address a risk if it is not economically justifiable.
Loss Suffered
Even if the duty of care owed was breached, unless the plaintiff actually suffered injury, he or she will not succeed in a negligence claim. The plaintiff must show injury or loss and that it was directly caused by the defendant’s failure to exercise adequate care.
It is not always easy to show the exact cause of an injury, as there is often more than one cause.
Consider the hypothetical case of a girl who was injured in a car accident as a result of a driver’s negligence. While in hospital, a friend gave her some heroin to help ease her pain. Consequently, she became a heroin addict. Ask yourself: did the negligent car driver directly cause her drug addiction?
In more difficult cases where causation is not clear, courts ask whether the plaintiff would have been injured ‘but for’ the defendant’s conduct. In March v. Stramare (E & MH) Pty Ltd (1991) 171 CLR 506, the defendant parked his truck in the middle of a four-lane road in Adelaide, at night, to unload goods. The plaintiff, who was very drunk, was injured when he drove his vehicle into the truck. Even though the plaintiff was drunk, the High Court found that ‘but for’ the truck driver negligently parking in the middle of the road, the accident probably would not have happened.
Even if the duty of care owed was breached, unless the plaintiff actually suffered injury, he or she will not succeed in a negligence claim. The plaintiff must show injury or loss and that it was directly caused by the defendant’s failure to exercise adequate care.
It is not always easy to show the exact cause of an injury, as there is often more than one cause.
Consider the hypothetical case of a girl who was injured in a car accident as a result of a driver’s negligence. While in hospital, a friend gave her some heroin to help ease her pain. Consequently, she became a heroin addict. Ask yourself: did the negligent car driver directly cause her drug addiction?
In more difficult cases where causation is not clear, courts ask whether the plaintiff would have been injured ‘but for’ the defendant’s conduct. In March v. Stramare (E & MH) Pty Ltd (1991) 171 CLR 506, the defendant parked his truck in the middle of a four-lane road in Adelaide, at night, to unload goods. The plaintiff, who was very drunk, was injured when he drove his vehicle into the truck. Even though the plaintiff was drunk, the High Court found that ‘but for’ the truck driver negligently parking in the middle of the road, the accident probably would not have happened.