Article 2.4.3 Negligence

(a) Duty of Care:

A duty of care, for the purposes of the tort of negligence under this ICT Code, arises where a reasonable person could foresee that their conduct may cause harm to another, having regard to the relationship between the parties, the circumstances of the conduct, and the nature of the risk. A duty of care may also be determined using this tripartite test:

(i) Whether the harm was reasonably foreseeable;

(ii) Whether a relationship of sufficient proximity exists between the parties; and

(i) Whether it is fair, just, and reasonable to impose a duty in the particular circumstances.

(b) Standard of Care:

The standard of care, for the purposes of the tort of negligence under this ICT Code, is that of a hypothetical reasonable person in the same circumstances, considering the nature and magnitude of the foreseeable risk, the utility of the conduct, and the burden of taking precautions. Where relevant, the standard of care may reflect the specialised nature of ICT society, including the skill, knowledge, or responsibilities expected of actors engaged in specific sectors including (but not limited to) digital, specialist, professional, or high-risk activities. The assessment of breach may take into account:

(i) Accepted industry or professional standards;

(ii) Specific provisions of this ICT Code or applicable ICT Court decisions;

(iii) The foreseeability and severity of harm, weighed against the cost and feasibility of precautions.

(c) Elements of Liability for Negligence:

A person shall be liable in negligence only where the claimant establishes:

(i) The existence of a duty of care owed by the defendant to the claimant;

(ii) A breach of that duty by the defendant’s act or omission;

(iii) That the breach was the factual cause of the harm using a "but for" test or equivalent, and that the harm was not too legally remote to justify recovery; and

(iv) That the claimant suffered actual loss or damage which is legally recognised.

(d) Pure Economic Loss:

Pure economic loss shall not be recoverable in negligence unless the defendant owed a duty of care that arises independently of any physical damage or proprietary interest. Such a duty may exist where:

(i) The defendant has voluntarily assumed responsibility for the claimant’s economic interests and the claimant has reasonably relied on that assumption; or

(ii) A special relationship exists between the parties, such as in the case of negligent misstatement, where the defendant knew or ought to have known that the claimant would rely on the information provided.

(e) Policy Considerations:

The ICT Court may consider policy factors in determining the scope of duty or recoverability of damage in relation to the tort of negligence under this ICT Code, including concerns about indeterminate liability, floodgates, and economic efficiency.

(f) Reasonable Reliance and Misstatement:

Where the claim arises from negligent misstatement, the claimant shall demonstrate reasonable reliance on the statement and that the defendant knew or ought to have known that such reliance would occur.

(g) Loss of Chance:

Claims for loss of chance in negligence claims may be permitted in appropriate circumstances, particularly where the chance was real and substantial, and the loss can be assessed with reasonable certainty.

(h) Concurrent Liability:

Negligent acts may give rise to both tortious and contractual claims. In such cases, the claimant may elect their cause of action but shall not recover twice for the same loss. Tortious claims may also be subject to resolution by alternative mechanisms (e.g., Ombudsman process, arbitration, mediation) as provided in Part 4 of this ICT Code.

(i) Apportionment and Comparative Fault:

Where multiple parties contributed to the claimant’s harm, liability shall be apportioned in accordance with their respective degrees of fault, consistent with principles of comparative negligence.

(j) No Affirmative Duty Without Special Circumstances:

(i) A person shall not be liable in negligence for failing to act unless:

(ii) A duty arises under this ICT Code;

(iii) The person has voluntarily assumed responsibility; or

(iv) A special relationship or circumstance exists that creates a duty to take reasonable steps to prevent foreseeable harm.

(v) A person who in good faith, voluntarily, and without reasonable expectation of compensation or reward assists a person at risk of imminent harm is not liable for damages that result from the person's negligence in acting or failing to act while providing assistance, unless it is established that the damages were caused by the gross negligence of the person.

(k) Emotional Distress and Psychiatric Injury:

Claims for emotional distress or psychiatric injury shall be permitted where:

(i) The harm was reasonably foreseeable;

(ii) The claimant suffered a recognised psychological condition; and

(iii) A sufficient proximity exists between the parties or the event giving rise to the harm.

(l) Safe Harbours and Protections for Innovation:

The Operator may designate safe harbour protections under this ICT Code for activities carried out in good faith and in accordance with approved ICT Code standards, particularly in areas involving good faith attempts to aid another, innovation, platform governance, or public interest functions.

(m) Product liability negligence:

Negligence claims arising from harm caused by defective products are further addressed in Article 2.4.7 (Product Liability).

(n) Liability of Public Authorities:

The Operator or a body appointed by it shall not be liable in negligence for discretionary decisions involving resource allocation, policy judgments, or regulatory omissions unless the conduct was irrational, unlawful, or undertaken without regard to foreseeable harm.