My friend is claiming that I was negligent by leaving a hose lying across the garden path which she then tripped over and broke her ankle. I don't think it's entirely my fault. She was carrying a large box of cupcakes at the time and she wasn't watching where she was going. I think it's her fault. Anyone who was paying attention would have seen the hose. Will I have to defend myself in court?
Lawyer Answers (1): Answers from lawyers are general preliminary responses. They are not formal legal advice and cannot taken account of all your circumstances. They do not create a lawyer–client relationship.
Answer by Neha Sharma, Hillsdale 2036 NSW
- In court proceedings for negligence your friend will have to prove the case against you on the balance of probabilities. That means she must satisfy the court that you were negligent in leaving the hose lying across the garden path.
- You can challenge her arguments by bringing evidence and making submissions that attempt to show the court that there has been no negligence at all. This is not a defence. It is simply challenging the evidence that your friend brings before the court in the hope that she will not be able to prove her case.
- However if she succeeds in convincing the court that you have been negligent then you may want to try to prove that you have a defence. You are not obliged to argue a defence. It is up to you. If you choose to argue that you have a defence against the case of negligence it is your responsibility to prove it.
- Under tort law only specific defences are available to the defendant. These include contributory negligence, voluntary assumption of risk, the plaintiff’s unlawful conduct or that the plaintiff delayed in initiating proceedings (statute of limitations).
- Your best options in this situation might be contributory negligence and obviousness of risk.
- Whether this will be accepted by the court will depend on many, many factors specific to your circumstances. It is always recommended that you seek out a local lawyer who can give you advice on your prospects of launching any defence.