BLAW10001 Lecture Notes - Lecture 10: Waverley Municipal Council, Aust, Contributory Negligence
15 May 2018
School
Department
Course
Professor
Principles of Business Law
• Lecture 1
• Week 10
• Tort Law
• Is concerned with wrongful conduct by one person that causes harm to another
• Legal oligatios arise ot y agreeet, ut are iposed y la he oe persos
careless conduct harms another person
o Made up of common law (court made) principles, some of which have been
modified by statute
• Provides a private right of action for compensation, or for an order to stop
continuing or threatened harm (an injunction)
o Both natural persons and corporations are liable for wrongful conduct
causing harm
▪ When wrongful conduct by one person causes harm to another, the
wrongdoer becomes legally obliged to compensate the victim for the
harm they have suffered as a result
• In addition to providing compensation to injured parties, by imposing liability to pay
for such harm, conduct harm will be discouraged
• The Tort of Negligence
• Imposes liability on those who fail to take reasonable care to prevent loss or damage
to others that was reasonably foreseeable, and should have been prevented
o Very broad concept that potentially applies to a great number of situations
o Necessary to show that the person who failed to take reasonable care must
owe a duty of care to the person harmed before liability is imposed
o Categories of conduct include:
▪ A positive act
▪ A failure to act (omission): Hawkins v Clayton (1988) 164 CLR 539
▪ Making a statement or giving advice, or failing to do so: Rogers v
Whitaker (1992) 175 CLR 479
▪ Professional services
o Categories of harm include:
▪ Physical injury to the person: Hole v Hocking [1962] SASR 128
▪ Physical damage to property
▪ Purely economic loss: Perre v Apand Pty Ltd (1999) 198 CLR 180
• The essential elements of negligence
• To establish liability of negligence it must be established on the facts of the
particular case
o The defendant owed the plaintiff a duty of care
o The defendant breached the duty of care
o As a result of the defedats reah, the plaitiff suffered loss or ijury that
was not too remote
find more resources at oneclass.com
find more resources at oneclass.com
• Duty of care
• A legal duty to take reasoale are to aoid foreseeale har is alled a duty of
are
o A tort action can only be brought against someone who owes the injured
party a duty of are
• Firstly, it must have been reasonably foreseeable to a person in the position of the
defendant that injury or harm of some kind would happen to someone as a result of
the kind of conduct engaged in by the defendant.
• Secondly, the plaintiff must be a person or a member of a class of persons who it
was foreseeable might suffer harm as a result of the defedats odut.
• Waverly Council v Ferreira [2005] NSWCA 418
• Thirdly, that even if you find the harm is foreseeable, a duty of care usually only
arises in a recognised 'duty situation or relationship.
o Check whether the courts have previously recognised a duty in similar
contexts. If so, this will confirm that a duty is owed (the first two steps
will most likely point in this direction). If not, this does not necessarily
mean that there is no duty. Rather, you must be more confident about
your analysis of steps one and two if concluding that there is a duty.
• Step 1: foreseeability of harm
o In order for a duty of care to arise, it must have been reasonably foreseeable
to a perso i the defedats positio that ijury or har of some kind may
happen to someone as a result of the kind of conduct engaged in by the
defendant
o Precise type of harm that might be caused does not need to be reasonably
foreseeable
• Foreseeability of harm: Donoghue v Stevenson [1932] AC 562
Held – why did S owe a duty to D?
▪ A aufaturer of produts, hih he sells i suh a for as to sho that he
intends them to reach the ultimate consumer in the form in which they left
him, with no reasonable possibility of intermediate examination, and with
the knowledge that the absence of reasonable care in the preparation or
putting up of the products will result in injury to the osuers life or
property, owes a duty to the consumer to take reasonable care
• Step 2: Member of a class
o To establish a duty of care, it need not be foreseeable exactly who might be
injured
o It will suffice to show that the plaintiff is a member of a class of persons who
might reasonably suffer harm
o A defendant only owes a duty of care to someone who belongs to the class
• step 3:
o Check whether the courts have previously recognised a duty in similar
contexts. If so, this will confirm that a duty is owed (the first two steps
will most likely point in this direction). If not, this does not necessarily
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
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