Week 5 The Law of Torts Negligence Causation

Fundamentals of Law (BL502)

Week 5

The Law of Torts

Negligence

Causation


Elements of Negligence Duty of Care

Defendant owed a duty of care to the plaintiff to take reasonable care to prevent him from suffering injury

Standard of CareThere was a breach of the duty of care by failing to adhere to the standard of care expected

CausationThe breach of duty caused damage to the plaintiff

DamageThe plaintiff suffered damage that was of a kind which was reasonably foreseeable i.e. was not too remote


Causation A question of fact The “but for” test

“If you can say that the damage would not have happened but for a particular fault, then that fault is in fact a cause of the damage; but if you can say that the damage would have happened just the same, fault or no fault, then fault is not the cause of the damage” per Denning LJ in Cork v Kirby Maclean (P p398)


Causation (cont.) If a number of factors contribute to loss, the

“but for” test may not be conclusive Did the defendant’s act or omission

“materially contribute” to the defendant’s loss? March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 Bonnington Castings (P p 398)


Causation (cont.) Must prove each element of the causal link

Alexander v Cambridge Credit Corp Ltd (1987) 9 NSWLR 310

Kenny & Good v MGICA (S&OR p 49) Defendant will not be liable if the plaintiff’s

loss was inevitable Barnett v Chelsea & Kensington Hospital

(P p 398) Chapel v Hart (S&OR p26)


DamagePlaintiff must prove that Damage is of a kind recognised by law Damage was of a kind that was reasonably

foreseeable


The Law of Torts

Negligence

Damage


Damage Foreseeable Damage

Damage will be foreseeable when the risk of damage is a real risk which would occur to the mind of a reasonable man in the defendant’s position and which he would not brush aside as far-fetched


Damage (cont.) The Egg-shell Skull Rule

If damage is reasonably foreseeable then the defendant will be liable for the full extent of that damage even if the extent is greater than foreseeable

You must take your plaintiff the way you find him

Smith v Leech (P p399)


The Law of Torts

Negligence

Exclusion Clauses


Exclusion Clauses A carefully drafted exclusion clause can form part of

a contract and be effective in excluding liability for negligence if clearly bought to the attention of the plaintiff

Courts are biased against them Bias is less noticeable in commercial contracts Courts adopt a 2 step process

Has the exemption clause become a term of the contract?

If so, does it cover the breach in question?


Is It a term of the contract? Unsigned exemption clauses will be binding if

The innocent party was aware of it; or reasonable notice of it has been given to

the innocent party

before the contract is made.


What is reasonable notice What is reasonable notice depends on:

The nature of the document; The nature of the transaction; and The nature of the exemption clause.


What is reasonable notice (cont.) Would it be reasonable to expect the

document to contain an exemption clause (e.g. a receipt)

Is the transaction one where you would expect an exemption clause to exist

The wider the exemption the greater the steps to be taken to bring it to the attention of the other party


Does the Clause Cover the Breach? Courts will examine the clause carefully to determine

its effect and limit its scope where possible Generally, the Courts will give effect to the parties

intentions as evidenced by the natural and ordinary meaning of the words

There are 3 rules that courts use to limit exemption clauses: The Contra Preferendum rule Negligence Clauses The Four Corners Presumption


Contra Preferendum Rule Any ambiguities in the exemption clause will

be construed against the party seeking to rely on the clause


The Negligence Rule Liability for negligence may be expressly or

impliedly excluded but if the words could reasonably be applied to protect against some ground of liability other than negligence, then liability for negligence will not be excluded

To exclude liability for negligence, clear words are required


The 4 Corners Presumption The exemption clause will only cover matters

within the 4 corners of the contract Whether an event falls outside the contract

depends on the a reasonable person test – would a reasonable person aware of the terms of the contract conclude that the parties must have had the relevant event in mind in drawing up the contract.


Statutory Reforms In many cases, it is Illegal to attempt to exclude terms

implied by statute e.g. Trade Practices Act Attempting to exclude statutory liability (where not

permitted) may be misleading and deceptive conduct contrary to section 51 of the Trade Practices Act


Proving Negligence Burden of proof is on the plaintiff On the balance of probabilities


The Law of Torts

Negligence

Defences


Defences to Negligence Contributory Negligence Voluntary Assumption of Risk Novus Actus Interveniens Illegal enterprise


Voluntary Assumption of Risk Volenti non fit injuria Defendant must prove

Plaintiff knew of the risk Plaintiff fully appreciated the risk Plaintiff accepted the risk freely and willingly

Consent can be express or implied A total defence Burden of proof is on the defendant Rootes v Shelton (P p402)


Contributory Negligence If the plaintiff

failed to take precautions for his own safety Such failure contributed to his injury

Then the plaintiff’s compensation is reduced Damages are apportioned according to the

relative degree to which the parties negligence contributed to the loss

Partial defence Burden on the defendant


Measure of Damages The aim of damages is to put the plaintiff

back in the same position that he would have been but for the defendant’s negligence

For personal injuries claims the plaintiff must sue “once and for all” for all his losses both past and future. This is a calculated guess


Mitigation of Damages Plaintiff has a duty to mitigate losses

Cannot claim losses which could have been reduced or avoided by the taking of reasonable steps


Measure of Damages (cont.) Damages for personal injuries include

Special damages Medical expenses Past loss of wages

General Damages Loss of enjoyment of life Loss of expectation of life Future economic loss Pain and suffering


Measure of Damages (cont.) Damages for property damage

Usually measured by the difference in value before and after the accident

Consequential loss may be claimed


The Law of Torts

Negligence

Negligent Misrepresentation


Negligent Misrepresentation Most often results in purely 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


Negligent Misrepresentation (cont.) Now allowed, but very narrow Difficult to Develop tests to avoid too onerous

a duty


Financial LossPlaintiffs can now recover damages for purely

financial loss where: The plaintiff’s loss flows from damage to the

property of a third party and defendant knows that this particular plaintiff would suffer financial loss if the defendant damaged the third parties property Caltex Oil v The Dredge “Willemstad” (notes)

The plaintiff suffers loss as a result of the plaintiff being supplied defective products Junior Books Ltd v Veitchi Co Ltd (notes)


Financial Loss (cont.) A builder owes a duty to a subsequent purchaser

Bryan v Maloney (1995) 69 ALJR 375 Where:

plaintiff belonged to a determinate or an indeterminate class

Plaintiff’s was vulnerable & depended on defendant

Defendant knew of plaintiff’s vulnerability Defendant assumed responsibility for the risk

being taken by the plaintiffPerre & Ors v Apand Pty Ltd


Negligent Misrepresentation Hedley Byrne v Heller (1964)

A duty of care can be owed where a careless statement causes economic loss

To prevent too wide a duty being owed, it only applied where there was a “special relationship”

Week 5 The Law of Torts Negligence Causation

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