Topic outcomes
On completion of this topic, you should be able to:
◦ Describe the law of torts, its general principles and the
statutes of limitations for tort actions
◦ Explain negligence and the introduction of civ
...
Topic outcomes
On completion of this topic, you should be able to:
◦ Describe the law of torts, its general principles and the
statutes of limitations for tort actions
◦ Explain negligence and the introduction of civil liability
legislation by the federal and NSW governments.
◦ List and explain the necessary elements required to
establish negligence
◦ Identify the defences a defendant can raise in an action for
negligence, and their potential impact on damages paid.
2Introduction
◦ The law of tort is an area of the law that often only becomes relevant
after the happening of a ‘loss-making event’.
◦ This loss can be an economic or physical loss.
◦ The range of interests which the law of tort protects includes:
◦ liability for breach of duty to take reasonable care;
◦ liability arising out of occupation or possession of property;
◦ direct interferences with person, property or goods of another;
◦ liability for defamation;
◦ interference with contractual relations;
◦ misrepresentation and ’passing off’
3General principles of tortious
liability
◦ A tort is a ‘civil wrong’ in the form of an act or omission not
authorised by law, for which a civil right of action for damages may
arise.
◦ The law of torts is concerned with injury to person (physical or
mental) or to property.
◦ The law of torts works in conjunction with other areas such as
criminal law and contract law.
◦ The plaintiff commences the action and must prove on the balance
of probabilities that their version of the facts is more believable.
4Criminal law and contract law
distinguished from tort law
5Range of remedies in tort law
◦ Tort law is concerned with remedies and provides compensation
for the injured party, usually in the form of common law
damages.
◦ The remedy is not always in the form of damages, or monetary
compensation, because damage suffered takes many forms
apart from physical injury and in some circumstances may only
be threatened.
◦ In some instances, such as damage to reputation (defamation),
the remedy sought is an injunction or a combination of
injunction and damages.
6Compensation outside tort law
◦ It should not be assumed that the only compensation available to
an injured person will come from a remedy in the law of torts.
◦ There may be a remedy in contract law for a breach of the term
of the contract.
◦ There may be compensation under victims of crime legislation.
◦ Other forms of compensation that provide alternative protection,
and do not depend on proof that a tort was committed, exist in
statutory schemes, such as workers’ compensation schemes and
the National Disability Insurance Scheme.
7Time limits for tort actions
◦ There are time limits set for an action in tort by the statutes of
limitations in all of the states and territories.
◦ An injured party should take legal action within a certain time
after the tort:
◦ otherwise the action may become ‘statute-barred’;
◦ the onus is on the defendant to show the plaintiff’s claim
falls outside the time allowed;
◦ limitation legislation in all jurisdictions gives the court
discretion to extend the limitation period;
8NEGLIGENCE
9Negligence
◦ The modern version of negligence was established in 1932 in the decision
of Donoghue v Stevenson [1932]
◦ Negligence has become the most important area of tort law.
◦ Negligence has impacted significantly on business and the community.
◦ In 2002, the Review of the Law of Negligence Report (the ‘Ipp report’)
resulted in all Australian jurisdictions making statutory changes:
◦ as to what had to be established by the plaintiff to succeed in a
negligence claim;
◦ making it more difficult for a plaintiff to succeed in a negligence claim
◦ also restricting the right of the plaintiff to recover damages.
10Donoghue v Stevenson [1932]
AC 562
A friend took May Donoghue out for a treat to the Wellmeadow Café in Paisley,
Renfrewshire in Scotland, where she ordered an Scotsman ice cream float, with
ginger beer. Café owner Francis Minghella brought the ice cream and ginger beer to
the table and poured some of the drink over the ice cream from an opaque glass
bottle, labelled with the name of the manufacturer, local David Stevenson
After she finished the ice cream Donoghue poured the balance of the ginger beer
into a glass. When she did so, the remains of a partially decomposed snail washed
out, causing Donoghue to suffer diahorrhea and acute anguish. She could not sue
either Minghella or Stevenson in contract, as she had not purchased the drink, and
her lawyer, Walter Leechman, opted to try to sue in tort.
The House of Lords eventually decided that she had an action available to her to
recover damages from the manufacturer under the tort of negligence.
11Definition of Negligence
◦ Negligence is:
◦ omitting to do something that a reasonable person
would do;
◦ or doing something that a prudent and reasonable
person would not do; and
◦ it is the failure to exercise reasonable care and skill.
12Elements of negligence
In order to succeed in a negligence action:
◦ the plaintiff must establish on the balance of
probabilities that:
◦ step 1: the defendant owed them a duty of care;
◦ step 2: the defendant breached the duty of care to
them;
◦ step 3: they suffered damage as a direct result of
the breach;
13Elements of negligence
◦ once the plaintiff has established duty, breach and
damage, then:
◦ step 4: the onus shifts to the defendant to establish
any defences;
◦ if the defendant fails to establish a defence, then the
defendant’s liability is established, and:
◦ step 5: the court will decide the compensation that the
plaintiff will recover.
14Elements of negligence - 1
Step 1: Does the defendant owe a duty of care to the plaintiff?
◦ Duty of care is the duty owed by one person to another, and is
based on the relationship between them.
◦ It is a question of law for the judge to decide.
◦ ‘The neighbour test’;
‘You must take reasonable care to avoid acts or omissions
which you can reasonably foresee would be likely to injure
your neighbour’
Lord Atkin in Donoghue v Stevenson [1932].
15Elements of negligence
Who is your neighbour?
◦ Your neighbour is any person who is so closely and directly affected by
what you do that you ought reasonably to have them in contemplation as
being so affected when you are directing your mind to the acts or
omissions which are called in question.
Depending on the facts, cases fall into two categories:
1. where duty is established because facts fall into a well-recognised duty
relationship; and
2. ‘novel’ cases outside the recognised categories.
16Elements of negligence
Test for duty of care:
1. Foreseeability:
◦ Would a reasonable person foresee that the defendant’s act
could cause damage?
2. Vulnerability & Reliance:
◦ Was the plaintiff in a vulnerable position (of reliance)?
◦ defendant in a controlling position (Green v Country Rugby
Football League of NSW [2008]
◦ plaintiff reliant on the defendant: Rogers v Whitaker [1992]
17Green v Country Rugby Football
League of NSW [2008] NSWSC 26
Green was a rugby player who had been injured in 2004 whilst playing as a 16-year-old in an adult
competition.
In determining that the League owed Green a duty of care, Walmsley AJ, listed a number of factors:
o the League arranged insurance for all players;
o the League insisted that players be registered with their clubs;
o Green was a player injured in a competition organised by the League;
o the League tried to arrange for all coaches to be accredited but knew that some had not
undertaken the required courses;
o the League knew that some under-18s were playing in the competition;
o the League knew that some players were vulnerable to injury because of their physical
characteristics.
A duty of care was found to exist, but the court found that it had not been breached
[Show More]
