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Negligence Essay

1425 words - 6 pages

Teacher's role in the classroom is to take place of the parents whilst in school. They also must take reasonable action to decrease the likelihood of injury to students. (Queensland teachers union, teachers and law 5th edition page 7)

Three elements to establish a negligence case

        A duty of care was owed

        There was a breach of the duty

        Damages occurred because of the breach

Duty of Care

Two points in order to establish a duty of care

        Should a teacher as a reasonable person foresee the incident?

        Did he/she take sufficient precautions to prevent the incident?

But first was he/she a legal neighbour. The law defines a neighbour as "someone so closely and directly affected by my act that I ought reasonable 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"(Lord Atkin often Donoghue vs. Stevenson 1932)

Two sub-elements to define the neighbour principal:-

        The proximity requirement

        The foreseeability principle

The proximity requirement - 1st element of neighbour principal

        Physical proximity - relates to space and time

        Circumstantial proximity - employer/employee, teacher/student

        Casual proximity - closeness and directness of loss when injury occurred eg mother of boy in car crash, she may not have been in the accident but witnessed the extent of his injuries in hospital and suffered. (Woodgate, Black, Biggs, Owens 2002:303)

Although this is not an approved standard of stating negligence in modern courts with the current judges it is taken into consideration.

The foreseeability principal - 2nd element of neighbour principal

The court makes judgement on what a reasonable person in the shoes of the defendant should have been able to foresee the result of his/her actions

As new cases arise the 'neighbour principal' expands in who is our neighbour.
Public policy is a defence used meaning it was in the best interest of the community

Breach of Duty

        Not behaving as a reasonable person is expected to behave.

The 'reasonable person test' is used to see if a reasonable person would have done the same in the situation. This is made by the courts to its ruling is slightly inconsistent. No precedent can be sent because each case must be measured against its own circumstances.

There are also eight factors to be considered when establishing the appropriate standard of care. This include The probability of injury occurring, The seriousness of the possible injury, How beneficial the activity is to those involved, Whether standard procedures in the profession have been followed, Whether the standard procedures meet the standard of care required by law, Any special characteristics of the plaintiff or the defendant, The practicality (cost and convenience) of taking precautions and Whether the requirements of relevant Acts...

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