Summary Guide for Chapter 6. Foundations of Australian Law. Fourth Edition. Callie Harvey

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1 Summary Guide for Chapter 6 Foundations of Australian Law Fourth Edition Callie Harvey ISBN: (print) ISBN: (epdf)

2 Foundations of Australian Law, Fourth Edition Chapter 6 Tort of negligence Introduction to negligence Negligent acts may be viewed in two ways: The omission of an act that would have been undertaken by a reasonable person if placed in the defendant s position. An act conducted by the defendant that would not have been conducted at all or in a different manner by a reasonable person if placed in the defendant s position. Before answering the case study identify the plaintiff and the defendant and decide whether the concept of vicarious liability applies. Elements of negligence To show that the defendant has been negligent the plaintiff must demonstrate on the balance of probabilities that: the defendant/tortfeasor owed the plaintiff a duty of care; the defendant/tortfeasor breached the duty of care and as consequence; and he or she suffered loss relating directly from the defendants breach. Read the problem carefully and address each of the elements by applying the legal concepts to the actual scenario that you are examining. Duty of care + Breach of duty of care + Loss or injury = Negligence The defendant owed the plaintiff a duty of care To successfully establish duty of care first identify whether the problem relates to a negligent act or other types acts including misstatements. This is important as different criteria needs to be satisfied for negligent misstatements. Duty of care and negligent acts The court carefully examines the evidence and uses two tests to assist in deciding whether the defendant owed a duty of care. Reasonable foreseeability test: The defendant will owe a duty of care to the plaintiff if it is reasonably foreseeable that the defendant s act or omission to act would have caused harm to people in the same circumstances as the defendant. To prove foreseeability, the following questions must be answered: Would a reasonable person in the defendant s position have foreseen, i.e. predicted, that their conduct could cause the loss or harm to people, i.e. neighbours, in the plaintiff s position? The plaintiff must be a member of a class within the range of foreseeability. 2 Copyright 2013 Tilde Publishing and Distribution

3 Summary Guide Who might possibly be put at some risk of injury or loss if the defendant failed in some way to take reasonable care and act within the standards of behaviour considered as normal by the community? Case example: Hay (or Bourhill) v Young [1943] AC 92 Case example: Donoghue v Stevenson [1932] AC 562 Vulnerability test: Vulnerability refers to whether a position of reliance existed between the plaintiff and the defendant. To prove vulnerability, the following questions must be answered: Regarding the defendant: Was the defendant in a position of power through resources, knowledge, legal duty, or rights? Did the defendant know that he/she was in a position of power? Regarding the plaintiff: Was the plaintiff in a position of powerlessness and thus vulnerable? Was the plaintiff in a position where he/she relied on the defendant to protect his/her vulnerability? Case example: Perre v Apand Pty Ltd [1999] 164 ALR 606 The defendant will owe a duty of care to the plaintiff if the act or omission to act was foreseeable and the plaintiff was reliant on the defendant. Duty of care and other types of acts Duty of care and the positive infliction of physical injury In the case of positive infliction of physical injury, the existence of duty of care is based on whether the injury suffered by the plaintiff was reasonably foreseeable. Case example: Lynch v Lynch [1991] 25 NSWLR 411 Case example: X and Y v Pal [1991] 23 NSWLR 26 Duty of care and liability for omission to act Duty of care and liability for omission to act has arisen in the following cases: Case example: Rogers v Whitiker [1992] 175 CLR 479 Doctor patient relationship Case example: City Council v Lutz [1988] 12 NSWLR 293 Parramatta Council public relationship Case example: Pyrenees Shire Council v Day [1988] 192 CLR 330 Parramatta Council public relationship Copyright 2013 Tilde Publishing and Distribution 3

4 Foundations of Australian Law, Fourth Edition Case example: Crimmins v Stevedoring Ind. Finance Committee [1999] 167 ALR - Statutory authority public relationship Case example: Commonwealth of Australia v Introvigne [1981] 150 CLR 258 at 69 - School authority student relationship Duty of care in cases of pure economic loss Cases of pure economic loss occur in circumstance where the plaintiff suffers no personal injury or physical damage to their property, but experiences a financial loss flowing from the defendant s negligence. Economic loss flowing from damage caused by negligent misstatements To successfully establish duty of care and thus liability where the problem involves negligent misstatements the following criteria are justified: The plaintiff relied upon the statements made by the defendant. The plaintiff suffered economic loss as a direct consequence of reliance on the misstatements made by the defendant. It was reasonable under the circumstances for the plaintiff to rely on the statements made by the defendant. It was reasonable to assume that the defendant knew or ought to have known that that the plaintiff would have replied upon the statements. The statements were in relation to serious matter. The defendant carelessly made the statement. Case example: Shaddock v Associates v. Parramatta City Council [1981] 150 CLR 225 Economic loss flowing from damage to property of a third party Economic loss may arise due to damage caused to property by a third party. Case example: Caltex Oil (Aust.) Pty. Ltd. v The Dredge Willemstad [1976] 136 CLR 529 Economic loss flowing from damage caused by professional negligence Professionals may be found liable for economic loss suffered by the plaintiff due to either negligent performance or negligent omission. Case example: Twidale v. Bradley [1990] 2 Qd R464 Economic loss arising from a defective product Case example: Grant v. Australian Knitting Mills [1936] AC 85 Economic loss arising from a defective structure Case example: Bryan v. Maloney [1995] 69 ALJR Copyright 2013 Tilde Publishing and Distribution

5 Summary Guide The defendant breached his duty of care Standard of care To prove standard of care, the following must be answered: Did the defendant owe a standard of care to the plaintiff? What level of care, i.e. what standard of care, did the defendant owe to the plaintiff? What would a reasonable person, i.e. someone in the same field as the defendant, do in the circumstances of the defendant s position? Breach of the standard of care To prove that the defendant breached the standard of care owed, the following must applied to the problem under consideration: Likelihood of injury - How possible was the injury? - Could the risk be disregarded? Gravity of injury - What was the gravity of injury? - Was the plaintiff engaged in a dangerous activity? What was it? - Did he or she take precautions? Case example: Paris v Stepney Borough Council [1951] AC 367 Effort Required to remove the risk of injury Loss or injury - Could the plaintiff reasonably foresee the injury or loss? - Did the defendant fail to act as a reasonable person would have acted to prevent this reasonable risk of injury or loss? - Was the risk of injury or loss insignificant, i.e. not important? - Did the defendant take reasonable precautions to remove this risk of injury? This principle was firmly established in the case: Kosciusko Thredbo Pty. Ltd. v Smith [2001] NSW CA 355. The loss suffered by the plaintiff flowed directly from the breach of the defendant s duty and it was not too remote. Causation To prove that the defendant s actions or failure to act caused the damage suffered by the plaintiff, the but for test is used. The but for test: Copyright 2013 Tilde Publishing and Distribution 5

6 Foundations of Australian Law, Fourth Edition Did the defendant s act or omission to act cause the injury or loss that has been suffered by the plaintiff? Would the plaintiff s injuries have been suffered but for the defendant s breach? Remoteness Case example: Alexander v Cambridge Credit Corporation Ltd. (in Rec) [1987] 9 NSWLR 310 To prove that the injury or loss was not too remote the following questions must be answered: Was the injury/loss unforeseeable? Should the reasonable person have foreseen the type of damage that would result and the way in which would be caused? Remedies Case example: Overseas Tankship (UK) Ltd v Marts Dock & Engineering Co [1961] AC 388 To fully answer a problem where the three elements have been established, you must identify the type of damages that are likely to be awarded to the plaintiff. Types of damages awarded in negligence include: special damages; and general damages. Defences In some instances, the defendant may be able to show that the loss or injury was not suffered solely due to his or her carelessness but the plaintiff also had some involvement. Assess the circumstances of the problem, and conclude your answer with a discussion as to whether the defendant can plead any of the following defences. Contributory negligence To prove contributory negligence, the defendant must establish the following: that the plaintiff failed to take reasonable care; and that this failure to take reasonable care contributed or added to the act which caused the loss or injury. Case example: March v. E & MH Stramare Pty. Ltd. [1991] CLR 506; 99ALR423 6 Copyright 2013 Tilde Publishing and Distribution

7 Summary Guide Volenti non fit injuria Volenti non fit injuria is a complete defence and applied to circumstances where the plaintiff had acknowledged or assumed the risk and accepted it. To prove voluntary assumption of risk, the defendant must prove all of the following: that the plaintiff had a good level of knowledge of the risk associated with the activity that he or she was undertaking; that the plaintiff understood and accepted that risk; and that the plaintiff voluntarily participated the activity involving the risk. Case example: Insurance CMR v Joyce [1948] 77 CLR 39; [1948] ALR 356 Case example: Rootes v. Shelton [1967] 166 CLR 383; [1968] ALR 33 Copyright 2013 Tilde Publishing and Distribution 7

the defendant owed the plaintiff a duty of care; the plaintiff suffered damage as a result of the defendant's breach of duty (causation); and

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