Essentials of Negligence

Peter is a real estate developer. He develops residential apartment complexes in the Wollongong local area. He purchases a large block of land for $2 million and plans to build a large apartment complex on the block at a considerable profit. But Wollongong Council denies his development application on the basis of a road widening proposal that will substantially reduce the size of the block. This road widening proposal reduces the value of the block of Peter’s land to $1 million.Peter reads the council certificate he obtained from Wollongong Council before he purchased the block of land. If the block of land had been subject to a road widening proposal then it should have been disclosed by Wollongong Council in the certificate. There is no such disclosure in the certificate. As Peter didn’t bother to read the certificate before he purchased the land, he is relieved to find the council has made this mistake. He secretly knows that if Wollongong Council had been careful and included the road widening disclosure in the certificate, he would not have seen it and gone ahead with the land purchase anyway. Peter now wants to sue Wollongong Council in negligence for economic loss. Wollongong Council claims that negligence only applies to physical actions, not written words, and is only applicable to physical damage to people or their property, not economic loss.

Advise Peter

The issue in this case is related to the fact that whether Peter can claim compensation for economic loss in negligence from Wollongong Council.

This case study discusses the theory of negligence as it has been observed in the matter of Donoghue v Stevenson [1932]. This case is applicable in the given case study. It was established in this scenario that if because of the behavior of an individual has an effect on the wellbeing of another individual, the aggrieved party will be treated as the neighbor. On the other side, the person whose actions affect is said to owe a duty of care to the neighbor. Hence, the concept of tort of negligence describes a scenario when a person fails to carry out the duty of care for the aggrieved individual as per the principle of neighbor in this situation. There can be a breach of duty in such a situation when the defendant will have the ability to overlook the injury that had arose because of the actions of the defendant. Hence, there are a few existing essentials of negligence that can be evidenced when the situation is related to the claims of negligence.

Duty of Care

Duty of care is the first and foremost essential that should be present. In this scenario, the defendant must owe a duty of care to the plaintiff. Thus, he should ensure that the care is properly provided and executed consistently. It can however be implied that the defendant should have undertaken the probable measures to prevent the damage that has been caused to the plaintiff due to his actions.

Breach of duty to take care is the second essential that is related to the concept of negligence. As per this essential, if any kind of breach is done to the first essential by the defendant and have caused damage to the plaintiff, then he will be held negligent.        

 Causation is the third essential linked to the concept of negligence. The term causation arises when the plaintiff has been injured and hurt due to the activities of the defendant. In the case of Barclays Oyster Pty Limited and Another v Ryan [2002] it has been observed and held that the Court had provided the test of but for that it has to be determined that if the reason of the damage was a direct result of the defendant’s activities. Hence, in case of the acts of the negligence, the plaintiff had suffered the loss and damage. If it did not arise at the first instance then it would not have sustained the injury or have gone through any sort of losses.

Remoteness is the last essential associated with negligence. In this element, it arises that when there was an indirect consequence of the actions of the defendant, he will be held liable for the injury. Hence, it must not be that much distant and this kind of damage was established in the case of Spartan Steel & Alloys v Martin [1972] EWCA. However, the reason for economic loss was caused due to negligence and it can be caused due to negligent words. In the case of Byrne & Co Ltd v Heller & Partners Ltd [1964], the concept of negligent words had occurred by creating economic loss. In such a case, the rule was overruled and the Court had permitted for the growth of pure loss that had an outcome in the use of negligent words. Therefore, in a few specific cases, the Court had decided that there was a scope of restoration from the economic loss that was permitted only if the plaintiff had provided evidence stating that a duty of care had existed between the plaintiff and the defendant.

Breach of Duty to Take Care

For determining that if the theory of duty of care exists then few of the factors must be followed thereafter. Vulnerability must be taken care of if the plaintiff has failed to pursue any kind of proper steps for forestalling the negligence that the defendant had committed and he will owe a duty of care. Thus, the Court can consider the practical possibilities that are available to the plaintiff for preventing negligence. Control is applicable in such a situation where the defendant has the authority to control the occurrence of negligence. Hence, it will be treated as a breach of duty of care. Assumption of reliance defines a scenario where the defendant had the possible knowledge that the plaintiff had faith on the responsibility of the defendant since duty of care will be owed by him.

Standard of care refers to a situation where the only degree of prudence and caution is needed of an individual who is under the duty of care. However, the standard of care are relatively dependent on specific circumstances. Such a situation was mentioned in the case of Chaina v Presbyterian Church (NSW) [2014]

Assumption of risk is referred to as a defense in the law of torts that helps in reducing the right to recovery of the plaintiff against the voluntary injury caused by the defendant. The defendant will only succeed in such a situation only if the defendant can provide evidence that the plaintiff had knowingly assumed the risks at the time of issuing.

Contributory negligence refers to a common law jurisdictions where a defense to a claim depends on the negligence, which is an action in tort. Contributory negligence was stated in the case of Podrebersek v Australian Iron and Steel [1985] HCA 34

The Australian Law refers to a situation where there is negligence claims for economic loss. It can be observed here that the plaintiff had suffered from loss of monetary issues but it did not harm or damage anything physically. Thus, usually the Courts do not permit such kind of scenario. The economic loss arises when the plaintiff generally goes down any kind of financial loss. Economic loss can also occur due to negligent acts can occur as well as have been observed in the case of Arthur JS Hall & Co v Simons [2002].  In this matter, the Court had exclaimed that such kind of a recovery is not impossible if the defendant was aware of the facts that due to the negligent acts, economic los will arise to the plaintiff.

It can be noticed from the facts that the certificate was obtained from Wollongong Council by Peter. It was prior to acquire that particular block of land. However, on the other hand, the Council did not state that widening of the road would reduce the size of the block. Thus, Peter did not revise the certificate while purchasing the land despite the road proposal in the certificate regarding to the purchase. If the road proposal was not specified in the certificate then Peter will have no other option. He will be forced to purchase the land. In this situation it was observed that Peter was in a vulnerable position. Peter failed to go through the certificate even when the details were provided in the certificate. In such a situation the concept of negligence and breach of duty to care will be applied. Hence, the Council the Council purchased that particular land whereas on the certificate it was stated that the proposal of road widening was permitted to Peter.

Conclusion

Lastly, the conclusion states that due to the negligent omission committed by Wollongong Council to Peter will be recovered.

References:

Arthur JS Hall & Co v Simons [2002] 1 AC 615, 681

Barclays Oyster Pty Limited and Another v Ryan [2002] HCA 54 at [211]

Byrne & Co Ltd v Heller & Partners Ltd [1964]

Chaina v Presbyterian Church (NSW) [2014]

Donoghue v Stevenson [1932] UKHL 100, SC (HL) 31, AC 562

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465

Podrebersek v Australian Iron and Steel [1985] HCA 34

Spartan Steel & Alloys v Martin [1972] EWCA