Types of Torts under Australian Law

Transcription

1 Week 10: Chapter 12 Trt Law Trt law is cncerned with wrngful cnduct by ne persn that causes harm t anther Aim: t prevent peple frm ding wrng- Trt law encurages/discurages specific behaviur Plice desn't shw up thugh If u believe smene did wrng by yu, yu bring them t curt fr cmpensatins It is different frm Crim Law: Crim Law: It is public Law- enfrced by state in interest f public Trt Law: Private Law- arise between persns invled Cuncil des nt pave path well and u hurt yurself Trt law prvides a private right f actin fr cmpensatin; r fr an rder t stp cntinuing r threatened harm. Bth natural persns and crpratins are liable fr wrngful cnduct causing harm (s a grup/crpratin can als be made liable) There are a lt f frms f trt laws WE ONLY FOCUS ON THE TORT OF NEGLIGENCE Trt Descriptin Trespass t land/ chattels Prtectin f prperty frm interference Trts based n very specific kinds f psitive cnduct Liability fr a wide range f cnduct Assault and Battery Private Nuisance Deceit Defamatin Negligence Prtectin f persn frm vilence r threats f vilence Prtectin f the right t quiet, peace n nes prperty Prtectin against being deliberately misled Prtectin f persnal reputatin eg. When smene makes an UNTRUE PUBLISHED statement abut smene that ruins their rep Prtectin against many kinds f careless cnduct causing harm Types f Trts under Australian Law Trt f Negligence: Means a failure t take reasnable care t prevent lss r damage t thers that was freseeable, and shuld have been prevented This is a very brad cncept that applies t a great number f situatins Different types f cnduct and harm must be distinguished Depending n what type f cnduct and harm- there are different rules which apply t establish liability fr negligence

2 Categries f Cnduct: Psitive Act (Practive behaviur) Eg. Riding a bike while yu are eating- and yu run smene ver with yur bike A Failure t act (missin) Eg. Yur shp has a spill, yu see it but yu dn t d anything- smene slips Hawkins v Claytn (1988) 164 CLR 539 Making a statement/ giving advise/ failing give advice If yu give unreliable advice, peple can sue fr yur cnduct Rgers v Whitaker (1992) 175 CLR 479 Categries f Harm: Physical Injury Can claim fr medical expenses, lss f wages Mental health injury usually nt cmpensated because they cant put value n that harm- eg. Feeling sad Hle v Hcking [1962] SASR 128 Physical Damage t prperty Pure ecmnic Lss: Perre v Apand Pty Ltd (1999) 198 CLR 180 Hawkins v Claytn (1988) 164 CLR 539 Ø Brasier asked Claytn (a slicitr) t make a will- t make Hawkings the principle beneficiary f her huse Ø Braiser left will with Claytn Ø Braiser died but Claytn didn t didn t cntract Hawkins until 6 years later Ø By that time, the huse was wrth much less that it had been Ø Hawkin sued Claytn fr negligence Ø Claytn was liable because slicitr wed a duty t find Hawkins withut delay Ø Rgers v Whitaker (1992) 175 CLR 479 Ø Whitaker had an injury that left her blind in ne eye Ø She went t Rgers (eye surgen) wh did nt tell her f any risks invlved with peratin Ø Operatin perfrmed by it gave her a rare cnditin that led t blindness Ø Decided that the surgen did we the patient a duty f care Ø Reasn because the surgen is specialised in an area and s is expected t give reasnable care t an rdinary skilled persn Perre v Apand Pty Ltd (1999) 198 CLR 180 Ø Perre was a ptat farmer Ø WA prevented imprtatin f ptates grwn within 20km f an utbreak f ptates Ø Sparnn- farm clse t Perres fam planted seed ptates tht were infected with the disease Ø Sparnn bught the seed ptates frm Apand wh knew his seeds had the disease Ø Perre suffered pure ecnmical lss because he culd nt exprt his ptates Ø Decisin: Apand had a duty f care t perre Ø Reasn:

3 Perre belnged t a class f identifiable peple wh might suffer harm (farms clse t infected farm) Perre was dependent n Apand acting respnsibly (he culd nt prtect himself which made him vulnerable) Apand was aware f the risk f disease and Perre s vulnerability He culd have easily frseen the ptential harm Liability fr negligence: Need t establish: ü Defendant wed plaintiff duty f care & ü Defendant breached the duty f care & ü Causatin: Because f defendant s breach- plaintiff suffered lss/injury that wasn t t remte Ie. Need t shw causatin- that it was due t a direct result f the defendant s negligence In detail belw. [1] Establishing there was a duty f care 3 Factrs: 1. Must have been reasnably freseeable t a persn in the psitin f the defendant that injury r harm f sme kind wuld happen t smene As a result f cnduct engaged 2. Plaintiff must be a persn/ a member f a class f persns wh it was freseeable might suffer harm as a result f the defendant s cnduct Waverly Cuncil v Ferreira [2005] NSWCA Recgnised 'duty situatin r relatinship' must have existed Where defendant was required t prevent the freseeable harm t the plaintiff List f duty situatins recgnised by the curts Other relatinships can still be used but will need t be prved t judge ü Occupiers f prperty & persns entering the prperty ü Statutry authrities & the public Waverly Cuncil v Ferreira [2005] NSWCA 418 (One f the child wh climbs n cuncil building because f clse fence and kills himself. Father sues because he sees this and gets depressin) ü Rad users & ther persns n the rad ü Persns in a fiduciary relatinship, e.g. principals and agents ü Persns in a cntractual relatinship ü Manufacturers and cnsumers Dnghue v Stevensn [1932] AC 562. Fr Other types f relatinships: Curts weight up the different factrs: Cnsideratins f plicy and fairness The extent t which the harm was freseeable The ptential number f similar cases that might arise The likelihd f creating an unreasnable cmmercial burden by recgnising a duty f care. Situatins causing purely ecnmic lss A situatin must be shwn t exist where:

4 Plaintiff was vulnerable, dependent r pwerless AND Defendant was in a psitin f cntrl/pwer S plaintiff culd nly depend n the defendant t d the right thing Perre v Apand [1999] HCA 36; (1999) 198 CLR 180 [ptat ne] Wlcck Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16 In cases f Giving wrng infrmatin r adviceà causing pure ecnmic lss A duty f care nly exists if: The speaker shuld have realised that they were being relied n t give accurate infrmatin/advice The ther party might decide t act based n what they say It was reasnable fr the ther party t act n that infrmatin r advice given Shaddck & Assciates Pty Ltd v Parramatta City Cuncil (N 1) (1981) 150 CLR 225. Waverly Cuncil v Ferreira [2005] NSWCA 418 Ø Martin went t play in a park, climbed an adjacent fence t get ty n rf, satn skylight, fell and died Ø Father suffed depressin and chrnic stress and sued Waverly cuncil in Negligence that: Cuncil shuld have freseen that a parent might suffer mental harm if a child died while in the part as a result f the cuncil s failure t make park safe Ø Decisin: Under cmmnlaw and civil liability act, cuncil failed t d what was required t prevent freseeable harm Ø Reasn: Cuncil shuld have fressen that a child might climb nt rf and suffer sme srt f serius harm Wlcck Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16 Ø CDG: firm f engineers helped wner build a cmplex Ø Owner decided t nt have sil tests befre the engineers built place Ø Wlcck bught huse and vertime the sil began t settle- fixing it and the building is $$ Ø Wlcck claimed that CDG wed duty f care t avid ecnmic lss Ø Decisin: CDG did nt we a duty f care t Wlcck Ø Reasn: Wlcck was nt vulnerable - they culd have taken steps t avid the risk f harm- eg. Emplying engineer t inspect the building Shaddck & Assciates Pty Ltd v Parramatta City Cuncil (N 1) (1981) 150 CLR 225. Ø Shaddck- prperty develpment cmpany wanted t buy land and redevelp it Ø Cmpany slicitr telephned cuncil t see if there wuld be any rad wrk t affect the land Ø Tld there were nt- gt a certificate frm cuncil and was tld n the phne Ø Cuncil widened the rad and shaddck suffered financial lss- sued fr negligence Ø Decisin: Cuncil was negligent N duty f care arse frm advice given n the phne Advice given in the certificate was frmal and liable fr duty f care Ø Reasn: It is reasnable t state that the party wuld act n the advice that were given

5 Hle V Hcking Ø Plaintiff (passenger) suffered brain injuries in an accident because f defendant (driver) Ø Medical examinatin shwed that the accident cntributing t brain injury caused it t happen at that time Ø Hwever, the brain injury was ging t happen smetime later n withut the accident anyway Ø Decisin: Driver nly needed t pay damages fr harm that he caused due t his negligence Ø Reasn: Driver was nt respnsible fr hemrrhage that ccurred but needed t pay fr perid at which the hemrrhage was accelerated Accident made it ccur earlier [2] Establishing there was a Breach f Duty f Care Need t establish first whether the persn wh wed the duty f care tk reasnable steps t avid harm Asks: What steps wuld a reasnable persn take in the circumstances t avid the harm? They answer by thinking f fllwing: Hw likely was the harm? There is n need t guard against very remte pssibilities. Hw great wuld the harm be? Yu must guard mre carefully against the risk f very great harm. Hw difficult is it t avid the harm? Yu need t nly adpt practical measures Is it justified, in the circumstances, t take the risk f the harm? Fr example, the steps necessary t avid the harm may als pse a risk f harm. D plicy cnsideratins excuse the harm in questin? [3] Causatin The harm t the plaintiff must result directly frm the defendant s cnduct Asks: Wuld the harm have ccurred withut the defendant s cnduct? The plaintiff has the nus f prving, n the balance f prbabilities, any fact relevant t the issue f causatin. If ther events intervene as the prximate cause f the harm- the defendant is nt liable. If a plaintiff smehw cntributed t their wn harm (cntributry negligence) the lsses must be apprtined between the parties. Imbree v McNeilly [2008] HCA 40 (PTO)

6 Imbree v McNeilly [2008] HCA 40 Ø Imbree allwed McNeilly (unlicenced) driver t drive a 4WD Ø McNeilly lst cntrl f car, verturned, and Imbree was injured in the accident Ø Imbree wanted t sue McNeilly fr Negligence because breached duty f care Ø Decisin: McNeilly did we a duty f care t the passengers- even thugh they were nt fully licensed Imbree had cntributed t his wn injury due t wn negligence (cntributry negligence) S respnsibility f harm was shared amngst party Imbree was held respnsible fr 30% f the harm Remedies available in Trt Law: ü Objective: put the injured party in the psitin they wuld have been in but fr the cmmissin f the trt. (befre the act)- (diff frm AGL) ü Damages ü Injunctins