CLAW1001 Chapter Notes - Chapter 8: Nervous Shock In English Law, Wyong Shire, Qualified Privilege
CHAPTER 8: TORTS – CONCEPTS OF LIABILITY
THE NATURE AND ROLE OF THE LAW OF TORTS
• A civil wrong – act or omission which infringes another person’s rights
recognised by law à private in nature
o Arise irrespective of any agreement or contract
o Provides remedy for someone injured or otherwise harmed by the
act or omission of another in circumstances in which the law recognises a legal
duty is owed
Liability in contract (civil action)
Torts (civil action)
Crimes (criminal action)
- Obligations determined by contract
- Action commenced by party
seeking to rely on contract
- Remedy: compensation,
termination, specific performance
- Obligations fixed by law
- Action commenced by injured party
- Remedy: damages for injured
- Obligations fixed by law
- Action commenced by Crown/State
- Intention to punish offender and
deter others
• Overlap: some crimes may also be torts, some contractual rights may also be torts
• Fault v No Fault Compensation: Negligence is based on fault à compensation available to plaintiff who can establish
defendant owed duty of care and breached it
o No-fault schemes: worker’s compensation, motor vehicle compulsory 3rd party insurance
o Vicarious liability: employers are liable for tortious acts and omissions of employees w/in course of employment
• Types of Torts:
o Personal Rights: Trespass to person
§ Assault = threat of direct force to another
§ Battery = unauthorised physical contact
§ False imprisonment = unlawful detention
§ Defamation = damage to personal reputation
§ Privacy
o Property Rights:
§ Trespass to goods = wrongfully interfering with another’s possession of goods
§ Conversion = wrongfully dealing with another’s goods
§ Detinue = wrongfully detaining another’s goods
§ Trespass to land = unauthorised entry to another’s property
§ Nuisance = interference with another’s use and enjoyment of land
o Economic Interests:
§ Passing off = misrepresenting that G/S/firms have some connection with another
§ Procuring breach of contract = inducing a party to breach contractual obligations
§ Injurious falsehood = written/spoken words or conduct intentionally disparaging another’s goods
or business
§ Deceit = fraudulent untruth/misrepresentation
• The law of torts is largely judge-made law à most importantly the Civil Liability Act 2002 (NSW)
PART 1: NEGLIGENCE – PERSONAL INUURY AND PROPERTY DAMAGE
NEGLIGENCE, THE TORT LAW CRISIS AND THE CIVIL LIABILITY REFORMS
• Negligence: a form of carelessness, recognised by law which carries legal consequences
• Imposes a duty on every person to take reasonable care not to cause harm to their neighbours
o Developed gradually, responding to social, cultural and economic change
• Elements of the tort of negligence:
1. Defendant owed plaintiff a duty of care
2. Defendant breached duty of care by falling below reasonable standards of conduct
3. Defendant’s conduct caused plaintiff to suffer either physical or economic harm (causation)
4. Harm suffered by plaintiff was reasonably foreseeable (remoteness)
• Ipp Committee’s Review of the Law of Negligence (2002) à 60 recommendations for legislative reform
o Civil Liability Reforms à Narrow scope of potential liability, reduce damages which may be awarded
• Donoghue v Stevenson [1932]
o Issue: did manufacturer of an article for consumption + contained in a receptacle which prevented
inspection, owe a duty of care to ultimate consumer? à YES
THE DUTY OF CARE
• DOC = filter for scope of liability for negligent conduct à person not liable through negligence unless DOC
o Test: Lord Atkin’s neighbour principle from Donoghue v Stevenson [1932]
§ Neighbour: persons who are so closely and directed affected by an act that a person ought
reasonably to have them in contemplation when performing the act/omission
o CLA (NSW) 2002 à 5B General Principles
§ A person is not negligent in failing to take precautions against a risk of harm unless:
• The risk was foreseeable
• The risk was not insignificant
• In the circumstance, a reasonable person would have taken precautions
o The probability that the harm would occur if care were not taken
o The likely seriousness of harm
o The burden of taking precautions to avoid the risk of harm
o The social utility of the activity that creates the risk of harm
1. Reasonable foreseeability: above ^^^
o Must be reasonably foreseeable relationship b/w parties for DOC to be owed
o Is it reasonable to require a person to have in contemplation the risk of injury that has eventuated?
§ Duty of care: risk be not insignificant
§ Breach of duty: how would a reasonable person respond to that risk? à Standards of acceptable
conduct
§ Remoteness of damage: whether a reasonable person would have that defendant’s conduct
would result in the suffering
o Wyong Shire Council v Shirt [1980] – foreseeability + probability of risk
§ S injured when hit his head on bed of shallow lake à sign erected reading “deep water”
§ Decision: foreseeable risk of injury, appellant failed in duty to prevent risk of harm
o Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] – is there DOC to protect employees from criminal
acts of 3rd parties?
§ Manager attacked in car park at night, lights off
§ Issue: whether owner liable, whether lights off = negligent and risk of harm was foreseeable
§ Decision: owner not liable
2. Proximity:
o Jaensch v Coffey [1984] à DOC may arise where harm was reasonably foreseeable + parties were in a
relationship of proximity (physical, circumstantial, causal)
§ C developed psychiatric illness b/c husband seriously injured by negligent driving of J
§ Decision: foreseeable that Coffey would suffer nervous shock = success
• Impact = DOC extended to family member of injured person
o Test of limited value + doesn’t represent test for establishing DOC alone
a) Established categories:
• Owner of premises + persons invited / occupier of land + user of land
• Manufacturer + consumer
• Employer + employee
• School + pupil
• Driver + road users
• Hospital + patients
• Professionals + clients
b) Novel situations:
a. Reasonable foreseeability
b. Reasonable reliance by plaintiff on conduct of defendant
c. Vulnerability of plaintiff
d. Whether defendant voluntarily assumed responsibility for protecting plaintiff
e. Capacity for plaintiff to protect themselves from plaintiff’s conduct
§ Cattanach v Melchiors [2003] – wrongful birth and wrongful life actions
• C negligent in performing sterilisation for M
• Decision = breach DOC + breach was probable cause of pregnancy
o M claimed compensation to recover cost of raising child
§ Harriton v Stephens [2006]
• H born with disabilities b/c mother’s infection with rubella while pregnant
• S advised H’s mother she didn’t have the virus à no DOC owed b/c life isn’t actionable
§ Special categories + situations:
• Shock + mental harm à difficult to verify, difficult to establish conduct caused it
• Rescuers, volunteers: not acting for own interest or b/c statutory obligation
• Dangerous recreational activities: expected to take full responsibility
Document Summary
Action commenced by party seeking to rely on contract. Intention to punish offender and deter others: overlap: some crimes may also be torts, some contractual rights may also be torts. Types of torts: personal rights: trespass to person. Assault = threat of direct force to another. Trespass to goods = wrongfully interfering with another"s possession of goods. Trespass to land = unauthorised entry to another"s property. Nuisance = interference with another"s use and enjoyment of land: economic interests: Passing off = misrepresenting that g/s/firms have some connection with another. Procuring breach of contract = inducing a party to breach contractual obligations. Injurious falsehood = written/spoken words or conduct intentionally disparaging another"s goods or business. The law of torts is largely judge-made law most importantly the civil liability act 2002 (nsw) Part 1: negligence personal inuury and property damage. Negligence, the tort law crisis and the civil liability reforms: negligence: a form of carelessness, recognised by law which carries legal consequences.
