The most common actionable tort in Australia, the Tort of
Negligence provides civil remedies to people who suffer injuries or
property damage by the behaviour of others.
Developing the law
The Tort of Negligence was developed over two centuries based on cases that were not criminal
wrongs and did not deserve major sanctions such as loss of personal freedom. These laws were
developed to prevent individuals or companies from accidentally or purposely causing harm around
other individuals, and to offer a remedy if negligence was to occur.
The duty of care was first introduced following the completion of the
case Donoghue v Stevenson (1932) where Donoghue purchased a drink which unknowingly has a
decomposing snail inside of it. Once consuming this drink, Donoghue became very ill; and as a result
sued the company which manufactured the drink for negligence. The case was won, and now all third
parties had the right to sue if goods were not manufactured to be suitable for use.
The law of negligence was finally introduced within Australia in 1936 following the Grant v Australian
Knitting Mills case. This case found that the company which created the products Grant bought had not
been manufactured properly, and as a result Grant won the case. Furthermore, this case was significant
in that it established the statutes that had to be proven to become successful in suing a
company/individual for negligence.
Extensions of the law
Contributory negligence is where the harm suffered by the plaintiff was partly the
plaintiff’s own negligence, and this will be taken into consideration when coming
to a decision on a case.
Vicarious liability is when the responsibility of the issue is not placed on the offender, but on the
company or person who employed the person who exhibits the Tort of Negligence.
From these two cases, negligence was able to be introduced into Australia effectively. From these two
cases it was able to be determined what negligence was, the regulations which have to proven that the
defendant was guilty of negligence and the remedies which would be offered to the plaintiff.
Introducing the Tort of Negligence also helps to clearly outline to the Australian society of what is
acceptable behaviour and what is not. This helps create a guideline of how people are expected to act
and the way in which individuals should treat their legal neighbours. This also helps individuals
determine whether their actions are morally right, and whether they should be following through with
To convict someone of negligence, several regulations must be proven by the plaintiff to a judge within a
civil court to have any prospect of winning the case.
A duty of care is the responsibility of the defendant to take reasonable care when partaking in an activity
or task that could possible threaten the safety of a person or property. This is a legal obligation by the
government which states that the upmost precaution must be taken to ensure that the actions of all
people do not harm another.
A legal neighbour is the person who is likely to be impacted by the defendants remiss actions. It is said
that everyone must take into consideration the effects of their acts on other people and property.
For a plaintiff to receive damages from the defendant’s actions, it is required by the judiciary that the
injuries or damage caused were foreseeable. If the defendant was unable to predict that harm could be
caused, then damages are unlikely to be rewarded.
The reasonable person test in used to determine whether an act was negligent. This is decided by the
judiciary as to whether a “reasonable person” would have committed the same act as done by the
defendant. The skills of a person is also considered; for example if a building business were to be sued;
the standard of skills is higher for the project manager than an apprentice.
Bailey, G 2015, SACE 2 Legal Studies, 2nd edn, Essentials Education, South Australia.
Tarakson, S 2005, Legal answers, NSW Government, accessed 23 February 2016,
Donoghue v Stevenson  UKHL 100
Grant v The Australian Knitting Mills ( A.C. 562
Word Count 866
If a case is successful, then there are two
types of remedies offered to the plaintiff.
Damages is a sum of money given to the plaintiff to compensate the harm
caused. The purpose of damages is to return the plaintiff to the state they
were in before the civil wrong happened.
Injunctions are orders which restrain the offending party from repeating
similar actions. These can be done by removing the offending equipment
or not allowing the defendant to exhibit certain behaviour.
Complications surrounding the law
Despite the Tort of Negligence being extremely successful in dealing with
civil wrongs, there is occasionally cases or situations where a remedy is
struggled to be found.
A common issue when the plaintiff is successful in the case is the agreement of who will cover the
damages owed to the plaintiff. Although most business will have their companies insured, there is
sometimes issues surrounding the payout to the plaintiff. Additionally, some companies or individuals
may not have personal insurance, in which case the defendant may have great issues in finding the
funds to remedy the plaintiff. This can cause extreme issues in where people or businesses are
bankrupted by having to spend all their funds on damages. Additionally, if someone is unable to pay for
insurance, then there is little doubt they will definitely not be able to pay for damages.