Negligence

   
 
Duties of Care

Negligence is simply defined as a lack of proper care and attention or carelessness. However, regardless of how careless a defendant was, he must first owe a duty of care to the plaintiff in order for the plaintiff to obtain a remedy. 

For a duty of care to exist, there is a requirement of foreseeability of damage to the plaintiff resulting from such carelessness, and whether there are any policy considerations that limit or deny the existence of any duty.

A builder owes a duty of care to the owners and subsequent owners to take care to build a reasonably sound structure, using good materials and workmanlike practices. This duty similarly applies to designers, engineers and sub-contractors also involved with the construction project. Territorial Authorities are under a duty of care when performing their building control functions to use reasonable care and skill. For example, if a council grants a building consent for certain building work when the council knew or ought to have known that the proposed work was flawed in design and unsafe, then it might be liable for damage caused as a result of the defective work. 
Elements of Negligence

In order to prove a claim of negligence the following must be established:
  1. A duty of care is owed by the defendant to the plaintiff (Foreseeable damages, and no policy considerations to limit or deny to the plaintiff)
  2. The defendant breached that duty of care
  3. The damage suffered by the plaintiff was caused by the defendant's breach of his duty of care
  4. The damage was a consequence of the breach of duty (i.e., was not too remote).


The rule in relation to negligence is that you must take reasonable care to avoid acts or omissions, which you can reasonably foresee would be likely to injure persons who are so closely and directly affected by your actions, that you ought reasonably to have them in contemplation as being so affected when you are directing your mind to the acts or omissions which are called into question. 
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Limitation periods

Any civil proceedings (which includes both negligence and contract) arising out of building work may not be brought 10 years after the act or omission occurred, whether or not any “damage” arising out of the act or omission has become apparent. For example, if defects in a house built in 1980 did not become apparent until 1991, it is too late to bring proceedings against the negligent builder or council who failed to inspect the property as required at the time the house was built. 

The normal statutory limitation period of six years still applies subject to the 10-year limitation period. The six-year period will begin to run from when the defects were reasonably discovered. For example, if the house was built in 1980 and the defects did not become apparent until 1982, the six-year limitation period would begin from 1982 and finish in 1988, before the 10-year “all-stop” limitation period expires.