Fundamentals of Law (BL502)
Week 4
The Law of Torts
Fundamentals of Law (BL502)
Definition of Tort
 A civil wrong
 Primarily drawn from common law
Fundamentals of Law (BL502)
Aim of the Law of Torts
 To compensate a person who has suffered a
loss
 Only certain rights protected
 Physical safety – trespass to person\negligence
 Ownership of land and goods –
trespass\negligence
 Quiet enjoyment of land - nuisance
 Reputation - defamation
 Goodwill of a business – passing off
 Is there one broad law of Tort or many narrow
ones?
Fundamentals of Law (BL502)
Types of Liability
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Strict liability
Fault liability
No-fault liability
Vicarious liability
Fundamentals of Law (BL502)
Torts
The Law of Negligence
Fundamentals of Law (BL502)
Definition
 Conduct falling below the standard demanded for the
protection of others against unreasonable risk of
harm
 This means that a person can sue for negligence
when he is injured by another person who either:
 Did an act which a reasonable person in the circumstances
would not have done (an act of negligence); or
 Failed to do an act that a reasonable person in the
circumstances would have done (negligence by omission);
and that action or failure caused the injury.
Fundamentals of Law (BL502)
Elements of Negligence
 Defendant owed a duty of care to the plaintiff to take
reasonable care to prevent him for suffering injury,
loss or damage
 There was a breach of the duty of care by failing to
adhere to the standard of care expected
 The breach of duty caused damage to the plaintiff
 The plaintiff suffered damage that was of a kind
which was reasonably foreseeable i.e. was not too
remote
Fundamentals of Law (BL502)
Duty of Care
 The legal tests for duty of care differ
depending on the type of loss
 Physical
 Nervous Shock
 Financial
Fundamentals of Law (BL502)
Duty of Care – Physical Damage
Two part test:
 Reasonable foresesability test
 Proximity relationship test
Fundamentals of Law (BL502)
Reasonable foresesability test
 A reasonable person, in the circumstances of
the defendant, would have reasonably
foreseen that because of his actions there
was a risk of injury to the plaintiff, or to a
class of persons of whom the plaintiff was a
member
Fundamentals of Law (BL502)
Reasonable foresesability test (cont.)
 BEFORE the damage occurred, a reasonable
person could foresee SOME kind of damage
COULD occur
 Donoghue v Stevenson (S&OR p17)
 Grant v Australian Knitting Mills (S&OR
p23)
 Levi v Colgate-Palmolive (S&OR p19)
Fundamentals of Law (BL502)
Proximity Test
 There was sufficient proximity or closeness
between the plaintiff and the defendant
 This limits the Reasonable Foresesability test
 Used to limit duty of care on public policy
grounds
 The “neighbour” test
 Donoghue v Stevenson (S&OR p18)
Fundamentals of Law (BL502)
Proximity Test
Deane J in Jaensch v Coffey (P p 384) stated
that proximity could be established in one of 3
ways:
 Physical proximity
 Circumstantial proximity
 Causal proximity
Fundamentals of Law (BL502)
Duty of Care – Financial Loss
 Recovery of “pure economic loss” was
denied by the courts for many years as:
 No duty of care
 Damage too remote
 Donoghue v Stevenson was confined to
physical damage
 Economic effects may be more extensive
than physical effects
Fundamentals of Law (BL502)
Duty of Care – Financial Loss (cont.)
 Now allowed, but very narrow
 Hedley Byrne V Heller & Partners (S&OR
p49)
 Difficult to Develop tests to avoid too onerous
a duty
Fundamentals of Law (BL502)
Duty of Care – Financial Loss (cont.)
Some suggested limits;
 Whether plaintiff belonged to a determinate or
an indeterminate class
 Plaintiff’s vulnerability & dependency on
defendant
 Defendant’s knowledge of plaintiff’s
vulnerability
 Whether defendant assumed responsibility for
the risk being taken by the plaintiff
Fundamentals of Law (BL502)
Duty of Care – Financial Loss (cont.)
Cases:
 Perre v Apland (S&OR p21)
 Agar v Hyde (S&OR p21)
Fundamentals of Law (BL502)
Duty of Care
Some cases where a duty of care is readily recognised
 Employers owe a duty to employees to provide a safe
working environment
 Teachers owe a duty of care to their pupils
 Drivers owe a duty of care to others using the road
 Occupiers of land owe a duty to those on their land
 Professional persons owe a duty to their clients
 Manufacturers owe a duty to the ultimate consumer
 Bailees owe a duty to the bailor of goods
Fundamentals of Law (BL502)
Duty of Care
Parliaments have
 added occasions where a duty of care is
owed
 Clarified common law duties
 Restricted common law rights
 Altered the standard of care
Fundamentals of Law (BL502)
Breach of Duty
 Defendants will breach their duty of care if
they fail to live up the standard of care
expected in the circumstances
 An objective test
Fundamentals of Law (BL502)
Breach of Duty (cont.)
 Two stage process:
 Would a reasonable person believe that
the risk of injury to the plaintiff was
reasonably foreseeable; and
 Would a reasonable person have
responded to that risk at all and, if so, how.
 Then actions of defendant are compared with
what a reasonable person would\would not
have done
Fundamentals of Law (BL502)
Breach of Duty (cont.)
 The degree of care expected in any particular
case depends on all the surrounding
circumstances
 May vary according to:
 amount of risk, and
 seriousness of the injury foreseen
 If a person claims special skills then they
must live up to the standard of the reasonable
expert in that field
Fundamentals of Law (BL502)
The Standard of Care
Factors in assessing the standard of care:
 Probability of the risk occurring
 O’Dwyer v Leo Buring (S&OR p22)
 Bolton v Stone (P p391)
 Gravity of the injury
 Paris v Stepney (P p390)
 Rasbora v JCL Marine Ltd (S&OR p 23)
 Adelaide Chemical v Carlyle (S&OR p24)
Fundamentals of Law (BL502)
The Standard of Care
 Practicability and cost of eliminating risk
 Lattimer v AEC (P p393)
 Norton v Streets Ice Cream (S&OR p24)
 Age and capacity of the plaintiff
 Social value of defendant’s action
 Watt v Hertfordshire (P p392)
 Common practice
Fundamentals of Law (BL502)
S14b Wrongs Act (Vic)
(4) In determining if the duty of care [for Occupiers]
has been discharged consideration shall be given
toa) the gravity and likelihood of the probable injury;
b) the circumstances of the entry onto the premises;
c) the nature of the premises;
d) the knowledge which the occupier has or ought to
have of the likelihood of persons or property being
on the premises;
e) the age of the person entering the premises;
Fundamentals of Law (BL502)
S14b Wrongs Act (Vic) (cont.)
f) the ability of the person entering the premises to
appreciate the danger;
g) the burden on the occupier of eliminating the danger
or protecting the person entering the premises from
the danger as compared to the risk of the danger to
the person.