Module 9

Question 1

Tort defined

Answer 1

civil wrongs- conduct that is twisted or crooked causing loss or damage to another

Acts or omissions by a tortfeasor that are not authorised by law and infringe on another private or public rights.

The legal system does not penalise all conduct that causes a loss, those which are not malicious are not compensable.

Question 2

Torts different from contractual rights because

Answer 2

contracts arise from an agreement

Question 3

Tort compensatory objective

Answer 3

different from contract, aim to put plaintiff in the position they would be in had the tort not been committed

Question 4

Types of torts

Answer 4

Trespass to land or chattels
Assault and battery
Private nuisance
Deceit
Defamation 
Negligence

Question 5

Negligence

Answer 5

failure to take reasonable care to prevent loss, injury or damage to others who reasonably foreseeably would be injured had that care not been taken

Question 6

Negligence occurs by

Answer 6

conduct and the form that conduct takes will be applied to establish negligence

Question 7

Categories of conduct include

Answer 7

a positive act
a failure to act
making a statement or giving advice

Question 8

Rogers v Whitaker

Answer 8

Tort; negligence; duty of care
Facts; while a child Whitaker suffered injury that left her blind in one eye, at age 40 an eye surgeon advised her than an operation could improve its appearance and probably restore significant sight but did not warn her of risks associated. The operation caused her to develop a disease that led to blindness in other eye

Issue: had the defendant breached duty of care?

Decision: yes he is required as part of his duty of care to warn his patient of possible risks involved in treatment.

Question 9

Types of harm in negligence will not only establish neg but also determine adequate amount of compensation

Answer 9

Categories include

• physical injury
• physical damage to property
• purely economic loss

Question 10

Perre v Apand Pty Ltd

Answer 10

plaintiff contracted to sell potatoes, defendant apand supplied bad products caused infection in land belonging to plaintiffs neightbour , WA regulations meant potatoes grown close to infected land not allowed in
Plaintiff suffered great economic loss

Defendant owed a duty of care to not cause economic loss.

Question 11

Elements required for the tort of negligence

Answer 11

Negligence has three conjunctive elements

• a duty of care
• a breach of DoC
• loss , damage, injury as a result of that breach

Question 12

Establishing duty of care

Answer 12

was the harm of the kind they suffered foreseeable / real possibility

not unreasonable to impose a duty of care

Question 13

Reasonable foreseeability of harm

Answer 13

plaintiff must show that they belonged to the class of people whom the defendant should have regarded as being at risk

Question 14

To whom is a duty of care owed

Answer 14

1) Determine whether there was reasonably foreseeable risk of injury Sutherland case
2) Determine whether the case is closely analogous to other cases in which a duty of care has already been established
3) if not, look to the ‘salient features’ of the case to reveal a sufficiently close ‘neighbour relationship’ to warrant finding a duty of care
4) determine whether there are policy or other considerations that mitigate against finding that a duty of care exists

Question 15

When trying to prove a negligent misstatement, the plaintiff, in addition to establishing that a general duty of care arose in the situation, must also show that:

Answer 15

the maker of the statement ‘assumed responsibility’ for its accuracy, and

the plaintiff ‘reasonably relied’ on it.

Question 16

Shaddock v Parramatta City Council

Answer 16

Shaddock wanted to purchase property located in the area governed by the council. Shaddock’s solicitor both orally and by a written standard form, asked the council whether the property was the subject of any proposals to widen roads.
The council carelessly said there were no proposals when in fact there were such proposals. The value of the property was reduced by the proposal.

The court had to decide the circumstances in which a local government body could be held liable for information it supplied to the general public.

A person comes under a duty of care in relation to the provision of advice or information if he carries on a business or profession and in the course of it provides advice or information of a kind which calls for skill and competence or he otherwise professes to possess skill and competence and he provides advice or information when he knows or ought to know that the recipient intends to act or rely on it.

Question 17

A person does not breach a duty to take precautions against a risk of harm unless —

Answer 17

the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably have known); and

the risk was not insignificant;

in the circumstances, a reasonable person would have taken the precautions.

Question 18

To prove a breach of duty the plaintiff must prove two things

Answer 18

• that he or she was owed a particular ‘std of care’

- that the defendant failed to meet that required standard or ‘failed to take the appropriate precautions’

Question 19

In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things) —

Answer 19

(a) the likelihood of the harm occurring if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) whether the risk of harm was justified in the circumstances.

Question 20

Romeo v Conservation Commission of the Northern Territory

Answer 20

Romeo a 16 yr old girl, went with friends and after drinking some rum wandered near unfenced edge of cliff, fell and was injured

Had the commission breached a duty of care owed to Romeo?

The commission owed her a duty of care to Romeo however the risk of harm was so unlikely that failing to take action to avoid they had not breached their duty of care

Question 21

Third element- loss or injury

A plaintiff must prove three things:

Answer 21

that the loss , damage or injury suffered is recognised by law

That the loss, damage or injury was caused by the defendants negligence

that the loss damage or injury is not too remote.

Question 22

Four instances where the law will not recognise damage

Answer 22

where the damage suffered is the termination of some benefit flowing from criminal or fraudulent activity.

where the damage is too vague to be legally recognised.

where the plaintiff cannot prove that any loss, damage or injury was suffered at all.

where the plaintiff has experienced grief or sorrow. Cf psychiatric harm suffered.

Question 23

The court applies the “but for” test-

Answer 23

but for the defendants act, would the harm to the plaintiff have occurred

Question 24

The ‘reasonable foreseeability’ of harm

Answer 24

Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound No 2) [1966]

Question 25

Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound No 2) [1966]

Answer 25

defendant owned a freighter ship named the Wagon Mound which was moored at a dock. The plaintiff owned two ships that were moored nearby. At some point during this period the Wagon Mound leaked furnace oil into the harbour while some welders were working on a ship. The sparks from the welders caused the leaked oil to ignite destroying all three ships.

whether the defendant should be liable.

The Privy Council found that a reasonable person in the position of the ship’s engineer would have been aware of the risk of fire. Since the gravity of the potential damage from fire was so great there was no excuse for allowing the oil to be discharged even if the probability or risk of fire was low. A reasonable person, the Council held, would only neglect a risk of such a potentially great magnitude if he or she had a reason to do so

Decision in favour of plaintiffs/respondents

Question 26

There are two defences to a claim for negligence:

Answer 26

(i) Contributory negligence; and

(ii) Voluntary assumption of risk.

Question 27

A defendant can prove contributory negligence by showing that the plaintiff

Answer 27

breached a duty owed to the defendant; or

failed to exercise reasonable care for his or her own safety.

Note: under the civil liability legislation intoxication is considered to be contributory negligence and reduces a claim.

Question 28

Voluntary assumption of risk

Answer 28

If the plaintiff freely and voluntarily assumed the risk that caused the injury they should not be allowed to blame someone else.

Question 29

Tort law remedies

Answer 29

Damages are awarded to compensate for harm suffered.

The objective is to put the injured party in the position they would have been in but for the commission of the tort.

Question 30

The civil liability acts put limits on the

Answer 30

amount that can be claimed