Tort of negligence

1
Chapter 6

• Tort of negligence

2
Chapter overview

• This chapter looks at the concepts of
• Defining tort
• Negligence
• Elements of negligence
• Common law principles
• Statutory provisions

3
Defining tort

• Four general areas
• negligence
• defamation
• nuisance
• trespass
• Plaintiff
• person experiencing loss/injury
• Tortfeasor
• person who commits tort causing damage to
  plaintiff or their property

4
Negligence

• Careless act that caused plaintiff injury/loss
• Viewed as
• act which would not have been done at all, or
  done differently by a reasonable person
• omission of an act failure to act by a
  reasonable person

5
Negligence

• Liability dependent on
• what a reasonable person would have
  foreseen/anticipated
• how a reasonable person would have acted in given
  circumstances
• Measured against standards of behaviour
  considered normal or acceptable by community

6
Negligence
7
Elements of negligence

• Plaintiff must prove on balance of probabilities
• defendant owed plaintiff a duty of care
• defendant breached this duty of care
• plaintiff suffered loss flowing directly from
  breach of defendants duty
• loss suffered was not too remote

8
Duty of care

• No single test to determine duty of care
• Two legal principles used
• reasonable foreseeability test
• vulnerability test

9
Duty of care

• Reasonable foreseeability test
• first legal principle applied to determine
  liability
• courts use objective test to determine whether
  defendant owed a duty of care
• test satisfied if a reasonable person would have
  been able to foresee the injury/loss suffered by
  plaintiff

10
Duty of care

• Vulnerability test
• whether a vulnerable relationship exists between
  plaintiff and defendant
• whether a position of reliance existed between
  plaintiff and defendant

11
Duty of care

• Positive infliction of physical injury
• whether the injury suffered was reasonably
  foreseeable
• Liability for omission to act

12
Duty of care

• Pure economic loss
• flowing from damage caused by negligent
  misstatements
• flowing from damage to property of a third party
• flowing from damaged caused by professional
  negligence
• arising from a defective product or structure

13
Breach of duty of care

• Second step in a negligence action
• Court must first identify standard of care owed
  before can establish if defendant breached that
  standard of care

14
Loss or injury

• Third step in negligence action
• Injury/loss must flow directly from defendants
  breach of duty of care
• Plaintiff must prove loss/injury caused by
  defendants actions or failure to act and was not
  too remote

15
Loss or onjury

• Court applies but for test to determine if a
  direct causal link between defendants breach and
  plaintiffs injury
• but for the breach, the injury would not have
  been suffered

16
Remoteness

• Once breach of duty established, must establish
  harm suffered not too remote (unlikely)
• Remoteness depends on knowledge of defendant

17
Remedies for negligence

• Plaintiff can claim special damages or general
  damages
• Special damages
• can be accurately calculated
• addressed only up to date of verdict
• General damages
• cannot be precisely calculated
• loss of enjoyment, pain and suffering

18
Defences for negligence

• Possible defences
• Contributory negligence
• plaintiff contributed/participated to the
  loss/injury suffered
• plaintiff also failed to take reasonable care
  against foreseeable risk
• Volenti non fit injuria
• voluntary assumption of risk
• plaintiff has acknowledged or assumed risk and
  accepted it

19
Statutory provisions

• Negligence law originally developed through
  common law
• More recently states and territories have passed
  Civil Liabilities and Wrongs Acts
• see Table 29
• Enacted to codify civil law principles

20
Statutory provisions

• Duty of care
• Causation
• Assumption of risk
• Professional negligence
• Volunteers
• Trade practices

• Contributory negligence
• Intoxication
• Mental harm
• Public authorities
• Damages
• Legal costs

21
Chapter review

• In this chapter you have looked at
• Defining tort
• Negligence
• Elements of negligence
• Common law principles
• Statutory provisions