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Tort of negligence

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defamation. nuisance. trespass. Plaintiff. person experiencing loss/injury. Tortfeasor. person who commits tort causing damage to plaintiff or their property ... – PowerPoint PPT presentation

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Title: 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
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