Children and negligence

What is negligence?

In situations where one person owes another a duty of care, negligence is doing, or failing to do something that a reasonable person would, or would not, do and which causes another person damage, injury or loss as a result.

In South Australia the Civil Liability Act 1936 (SA) is used to assess the negligence of individuals and the liability they face as a result of any negligent acts on their part.

If a person sues another in negligence, the person is seeking financial compensation for damage. They are seeking to be put in the position they would have been in if the negligence had not occurred. Common situations where negligence may be alleged include car accidents where there is property damage or personal injury, accidents on private or public land, and professional negligence such as medical negligence.

How is negligence determined?

Whether or not negligence has occurred is a matter of satisfying four questions.

All these factors must be satisfied. If even one is not satisfied then the applicant will not be able to establish that the respondent was negligent.

There onus of proof is reversed in relation to institutional child abuse from 1 August 2022 [ss 50E and 50F]. For more information, see Victims of Child Abuse, Child abuse - civil claims.

What is a duty of care?

A duty of care is a legal obligation to avoid causing harm and arises where harm is ‘reasonably foreseeable’ if care is not taken. There must be a sufficient relationship of closeness (sometimes referred to as ‘proximity’) between the two people in order for a duty of care to exist. An example of such a relationship would be a doctor and patient relationship or the relationship between drivers and other road users.

Under the Civil Liability Act 1936 there are some qualifications on the duty of care such as, for example, 'good Samaritans' and food donors. People acting in an emergency situation without expectation of payment or providing food for a charitable purpose are generally exempt from civil liability, providing they did not act recklessly.

When is a duty of care breached?

In order to establish whether a duty of care has been breached the court will look first of all at the standard of care that is expected in the circumstances.

The standard of care is determined by looking at what a reasonable person would have done (or not done) in the same circumstances. Where a respondent has acted in an unreasonable way or their actions fell well below the standard expected they will be found to have breached their duty of care.

The most common examples are those that apply to everyday activities such as driving. All road users (including pedestrians) are expected to behave according to what is reasonable.

Examples of failure to meet a standard of care:

Determining whether a breach of duty of care caused an injury

In some cases it will be obvious what has caused the injury. For example, if a person slips on a wet floor and breaks their arm, then there is a clear connection between the wet floor and the injury suffered (the broken arm).

However, in many cases the cause of an injury may be more complex. There may be more than one event that could have caused the injury. For example, where a person slips on a wet floor and injures their arm, but earlier that morning they had injured the same arm in a fall from their bicycle, there will be questions about whether one event or both caused the injury and to what extent.

From 14 July 2022, there is a limitation on the liability duty of care of a supplier of food when a customer provides their own container, if any personal injury is suffered as a result of the use of the container [see Civil Liability Act 1936 (SA) s 74B].

Contributory negligence

Contributory negligence occurs when the injured person themselves is found to have contributed to the cause of their loss or injury. If an applicant has failed to take reasonable care for their own safety or loss then they will be found contributorily negligent. The amount of damages they can claim will be reduced according to the extent they are found to have contributed to the loss.

Some examples of contributory negligence are:

Vicarious liability

Vicarious liability occurs where one person is held liable for the negligent actions of another. It is commonly relied upon for negligence on the part of employees carrying out their duties. In most cases the employer will be vicariously liable for the employee’s negligence.

The definition of vicarious liability is expanded in relation to institutional child abuse from 1 August 2022 [s 50G]. For more information, see Victims of Child Abuse, Child abuse - civil claims.

Is a claim worthwhile?

Legal advice is necessary to determine:

Time limits

When making a claim for damages arising from personal injury there is a time limit of 3 years - documents must be filed at least 90 days before the time limit expires so in practical terms any application must be made within 2 years and 9 months.

Under rule 61.6 of the Uniform Civil Rules 2020, a person who intends on commencing a personal injury claim in Court (the applicant), must within 6 months after the day on which the incident occurred, serve on the person potentially liable (the respondent) a written early notice of injury.

When making a claim for damages arising from property damage or economic loss there is a time limit of 6 years - documents must be filed at least 90 days before the time limit expires so in practical terms any application must be made within 5 years and 9 months.

Apologies

Under the Civil Liability Act 1936 (SA) an apology made by or on behalf of a person in connection with any matter alleged to have been caused by the person -

Evidence of an apology is not admissible in any civil proceedings as evidence of the fault or liability of the person in connection with that matter [s 74(2)]. However this does not apply to some civil proceedings (defamation cases and cases excluded by regulation) [s74(3)].

apology means an expression of sympathy or regret, or of a general sense of benevolence or compassion, in connection with any matter, whether or not the apology admits or implies an admission of fault in connection with the matter.