TORT LAW
Torts are an area of civil law that requires people to act responsibly
towards others. Sometimes actions by others lead to civil suits.
WHY IT IS IMPORTANT
 Imagine ordering a dessert and discovering that it contained
human faeces. This is what happened to a couple in Sydney in
2009. Serving any food that may result in food poisoning
(such as the insect in the bowl of soup shown below) should
definitely not be on the menu!
 When we buy food and drink we assume that it is edible. But
this is not always the case. The law of torts deals with a range
of conduct that causes injury to a person by breaching a
legally recognised right and gives that person a remedy, such
as payment of compensation .
 However, the defendant may be able to avoid or lessen
liability by the use of a legally recognised defence.
DO WE NEED A TORT OF PRIVACY?
 You may be surprised to know that not all rights are
recognised by tort law. For example, the right to privacy has
not as yet been established as a separate tort in Australia.
 In ABC v. Lenah Game Meats Pty Ltd [2001] HCA 63, the High
Court was asked to consider whether a media organisation
(the ABC) should be prevented from broadcasting film footage
of a brushtail possum processing facility that was taken
unlawfully by animal rights activists.
 Although the court found that in this case there was no
breach of privacy, the court did not rule out the possible
development of the tort of privacy in the future.
NEGLIGENCE
 Negligence is the most common and important type of tort
law heard by our courts. The law of negligence is concerned
with whether or not a person's conduct has been so careless
or faulty that he or she should be liable to injured parties for
acts or omissions (failure to act) .
 Is a school teacher who allows her 10 -year-old student to have
lighted candles in a tent acting as a reasonable person?
Clearly, such conduct or failure to act is careless to the point
of being negligent and a person injured as a consequence may
be entitled to initiate court action to recover compensation.
To succeed in court action the plaintiff must prove, on the
balance of probabilities, each of the following three elements
THE THREE ELEMENTS OF NEGLIGENCE
 The defendant owed a duty of care
 The defendant breached the duty of care
 The plaintif f suf fered loss as a consequence.
DEFINITIONS
 Duty of care: Duty of care is a responsibility to ensure the
safety of those who may be af fected by acts or omissions
 Negligence: Negligence is a tort. Negligence occurs when a
person breaches a duty to take reasonable care to avoid a
foreseeable risk, resulting in a person being injured or
suf fering a loss
DUT Y OF CARE - THE SNAIL IN THE
BOTTLE CASE — DONOGHUE V.
STEVENSON
 When does one person owe another person a duty of care?
 In August 1928, May Donoghue and a friend went to a café
where the friend purchased a bottle of ginger beer for Donoghue
to drink. The drink was in an opaque glass bottle, so it was
impossible to see the contents of the bottle from the outside.
Some of the ginger beer was poured over ice -cream and
Donoghue consumed it. When the rest of the drink was poured,
the decomposed remains of a dead snail slipped out. As a result
Ms Donoghue suffered from severe gastroenteritis and shock.
 Ms Donoghue wanted to sue Stevenson, the manufacturer of the
soft drink but, at the time of the appeal court hearing (1932), an
injured party could only sue if party to a contract. If Donoghue
had been the person who actually purchased the drink, she could
have sued in contract law. But, as her friend purchased the drink,
Donoghue could not rely on contract law to recover damages.
 Despite these legal dif ficulties, Donoghue took the radical
step of suing Stevenson. The question for the court was
whether or not there were any legal grounds upon which
Stevenson could be held responsible for the injuries to
Donoghue. The case went on appeal to the highest court in
England, the House of Lords. In a 3 –2 decision the court
determined that a manufacturer could be liable for damage
caused to the end-users of its products, even though the
injured person was not a party to a contract.
DID YOU KNOW
 Schools owe a duty of care to their students and must take
reasonable measures to prevent foreseeable risks of injury to
students. This includes taking steps to address bullying
behaviour once identified. In 2008, a 30 -year-old man brought
a case against the New South Wales Education Department,
claiming he suf fered six years of humiliation and isolation at
Tamworth High School while nothing was done, despite
repeated complaints. The psychological damage done af fected
the man's ability to work. He was awarded $470 000 in
compensation. (Gregor y v. State of New South Wales [2009]
NSWC 559)
 The legal reason for the court's decision in Donoghue v.
Stevenson (the ratio decidendi) was that a person who
manufactures products that cannot be inspected prior to use,
owes a duty of care to consumers of the product. One of the
judges in the case, Lord Atkin, made a famous statement that
is now known as the neighbour principle. In essence, Atkin
stated that:
 you must take reasonable care to avoid acts or omissions that you can
reasonably foresee would be likely to injure your neighbour
 your neighbour is any person who is closely affected by what you do or
fail to do.
 Thus, according to the neighbour principle, a duty of care is owed when
a reasonable person could foresee that damage may occur as a
consequence of the defendant's actions.
A BAD ITCH — GRANT V. AUSTRALIAN
KNITTING MILLS (1936) AC 85
 In 1931 , Dr Grant purchased two singlets and two pairs of
woollen underpants that were manufactured by Australian
Knitting Mills (AKM). Without first washing the garments,
Grant wore one pair for a week. He developed itchy patches
on both his shins which he treated with calamine lotion. The
next week he wore the second singlet and underpants for a
week. The skin irritation developed into acute dermatitis and
he was bed-ridden for 17 weeks. In an action against AKM, he
alleged the underwear contained a hidden defect, a chemical
residue, which caused the dermatitis. The precedent
established in Donoghue v. Stevenson was followed and the
court found that AKM had a duty of care to the wearers of its
garments.
BREACH OF THE DUT Y OF CARE
 Once the plaintiff has established that the defendant owed a
duty of care, the next step is to prove that the duty was
breached. This requires the plaintif f to prove :
 that the risk of injury was foreseeable
 that the defendant failed to exercise a reasonable standard of care in
the circumstances.
 Deciding whether the risk of injury was foreseeable and how
much care should have been taken in the circumstances is not
always straight forward. Consider a situation where a female
passenger in a car got out of the rear right door, but some of
her clothing became caught in the door. When the driver
heard the door close he slowly drove of f. The passenger was
dragged for some distance before the defendant heard her
calls and stopped. Would a reasonable driver foresee the
possibility that this injury would occur? What do you think?
 In measuring the standard of care owed in the particular
circumstances, courts consider a number of factors including:
 the likelihood of injur y . Was the risk of injury to the plaintiff
reasonably foreseeable? If risk of injury is so remote that a
reasonable person would ignore it, then the defendant may be
justified in disregarding it.
 the seriousness of injur y . If the potential risk is great, the
defendant should take greater precautions.
 the effort and cost involved to address the risk . A defendant
may be justified in not taking steps to address a risk if it is
not economically justifiable.
STANDARD OF CARE FOR DOCTORS ROGERS V. WHITAKER [1992]
 Maree Whitaker had been almost blind in her right eye for 40
years when she agreed to have eye surgery. Her ophthalmic
surgeon, Christopher Rogers, advised that the operation would
improve the sight in her right eye and its appearance.
Although the surgeon performed the operation with the
required skill and care, she lost the sight in her good (left)
eye as a result of a condition called sympathetic ophthalmia
and there was no improvement in her right eye. Consequently
she was left almost blind.
 The court was asked to consider whether the doctor was
negligent in failing to warn her that there was a one in 14 000
risk of developing sympathetic ophthalmia.
 The High Court held that by failing to advise Whitaker of the
risk, Rogers had breached the standard of care required in the
circumstances.
DID YOU KNOW
 Barry Watson was aged 12 years and two months when he
threw a home-made dart that ricocheted and pierced the right
eye of Susan McHale. The High Court in McHale v. Watson
(1966) 115 CLR 199 decided that the standard of care
required by Watson was that of a 12 -year-old. While an adult
might have appreciated the risk of throwing the dart the boy
should be judged by a lower standard.
LOSS SUFFERED
 Even if the duty of care owed was breached, unless the
plaintif f actually suf fered injury, he or she will not succeed in
a negligence claim. The plaintif f must show injury or loss and
that it was directly caused by the defendant's failure to
exercise adequate care.
 It is not always easy to show the exact cause of an injury, as
there is often more than one cause.
 Consider the hypothetical case of a girl who was injured in a
car accident as a result of a driver's negligence. While in
hospital, a friend gave her some heroin to
 199
 help ease her pain. Consequently, she became a heroin
addict. Ask yourself: did the negligent car driver directly
cause her drug addiction?
 In more dif ficult cases where causation is not clear, courts
ask whether the plaintiff would have been injured ‘but for’ the
defendant's conduct. In March v. Stramare (E & MH) Pty Ltd
(1991) 171 CLR 506, the defendant parked his truck in the
middle of a four-lane road in Adelaide, at night, to unload
goods. The plaintif f, who was very drunk, was injured when he
drove his vehicle into the truck. Even though the plaintiff was
drunk, the High Court found that ‘but for’ the truck driver
negligently parking in the middle of the road, the accident
probably would not have happened.
STANDARD OF CARE FOR SCHOOLS
 A Melbourne girl was in Year 9 when her eye was injured in a
schoolyard accident. The student, Tanjil Duan, was talking
with friends in a barbeque area in the school grounds when a
coin was accidently flicked into her left eye. As a result of the
incident, her eye was permanently impaired and she requires
treatment to avoid further loss of vision. After a six day trial
in the County Court, the jury found that the State of Victoria
(the school) was negligent in not providing teacher
supervision of the area. She was awarded $120 000 in
damages plus a further $4000 interest.
 1 . ) E x p l a i n w h a t i s m e a n t b y t h e ‘ n e i g h b o ur p r i n c i p le ’ .
 2 . ) I d e n t i f y w h o w o u l d b e yo u r n e i g h b o ur i n a n e g l i g e n c e c a s e i f yo u w e r e :





riding your bike on a footpath
riding a skateboard in a public skate park
a pilot flying a passenger plane
a cook at a fast-food restaurant
a tattooist.
 3 . ) I d e n t i f y w h et h e r t h e f o l l ow i n g s t a te m e n t s a r e t r u e o r f a l s e :
 The word ‘defendant’ refers to the person who is claiming his or her civil rights have been
breached.
 All a plaintiff has to do to win a case of negligence is to show that the defendant owed a duty
to take care.
 W h e n t h e f o r e s e e a b l e i n j ur y i s l i ke l y to b e s e r i o us , t h e g r e a te r t h e p r e c a ut io n s t h e
d e f e n d a n t m u s t t a ke .
 4 . ) Wo u l d yo u c o n s i d e r w h a t h a p p e n e d i n t h e f o l l ow i n g c a s e s a s b e i n g r e a s o n a b l y
f o r e s e e a b l e ? J u s t i f y yo u r r e s p o n s e .
 L o u i s e a g r e e d to g o w h i te - wa te r r a f t i n g w i t h f r i en d s . S h e w a s a s s u r e d b y t h e g u i d e
t h a t t h e a c t i v i t y w o u l d b e s a f e . A f l a s h f l o o d o c c ur r e d a n d t h e r a f t o v e r t ur n e d a n d s h e
drowned.
 A g o l f c l u b h i r e d a m o to r i s e d g o l f c a r t to a n e l d e r l y p a t r o n . W h i l e d r i v i n g t h e c a r t , t h e
p a t r o n c o l l i d e d w i t h a n o t h e r g o l fe r a n d b r o ke b o t h h i s l e g s . T h e i n j ur e d g o l fe r i s s u i n g
t h e g o l f c l ub .
 A r e s t a u r a n t s u f f e r e d a p o w e r o u t ag e f o r s ev e n h o u r s . D u r i n g t h a t t i m e , t h e f r e e z e r
s to p p e d w o r k i n g . T h e c h e f d ete r m in e d t h e m e a t w h i c h h a d b e e n f r o z e n w a s s t i l l
e d i b l e a n d c o o ke d a n d s e r v e d t h e m e a t t h a t ev e n i n g . L a te r, s ev e r a l c u s to me r s
s u f fe r e d f o o d p o i s o n i n g a n d c o n s i d e r e d s u i n g t h e r e s t a u r a n t .