Fundamentals of Law (BL502) Week 4 The Law of Torts.

Fundamentals of Law (BL502)

Week 4

The Law of Torts


Definition of Tort A civil wrong Primarily drawn from common law


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?


Types of Liability Strict liability Fault liability No-fault liability Vicarious liability


Torts

The Law of Negligence


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.


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


Duty of Care The legal tests for duty of care differ

depending on the type of loss Physical Nervous Shock Financial


Duty of Care – Physical DamageTwo part test: Reasonable foresesability test Proximity relationship test


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


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)


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)


Proximity TestDeane 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


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


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


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


Duty of Care – Financial Loss (cont.)Cases:

Perre v Apland (S&OR p21) Agar v Hyde (S&OR p21)


Duty of CareSome 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


Duty of CareParliaments have added occasions where a duty of care is

owed Clarified common law duties Restricted common law rights Altered the standard of care


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


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


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


The Standard of CareFactors 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)


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


S14b Wrongs Act (Vic)(4) In determining if the duty of care [for Occupiers]

has been discharged consideration shall be given to-

a) 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;


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.

Fundamentals of Law (BL502) Week 4 The Law of Torts.

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