BTF5955 · Business and Company Law
Negligence: Carelessly Causing Harm
Topic 2 is the tort of negligence — the law that makes a person liable for carelessly causing harm — and it is one of the two areas examined in the 30% Take-Home Assessment (the other is contract). You must be able to prove all four elements a plaintiff bears the onus on: duty of care, breach, causation and damage, and then address the defences. The landmark case is Donoghue v Stevenson, and in Victoria the tort is overlaid by the Wrongs Act 1958 (Vic).
What this chapter covers
- 01The four elements of negligence a plaintiff must prove: duty of care → breach → causation → damage
- 02Duty of care and the neighbour principle: Donoghue v Stevenson [1932] AC 562; reasonable foreseeability + salient features
- 03Established duty categories: manufacturer–consumer, driver–road user, employer–employee, occupier–entrant, professional–client
- 04Breach and the standard of the reasonable person; the calculus of negligence (Wyong Shire Council v Shirt; Wrongs Act 1958 (Vic) s 48)
- 05Causation: the 'but for' test (factual) plus scope of liability (Wrongs Act 1958 (Vic) s 51)
- 06Remoteness of damage: loss must be a reasonably foreseeable kind (The Wagon Mound [No 1])
- 07Defences: contributory negligence (damages apportioned) and voluntary assumption of risk (volenti, a full defence)
- 08Special damage categories: pure economic loss and pure mental harm attract extra control mechanisms
IRAC on manufacturer's negligence: a foreign object in a food product
- +1Issue. Is Golden Crust, the manufacturer, liable to Tomas, the ultimate consumer, in the tort of negligence — are duty, breach, causation and damage all made out?
- +2Rule. A manufacturer owes a duty of care to the ultimate consumer of its products where harm is reasonably foreseeable (Donoghue v Stevenson [1932] AC 562 — the neighbour principle; manufacturer–consumer is an established duty category). Breach is measured against the reasonable person using the calculus of negligence (Wyong Shire Council v Shirt (1980) 146 CLR 40; Wrongs Act 1958 (Vic) s 48); causation uses 'but for' plus scope of liability (s 51); damage must be a reasonably foreseeable kind of harm.
- +2Application — duty and breach. Golden Crust manufactures sealed food that reaches consumers with no reasonable possibility of intermediate inspection — the classic Donoghue situation — so it owes Tomas a duty. On the Wyong calculus, the probability of contamination from a worn machine is real, the potential harm (injury from a metal fragment) is serious, and the burden of adequate quality checks is modest against a mass-production process, so failing to catch the fragment falls below the reasonable-manufacturer standard: breach is established.
- +1Application — causation and damage; Conclusion. 'But for' the metal fragment Tomas would not have cracked his tooth, so factual causation is satisfied, and a cracked tooth needing dental treatment is a reasonably foreseeable kind of harm (not too remote). No defence arises — Tomas could not have inspected a sealed product, so there is no contributory negligence and no voluntary assumption of risk. Conclusion: all four elements are made out, so Golden Crust is very likely liable to Tomas in negligence.
Key terms
- Duty of care
- The first element: a legal obligation to take reasonable care not to cause reasonably foreseeable harm to one's 'neighbour' (Donoghue v Stevenson). Established categories (manufacturer–consumer, occupier–entrant, employer–employee) make the duty straightforward; novel duties turn on foreseeability plus salient features.
- Breach / calculus of negligence
- The defendant breaches the duty by falling below the standard of the reasonable person. The calculus weighs the probability of harm, the likely seriousness, the burden of taking precautions and the social utility of the activity (Wyong Shire Council v Shirt; Wrongs Act 1958 (Vic) s 48).
- Causation ('but for' + scope)
- The breach must have caused the harm: factual causation asks whether, 'but for' the breach, the harm would have occurred, and scope of liability asks whether it is appropriate to hold the defendant responsible for that harm (Wrongs Act 1958 (Vic) s 51).
- Remoteness of damage
- Even if caused, loss is recoverable only if it is of a reasonably foreseeable kind (The Wagon Mound [No 1] [1961] AC 388). Damage that is too remote is not compensable.
- Contributory negligence
- A partial defence: where the plaintiff's own carelessness contributed to the harm, damages are apportioned (reduced) in proportion to their share of responsibility rather than defeated outright.
- Voluntary assumption of risk (volenti)
- A full defence (volenti non fit injuria): the defendant must prove the plaintiff knew of, fully understood and freely accepted the specific risk. If made out, it defeats the claim entirely; it is harder to establish than contributory negligence.
Negligence: Carelessly Causing Harm FAQ
What are the four elements of negligence, and who has to prove them?
The plaintiff must prove, on the balance of probabilities, all four: (1) the defendant owed a duty of care; (2) the defendant breached it by falling below the reasonable-person standard; (3) the breach caused the plaintiff's harm ('but for' plus scope of liability); and (4) the plaintiff suffered recognised damage that was not too remote. The plaintiff bears the onus on every element; the defendant bears the onus of proving any defence. Missing any one element defeats the claim.
How do I apply the calculus of negligence to show breach?
The calculus (Wyong Shire Council v Shirt; Wrongs Act 1958 (Vic) s 48) weighs four factors to decide what a reasonable person would have done: the probability the harm would occur, the likely seriousness of that harm, the burden (cost/difficulty) of taking precautions, and the social utility of the risk-creating activity. If a cheap precaution would have prevented a real and serious risk, failing to take it is a breach. Apply each factor to the facts rather than reciting the list.
What is the difference between contributory negligence and voluntary assumption of risk?
Contributory negligence is a partial defence — the plaintiff was careless for their own safety, so damages are reduced (apportioned) but not eliminated. Voluntary assumption of risk (volenti) is a full defence — the defendant must prove the plaintiff knew of, understood and freely accepted the specific risk, and if made out it defeats the claim entirely. Volenti is much harder to establish, so contributory negligence is the more commonly successful defence.
Can Sia help me with negligence problems in BTF5955?
Yes, as a study aid. Sia can walk you through the four-element chain step by step, drill the Wyong calculus on fresh facts, show why Donoghue v Stevenson establishes a manufacturer's duty, and check whether you argued each element or merely asserted liability. It explains the method and checks your reasoning; it does not do your graded Take-Home or exam, and Monash academic-integrity rules apply.
Exam move
Negligence is one of the two Take-Home topics, so drill it until the four-element chain — duty, breach, causation, damage, then defences — is automatic. For each element, memorise the anchor: Donoghue v Stevenson for duty, the Wyong calculus (and Wrongs Act 1958 (Vic) s 48) for breach, 'but for' plus scope (s 51) for causation, and The Wagon Mound for remoteness. Practise on fresh scenarios by writing a visible IRAC answer that applies every element to the facts rather than reciting the rule, and always finish by testing the two defences. Keep straight who bears the onus — the plaintiff on the four elements, the defendant on any defence — because that direction is easy to reverse under pressure. When a step won't click, ask Sia to explain it a different way and to set you a fresh negligence problem; it teaches the method and checks your reasoning, and it never substitutes for your own graded work.
Working through Negligence: Carelessly Causing Harm in BTF5955? Sia is AskSia’s AI Business Law tutor — ask any BTF5955 Negligence: Carelessly Causing Harm question and get a clear, step-by-step explanation grounded in how BTF5955 is taught and assessed. Read this chapter free, then take your hardest questions to Sia.
