The tort of negligence, has all the elements for a duty of care which are a breach of the duty, causation and damage. These elements are frequently interconnected and legal practitioners are used to assessing them globally. Frequently the most important of these is breach, and the others are not overly controversial.
However, it is worth reviewing the process to a negligence claim: the existence and scope of a duty of care; particularly in light of some recent court decisions.
The importance of the identification of the duty of care arises at two points;
…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.”
The law has taken a long journey since Donoghue v Stevenson in developing and expanding the scope of the tort, including by way of such tools as proximity, varying concepts of remoteness and the creation of numerous sub-classes of people to whom varying standards of the duty of care were owed.
Most recently, the common law in Australia has, over the last decade or so, turned back towards a more simplistic analysis of the duty of care. The extent of liability has been less governed by restrictions and variations at the ‘front end’ on what standard of duty is owed to whom depending on their relationship, and more by how a breach of a more general standard may be affected at the ‘back end’ by the actions of the injured person by way of contributory negligence or in some cases voluntary assumption of risk.