The Tort of Negligence

22 December, 2019 | Nathan Tetzlaff

Legal disputes generally fall into one of three main categories:

  • Breach of contract
  • Breach of law
  • A tort.

Torts are a type of obligation created by judges.

The most common and well-known tort is the tort of negligence.  If a builder does a bad job you might have a claim against them for negligence.  If somebody drives into your car causing damage, that’s another claim for negligence.

There can be different types of breaches coming from the same situation.   In the builder example above, the builder might be in breach of their contract with you as well as being negligent.  In that case if you sued them, you would claim for breach of contract and breach of tort, although you couldn’t get compensation for both.

General Principles of Negligence

The tort of negligence has developed over time, but the key principles were established in a very famous English case called Donoghue v Stevenson.  In that case a person fell ill after drinking from a bottle that turned out to have a dead snail in it. The elements of negligence established in that case are:

  • One person has a duty to another person;
  • That person breaches their duty;
  • The second person suffers some kind of harm or loss as a result.

In the Donoghue case the duty was to make sure that the manufacturer didn’t allow snails or any other noxious substance to make their way into their products. The breach was allowing the snail to get into the bottle unnoticed.  The loss was the illness suffered by Donoghue, and their medical bills.

Any situation where a person has a duty can give rise to negligence if that duty is breached. The duty does not have to be expressly agreed, although it can be.

Duties can arise from all sorts of situations. It’s up to the court to decide whether a particular situation results in a duty. Some examples of duties are:

  • The duty on person on an e-scooter to watch out not to ride into pedestrians on the footpath;
  • The duty on a tradesman to do their job to an ordinary competent standard;
  • The duty on an accountant to give correct tax advice; and
  • The duty on a farmer to ensure that their cattle do not eat a neighbour’s crops.


If a person has committed the tort of negligence the victim can claim financial compensation for the losses that they have suffered. This could include the cost of hiring somebody else to repair defective building work, or replacing property which has been damaged by negligence.

Because of ACC, it is NOT possible to claim for a personal injury covered by ACC even when this is caused by negligence.  In the case of an e-scooter rider who bumps into someone because they were speeding and not paying attention, they wouldn’t be liable for that person’s medical bills, but could be liable to pay for the phone that they dropped and was broken in the crash.

A person’s losses can include more than just the cost of putting the negligent work right.  Indirect losses might also be claimed.  In the example of a negligent builder, if the house could not be inhabited while the work was being fixed then the homeowner might be entitled to claim the costs of finding alternative accommodation for that period.

What can be claimed and what can’t be claimed depends on whether there is enough causation between the loss and the negligent conduct. This generally depends on what losses are reasonably foreseeable from the negligent conduct.

Using the example of a negligent driver who causes a car crash, it is reasonably foreseeable that driving negligently could cause property damage to another person’s car so this amount would be claimable. However, if the person they crashed into was made late for an important meeting and wasn’t able to close a significant deal as result, they probably could NOT make a claim for the loss of that deal.  That loss is too indirect and is not be reasonably foreseeable by the negligent driver.

Punitive Damages

In some cases, the court will award punitive damages.  This is an amount over and above the victim’s actual losses.  Punitive damages are a penalty on the negligent person to punish them for their negligence in extreme or particularly serious situations.  This is only awarded in rare cases and the amounts of punitive damages are not as large as in some other countries (such as the United States).

If somebody has caused you losses by breaching their duties to you, you may have a claim for negligence.  We would be happy to discuss your options with you, contact our Disputes Resolution experts on 09 837 6890 to set up an appointment today. 

Has someone caused you a loss by breaching their duties to you?
If you would like to discuss whether you may have a claim for negligence, contact our Dispute Resolution experts today to set up an appointment.

email Nathan
+64 9 8376890

About the author

With a reputation for tenacity, expertise, and unwavering commitment to his clients, Nathan Tetzlaff is a formidable force in civil litigation. As a distinguished senior litigation lawyer at Smith and Partners, he provides valued insight to even the most complex
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