Question

What are the elements of breach of duty of care under common law and statutory law? (Australian Law)

Answer 1

The "duty of care" exists between two parties : the plaintiff and the defendant. It is under the legal bodies to make a person avoid doing any negligence or skip any duty. If any person would do so then that person has to face the consequences of legal actions. There are three elements of breach of duty of care -

1) Foreseeability -

It is under the tort law that one party (plaintiff) gets injured by the action or inaction of another party (defendant). So, the law says, it would not be a breach of duty of care unless the defendant would have foreseen that the plaintiff would likely to get injured by his consequences. If the defendant would not foreseen the action or consequences of hurting plaintiff then the defendant may not be liable for the breach of duty of care.

2) Proximity -

It can be said that to establish the relationship of "duty of care", there must be a proximity between plaintiff and the defendant. And the breach of that duty of care would occurs when the defendant has already predicted that the plaintiff would get injured unreasonably by the consequences. It is also called " neighbor principles ". Here, neighbor would be those persons who are close to the defendant and the action of defendant may harm those people.

3) Just and reasonableness -

It is when a wrongdoer's action harms the proximate plaintiff, it can be said that the situation is just and reasonable that the wrongdoer is liable for the consequences done to the plaintiff.

Hope this helps :)