Course Name
The Law of TortsNegligence
(CACL- Chapter 15)
Welcome!
TO T H I S L E S S O N
LEARNING INTENTIONS
Following this lesson you will understand:
I - Tort Law, What it is?
II - Difference between tort law and contract law/consumer law
III - The Tort of Negligence
This lesson examines the law of Torts.
Tort is a Latin word meaning “twisted” or “wrong”.
￭ Duty of care
￭ Breach of the Duty of Care
￭ Damages - Causation and Remoteness
WELCOME!
￭ Defences
(CACL 15.10)
Definition - Tort
The “wrong” here is a civil wrong and it is a “wrong” because
the courts or parliament – not the parties – has created a
“right” that a defendant’s wrongful conduct has infringed.
The person who has committed the tort or wrong
shall compensate the person against whom the
Tort - protects rights
that exist outside any
agreement
tort/wrong has been committed. i.e. whose rights
have ben infringed.
(CACL 15.10)
3
Comparing Tort with Contract and Criminal Law
Contract
• Rights and duties derived
Tort
• rights are given to
Criminal Law
• a person found guilty will
from voluntary
individuals by law
receive criminal sanction
agreements between the
(common law and
(fine/imprisonment/some
parties.
statute)
other penalty)
• innocent party
compensated by the
party breaching the
contract.
(CACL 15.20)
• innocent party
• the victim will not receive
compensated by the
any compensation from
person committing the
the guilty person.
wrong i.e infringing the
rights
4
Comparing Tort with Contract and Criminal Law
professional services
assault
/false
(solicitor/accountant <> client -
imprisonment/
CRIME
(CACL 15.20)
reasonable care
TORT
CONTRACT
TORT
5
Examples of Torts
false
trespass to
imprisonmen
land/goods
t
TORTS
defamation
(CACL 15.40)
negligence
6
Tort of Negligence: scope
• The tort of negligence determines legal liability for careless actions or inactions that cause
loss or damage.
• Negligence - careless behaviour- conduct that falls below an acceptable standard.
• standard - that applies to all of us
• purpose - protect us from an unreasonable risk of harm
• How to determine - unreasonable risk of harm?
• through Rules- (devised by courts and parliaments)
(CACL 15.40)
7
Tort of negligence
• –Modifying common law principles
(duty / breach / damage)
• –Restricting plaintiff’s rights to
recover in particular categories – eg.
•STATUTE
Effect -limit the scope
(CACL 15.50)
professionals / volunteers / public
authorities
• –Placing caps on general or non-
of potential liability for
economic damages and for loss of
negligence by:
future earnings
8
Negligence
criteria
Does the Defendant owe a
duty of care towards the
plaintiff ?
If yes, has the Defendant breached
that duty of care
If yes, has the Plaintiff suffered
damage?
Are there any defences?
9
The law of Negligence was
born
Donoghue v. Stevenson - Read CACL 15.70 and see the video
In its modern form the tort of negligence began on 28 August 1928
in a café in Paisley, Scotland.
(CACL 15.70)
10
Establishing a duty of care – Donoghue v Stevenson
Lord Atkin’s test limits a defendant’s
duty of care to his/her ‘neighbour’ those who are - “so closely and directly affected
by my act that I ought reasonably to have them in
contemplation as being so affected when I am
directing my mind to the acts or omissions which
are called in question”
Also known as reasonable foreseeability of harm test
(CACL 15.70)
11
Negligence
criteria
Does the Defendant owe a
duty of care towards the
plaintiff ?
If yes, has the Defendant breached
that duty of care
If yes, has the Plaintiff suffered
damage?
Are there any defences?
(CACL Fig 15.2)
12
Establishing a duty
of care
-courts -limit the scope of
duty where damage is other
than physical damage and scope
•REASONABLE FORSEEABILITY
of breach
- may have wide scopeindeterminate liability (time,
losses, people affected)
•STATUTE
-limit
plaintiff's
right
to
recover damages in certain
situations
volunteers,
(professionals,
public
authorities)
(CACL 15.50)
13
First Australian case to apply neigbour principle
•Grant v Australian Knitting Mills
Grant purchased a pair of woolen underwear from a retailer and
Facts
developed a severe case of dermatitis and spent over 17 weeks in
hospital. This was caused by an excess of sulphites in the underwear.
Grant sued the manufacturer.
Issue
Did the manufacturer owe a duty of care?
Decision
Yes
(CACL
(CACL 15.90)
3
14
Establishing a duty of care
REASONABLE FORSEEABILITY
ESTABLISHED CATEGORIES
- necessary but may exposed
defendants
to
indeterminate
liability
NOVEL CATEGORIES
(CACL 15.100)
15
Duty of Care (Established categories)
Most (90%) negligence
manufacturers
actions are based upon
motorists
occupier of premises
an established duty of
care - courts apply
precedent to determine
reasonable forseeability:
see the recognised
relationships
employer- employee
(CACL 15.100)
Banks and Financial Insts
local council
16
ESTABLISHED CATEGORIES
Most (90%) negligence
actions are based upon
an established duty of
architect
engineer
accountant
care - courts apply
precedent to determine
reasonable forseeability:
see the recognised
relationships
doctor
health-therapist
lawyer
Examine separately the duty of care owed in professional relationships - NEXT LECTURE
(CACL 15.100)
17
Duty of Care (Novel categories)
•Tame v New South Wales
Mrs Tame - car accident - police officer incorrectly reported blood
Facts
alcohol reading (0.14) - Mrs Tame my reputation in the community
tarnished - psychotic depressive illness sued police in negligence.
Issue Did the police owe Mrs Tame a duty?
Decision
no duty of care owed
•a matter of fact and
Reason •a reflection of community values
((CACL 15.130)
3
18
Duty of Care (Novel categories)
•Osborne Park Commercial Pty Ltd v Miloradovic
Facts
Issue
Plaintiff was on his way to collect his purchased goods from HARVEY NORMAN
pick up point. Plaintiff crushed between his car and truck in the access way
HARVEY
NORMAN
which was adjacent to the pick up point.
Did HARVEY NORMAN owe a duty of care to the plaintiff.
• a mere foreseeability of harm is insufficient to determine duty of care where
injury is inflicted by third person.
Decision •
additional factors need to be looked into - physical and commercial proximity
Yes - duty of care owed
Reason HARVEY NORMAN- familiarity with access to bay; reliance by customers of a safe place to collect
goods; control over the manner and circumstances of the collection
(CACL 15.150)
3
19
1. Duty of Care ( acts causing physical or property
loss)
Generally not
difficult to
establish a duty of
care where an act
causes direct
physical loss or
damage
Australian Safeway v Zaluzna CACL - 15.180
(CACL 15.180-200)
Modbury v Anzil CACL - 15.200
3
20
2. Duty of Care ( acts causing mental harm)
Common Law - reluctant to
recognize pure psychiatric
injury (independent of
physical injury) as a loss that
gives rise to a duty of care.
Chester v Waverly City Council CACL –
Foot Note 13 , pg 365
(CACL 15.40)
(CACL 15.130)
Annetts v Australian Stations CACL - 15.220
3
21
3. Duty of Care and liability for omissions
See general principle – no duty to act except where there is a positive duty to act –
parent/child, life saver/swimmer, teacher or school authority/student, occupier/visitor
Rogers v Whitaker CACL 15.250
(CACL 15.130)
CAL No. 14 v Motor Accidents Board CACL 15.270
3
22
4. Negligent acts causing pure economic loss (CACL
5. Negligent statements causing pure economic loss
(CACL
(CACL 15.40)
(CACL 15.130)
focus later
in this topic
3
23
Negligence
criteria
Does the Defendant owe a
duty of care towards the
plaintiff ?
If yes, has the Defendant breached
that duty of care
If yes, has the Plaintiff suffered
damage?
Are there any defences?
24
Step 2:Breach of the duty of care
Section 48(1) A person is not negligent in failing to take precautions against a risk of harm
unless:
•The common law answer involved a two-step test:
•Would a reasonable person in the defendant’s
position have foreseen that their acts (or
omissions) posed a risk of harm to the plaintiff?;
and
•Was the defendant’s response to the risk
reasonable? Applying the “negligence calculus (laid
down in the case of Wyong Shire Council v Shirt
(also known as Wyong factors”)
(a) The risk of injury was foreseeable (that is, it is a risk of which the person knew or ought
to have known); and
(b) The risk was not insignificant; and
(c) In the circumstances, a reasonable person in the person’s position would have taken
those precautions
2.Section 48(2) – “the negligence calculus” – In determining whether a reasonable person
would have taken precautions against a risk of harm the court is to consider, inter alia, the
following:
(a) The probability that the harm would occur
(b) The likely seriousness of the harm
(c) The burden of taking precautions (cost and inconvenience) to avoid the harm
(d) The social utility of the activity that caused the harm
(CACL 15.500; Fig 15.5 )
25
Step 2:Breach of the duty of care
Section 48(1)
So reasonableness is assessed against what a reasonable person in D’s position would have done in the same
circumstances:
• Not what the reasonable person, blessed with hindsight, could have been done (don’t examine a 2010 accident with 2021 spectacles)
• What a “perfect” person would have done
• Objective test – but certain characteristics or circumstances must be taken into account, including the skills/knowledge of the
defendant.
• E.g., Specialists have to act like reasonable specialists
•If D is a brain surgeon, she must have acted as a reasonable brain surgeon not an ordinary doctor.
•A tax adviser must act as a reasonable tax adviser not an ordinary lawyer
• Young children are expected to exercise only the standard of care of a child of the same age and experience
• Individual characteristics generally irrelevant – inexperience, ineptitude, impairment
(CACL 15.530)
26
Step 2:Breach of the duty of care
• Risk was reasonable foreseen
• But risk was not insignificant
• What would other ordinarily skilled
intensive care paramedic would have
done?
Whitton v Dexus Funds CACL 15.540
Queensland v Masson CACL
15.510
(CACL 15.510; 15:540)
27
Step 2:Breach of the duty of care
•If the risk was foreseeable (s 48(1)(a)) and was not insignificant (s 48(1)(b))
(slide 25)
we then go to the second limb and answer the overarching question:
would a person in D’s position have taken the precautions suggested by P?
•Second limb: The reasonableness of the response: s 48(2).[note - Statute
adopts the common law (Wyong) approach balancing the following four
factors
(a) The probability that the harm would occur
(b) The likely seriousness of the harm
(c) The burden of taking precautions (cost and inconvenience) to avoid the
harm
(d) The social utility of the activity that caused the harm
(CACL 15.40)
28
Step 2:Breach of the duty of care
Second limb: The reasonableness of the
response
(a) The probability of the occurrence of risk or injury
When a risk is small, a reasonable person can ignore it. What a
reasonable person must not do is create a risk that is substantial.
Consider probability of conduct as well as probability of
harm/injury.
RTA NSW v Dederer
(CACL 15.590-600)
CACL 15.600
Bolton v Stone CACL 15.590
29
Step 2:Breach of the duty of care
Second limb: The reasonableness of the response
(b) The gravity/seriousness of the harm if an injury occurs
The more serious the risk the greater need for a reasonable person to take precautions.
This has particular relevance where:
(i) the activity is dangerous, or
(ii) P has a particular vulnerability.
[Note again, time for assessing the risk is the time of the incident, not the time of the trial
(especially in medical cases)
Rogers v Whitaker CACL 15.250
(CACL 15.250; 630)
Paris v Stepney Borough Council CACL 15.630
30
Step 2:Breach of the duty of care
Second limb: The reasonableness of the response
(c) The burden of eliminating the risk (expense and inconvenience)
Need to balance risk and the measures necessary to eliminate the risk. The presence
or absence of practical precautions available to D is a significant factor.
P must prove precautions were available and, in failing to take such precautions, D
failed to act reasonably.
Graham Barclay Oysters v Ryan CACL 15.650
(CACL 15.650- 660)
Woods v Multi-Sport Holding Pty Ltd CACL 15.660
31
Step 2:Breach of the duty of care
Second limb: The reasonableness of the response
(d) The social utility of the defendant's conduct
Where the social utility of an activity is sufficiently high - a reasonable person would not
have taken precautions against the identified risk of harm (e.g. rescuing people from
impact of floods, cyclones, etc.)
Watt v Hertfordshire CACL 15.690
(CACL 15.40)
32
Negligence
criteria
Does the Defendant owe a
duty of care towards the
plaintiff ?
If yes, has the Defendant breached
that duty of care
If yes, has the Plaintiff suffered
damage?
Are there any defences?
33
Step 3: Damage – causation and remoteness
•Common
law requirements
a. Causation - The defendant’s negligence must cause (or materially contribute to) the damage
suffered by the plaintiff [P must prove that ‘but for’ the breach, the loss or damage would not
have occurred].
and
b. Remoteness - The damage must not be too remote from the defendant’s conduct – i.e. it
must be reasonably foreseeable.
(CACL 15.750 - 15.840) )
34
Step 3: Damage – a) causation b) remoteness
•Statutory requirements
• The statute requires that two questions (previously address at common law) should be kept separate:
i.
how did the harm occur; and
ii. whether legal responsibility should be attributed to the defendant
•Section 51 General principles
(1) A determination that negligence caused particular harm comprises the following elements:
•
(a) that the negligence was a necessary condition of occurrence of the harm (“factual causation”); and
•
(b) that it is appropriate for the scope of the defendant’s liability to extend to the harm so caused (“scope
of liability”).
(CACL 15.760)
35
Step 3: Damage – a) causation
Section 51 General principles
(1) A determination that negligence caused particular harm comprises the following
elements:
(a) that the negligence was a necessary condition of occurrence of the harm
(“factual causation”) [restatement of the common law ‘but for’ test of causation]
•Factual Causation: not generally an issue where P suffers physical injury. However
two situations prove difficult:
1. Omissions
2. Failure to warn (medical cases)
(CACL 15.7600)
36
Step 3: Damage – a) causation
1. Omissions- there is difficulty in determining
whether D’s negligence was the cause of injury
where D failed to act. The court has to determine
what would have occurred if D had acted
2. Failure to warn (medical cases)
Nouri v ACT CACL 15.830
Kazarov v State of Vic CACL 15.810
Read only if interested- not examinable
Strong v Woolworths CACL 15.770 Chappel v Hart 15.790
(CACL 15.760 -830)
37
Step 3: Damage – b) remoteness
•Section 51 General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) …….
(b) that it is appropriate for the scope of the liability to extend to the harm so caused (“scope of liability”).
(4) For the purposes of deciding the scope of the liability, the court is to consider…whether or not and why
responsibility for the harm should be imposed on the party who was in breach of the duty
(CACL 15.40)
38
Step 3: Damage – b) Remoteness
• It is only necessary that the kind of injury be reasonably
foreseeable:
• not the precise nature or extent
• Once the damage is reasonably foreseeable the extent of the
damage that actually results is irrelevant
Mt Isa Mines v Pusey (not in
Overseas Tankship v Mort (15.850 -860
Wagon Mound No. 1 &2)
(CACL 15.840-870)
Read onlyCACL)
if interested- not
examinable
39
Negligence
criteria
Does the Defendant owe a
duty of care towards the
plaintiff ?
If yes, has the Defendant breached
that duty of care
If yes, has the Plaintiff suffered
damage?
Are there any defences?
40
Step 4: Defences to negligence claims
4.1 contributory negligence
• P failed to take reasonable care for their own safety
• Damages that are assessed will be reduced to reflect the plaintiff’s own
Wrongs Act s 26
contribution to the damage
March v Stramere(15.900)
Alzawy v Coptic Orthodox Church
(15.910)
(CACL 15.890-910)
41
Step 4: Defences to negligence claims
4.2 voluntary non fit injuria
• Plaintiff fully aware of the risk &
• freely accepted.
• Note: NO Damages
(CACL 15.930)
42
Summary
In this lesson we examined
I - Tort Law, What it is?
Does the Defendant owe a duty of care towards
the plaintiff ?
II - Difference between tort law and contract law/consumer law
III - The Tort of Negligence
￭ Duty of care
￭ Established Categories
￭ Novel Categories
If yes, has the Defendant breached that duty of care
￭ Breach of the Duty of Care
￭ The risk was foreseeable
￭ The risk was Not insignificant
￭ Reasonableness of the response (Wyong factors)
If yes, has the Plaintiff suffered damage?
•
probability of risk
•
Gravity/seriousness of the harm
•
burden of eliminating the risk
•
social utility of the defendant's conduct
￭ Damages
Are there any defences?
•
Causation
•
Remoteness
￭ Defences
•
Contributory Negligence and Voluntary Assumption of risk
43