BLAW1004 Lecture Notes - Lecture 9: Aust, Misrepresentation, Contributory Negligence
12 Jun 2018
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Lecture 9: Negligence
Torts defined:
• Civil wrongs – conduct that is twisted or crooked causing loss or damage to another.
• Acts that are not authorised by law and infringe anothers private or public rights.
• The legal system does not penalise all conduct that causes a loss. Losses from lawful
conduct that is not malicious are not compensable.
• Some conduct is actionable - the law regards it as so bad that a person whose rights
have been breached can sue even though there has been no loss or damage and the
tortfeasor was not aware of the infringement of rights.
Torts contrasted:
• Tort is a civil wrong where the victim is an individual. Crime is a wrong against the
whole community.
• Torts differ from contracts in that contractual rights arise from agreement.
• The compensatory objective for torts is also different to that of contract. In torts, the
aim is to put the plaintiff in the position they would have been in had the tort not
been committed.
Recognized torts in Australian law:
The tort of negligence:
• Negligence = 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.
Types of conduct in negligence:
• Negligence occurs by conduct.
• The form that the conduct takes will determine what rules are applied to establish
negligence.
• Categories of conduct include:
- A positive act
- A failure to act (omission)
- Making a statement or giving advice, or failing to do so
Torts based on very
specific kinds of positive
conduct
Liability for a wide range of
conduct
find more resources at oneclass.com
find more resources at oneclass.com
Cases:
• Rogers v Whitaker (1992) 175 CLR 479; Aust Torts Reports 81-189
- When W was a child suffered injury that left her blind in one eye
- Led a normal life until age of 40 when she consulted R – an eye surgeon
- He advised an operation would improve appearance and restore sight
- Didnt warn of any risks
- Failed to improve sight and caused a rare condition that left her blind in
other eye
- The surgeon had a duty of care that required him to warn of risks → failed to
do so → breach → remedy
Types of harm in negligence:
• The type of harm that the plaintiff suffers will be relevant, not only in establishing
negligence, but also in determining the adequate amount of compensation.
• Categories of harm include:
- Physical injury to the person;
- Physical damage to property;
- Purely economic loss.
Cases:
• Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180
- Just because can have physical injury doesnt mean that economic losses
arent sustained. Potato farmers, outbreak to neighbour – financial loss
sustained as crop was lost. Therefore not done everything to done practical.
Awarded financial payout.
Elements required for the tort of negligence:
• Three conjunctive elements → all three must be satisfied
• A duty of care owed by the tortfeasor;
• A breach of that duty of care; and
• Loss, damage or injury as a result of that breach.
Establishing a duty of care:
To establish a duty of care, a plaintiff must show two things:
• That harm of the kind they suffered was foreseeable
- Reasonable foreseeability of harm: plaintiff must show that they belonged to
the class of people whom the defendant should have regarded as being at risk.
• That, in the circumstances, it was not unreasonable to impose a duty on the
defendant/s to take care not to do anything that would cause that harm.
The neighbor principle:
• Lord Atkin in Donoghue v Stevenson, A neighbour is a person who is so closely
and directly affected by my act that I ought reasonably to have them in
contemplation…when ) am directing my mind to the acts or omissions which are
called into question.
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Torts contrasted: tort is a civil wrong where the victim is an individual. Crime is a wrong against the whole community: torts differ from contracts in that contractual rights arise from agreement, the compensatory objective for torts is also different to that of contract. In torts, the aim is to put the plaintiff in the position they would have been in had the tort not been committed. Torts based on very specific kinds of positive conduct. The tort of negligence: negligence = 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. Types of conduct in negligence: negligence occurs by conduct, the form that the conduct takes will determine what rules are applied to establish negligence, categories of conduct include: Making a statement or giving advice, or failing to do so. Cases: rogers v whitaker (1992) 175 clr 479; aust torts reports 81-189.
