Negligence.docx

1、NegligenceTortTort law is concerned with wrongful conduct by one person that causes harm to another.A tort is a civil wrong. It provides a mechanism whereby an individual can protect their personal and property rights. If these rights are infringed侵犯, the victim may seek compensation from the wrongd

2、oer. There is some overlap between tort law and criminal law: a persons act may involve both a crime and a tort, eg assault袭击, battery, theft/ conversion.However, criminal proceedings are taken in the name of the state, while proceeding in tort are taken by the injured person as private citizen.The

3、standards of proof differ:-In criminal action, it is “beyond reasonable doubt”-In civil action, it is “on the balance of probabilities” Tort versus CrimeTort CrimeAims to compensateAims to punishInitiated by individualsInitiated by stateOutcome is remedy for plaintiffOutcome is conviction or release

4、 of wrongdoerNegligenceThe tort of Negligence means a failure to take reasonable care to prevent loss or damage to others that was foreseeable, and should have been prevented. Categories of conduct include:-A positive act-A failure to act( omission): Hawkins v Clayton B在C立遗嘱把房给H，C 6年后才找H， 房贬值-Making

5、 a statement or giving advice, or failing to do so: Rogers v Whitaker R帮W做眼手术，前没说风险，后整盲另一只眼Categories of harm include:-Physical injury to the person: Hole v Hocking 做的士受伤-Physical damage to property-Purely economic loss: Perre v Apand Pty Ltd A在P旁种野，传染病毒， 令P赔钱To establish liability for Negligence it

6、 must be established on the facts of the particular case that-The defendant owed the plaintiff a duty of care-The defendant breached the duty of care-Damage must have been suffered as a result of the breach of dutyDuty of CareThere are three factors;Firstly, it must have been reasonably foreseeable

7、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

8、 defendants conduct. Waverly Council v Fereirra Thirdly, a recognised duty situation or relationship must have existed in which the defendant was required to prevent the foreseeable harm to the plaintiff. Example of duty situationsFor example, a duty to prevent foreseeable harm has been recognized b

9、y the courts as arising between: Occupiers of property and persons entering the property Australian Safeway Stores Pty Ltd v Zaluzna Z在S门口滑倒，受伤Statutory authorities and the public: Waverly Council v Fereirra 12岁F在公园玩时死了，F父告WRoad users and other persons on the road Persons in a fiduciary relationship

10、, e.g. principals and agents Persons in a contractual relationship Manufacturers and consumers: Donoghue v Stevenson D去餐厅，见啤酒里有蛇，告S和生产商 In more unusual types of case, the courts weigh up various factors which may point to the existence of a duty of care, for example, considerations of policy and fai

11、rness; the extent to which the harm was foreseeable; the potential number of similar cases that might arise; and the likelihood of creating an unreasonable commercial burden by recognising a duty of care. In cases causing purely economic loss, a situation must be shown to exist in which the plaintif

12、f was vulnerable, dependent or powerless, and the defendant in a position of control or power. Perre v Apand Pty Ltd Woolcock Street Investments Pty Ltd v CDG Pty Ltd When conduct that causes purely economic loss consists of giving wrong information or advice, a duty of care only exists if: the spea

13、ker ought to have realised in the circumstances that they were being relied on to give accurate information or advice on the basis of which the other party might decide to act; and it was reasonable for the other party to act on that information or advice given. Shaddock & Associates Pty Ltd v Parra

14、matta City Council S买地前问P路会不会变宽，P说不会，S买后发现会Breach of Duty of CareA person who owes a duty of care must take appropriate steps to avoid the harm from occurring. The standard is: what steps would an ordinary prudent 谨慎的 person take in the circumstances to avoid the harm? Use the reasonable person test

15、: how would he/she act in the shoes of the defendant?If the defendants conduct falls below the standard of the reasonable person they have breached their duty of careBreach of Duty of Care: Factors to consider 1.The probability that the harm would occur if care was not taken Romeo v Conservation Com

16、mission of Northern TerritoryR饮了酒从悬崖跌下，受伤Bolton v Stone B在家门口俾旁棒球场的棒球打伤2.The likely seriousness of the harm Paris v Stepney Borough Council P在S打工，整盲另一只眼3.The burden责任 of taking precautions采取预防措施 to avoid the risk of harm Caledonian Collieries v Speirs S开车被火车撞死，老婆告C没任何提醒4.The social utility of the ac

17、tivity that creates the risk of harm Mercer v Tramways Comer 5.The social utility of the activity that creates the risk of harm Damage caused by Breach of Duty of Care The damage suffered by plaintiff must be caused by the defendantMarch v StramareThe harm must not be too remote- a person in the def

18、endants position must have recognized the harm as a real possibility, not very remote or beyong what would have been reasonably contemplated. Wagon MoundHarm that cannot be quantified in monetary terms is not recognized;Ordinary grief or sorrow is not recognized as harm.Q3 B没有买票，有意外，K照顾B辞职，抵押被银行收Fir

19、st issue: is the rock concert organiser liable in negligence to Ben?Rules/Principles: To succeed in an action in negligence, the plaintiff must prove on the balance of probabilities that (a) a duty of care is owed, (b) that the duty of care has been breached and (c) that the breach caused damage whi

20、ch is not too remote from the breach.(a)To establish a duty of care, the plaintiff must satisfy the “neighbour principle” established by Lord Akin in Donoghue v Stevenson. Under the neighbour test, a person must take reasonable care to avoid acts or omissions that they can reasonably foresee would b

21、e likely to injure their neighbour. In law, your neighbour is “those persons so closely and directly affected by your acts that you ought reasonably have them in contemplation as being so affected when directing your mind to the acts or omissions which are called into question.” Students may also co

22、nsider discussing what was once seen as the second requirement in establishing a duty of care in physical injury cases - that of proximity. Proximity involves an evaluation of the closeness of the relationship between the parties. As stated by Deane J in Jaensch v Coffey, proximity may be either phy

23、sical, circumstantial or causal. However, in recent cases the High Court of Australia has questioned the use of proximity in determining the existence of a duty of care. As stated by McHugh J in Tame v NSW, “you come under a duty only in respect of acts and omissions that you can reasonably foresee

24、may affect your neighbours - persons who are directly and closely affected by your acts. But that is not a ground for regarding proximity as a factor that is independent of reasonable foreseeability.” Thus, proximity is no longer considered to be a separate requirement, but falls under whether the t

25、est of reasonable foreseeability is satisfied.Students should also consider whether there are any relevant established duties of care. Precedent has established that occupiers owe a duty of care to entrants to the premises. With respect to lawful entrants, occupiers owe a duty of care to avoid any r

26、easonably foreseeable risk of injury (Australian Safeway Stores v Zaluzna). In some circumstances, a duty of care is also owed to uninvited visitors such as trespassers. In Hackshaw v Shaw, it was held that the defendant farmer owed a duty of care to a trespasser to avoid “ultra-hazardous” acts (fir

27、ing bullets). However, in Bryant v Fawdon the occupier was held not to owe a duty of care to the plaintiff trespasser, given that the injury was not reasonably foreseeable (the plaintiff climbed a 1.8 metre fence to get to a toilet and was knocked unconscious when she attempted to flush the toilets

28、disused concrete cistern in the dark). (b)There must be a breach in the standard of care. A person breaches their duty of care if they fail to meet the standard of care that the reasonable person is required to show to avoid unreasonable risk of harm (Imbree v McNeilly). The reasonable person need n

29、ot respond to a risk that is “far-fetched and fanciful”. How a reasonable person would act in the shoes of the defendant may be gauged by reference to certain criteria, including the probability of the risk of injury (Bolton v Stone), the seriousness of the consequences (Paris v Stepney Bourough Cou

30、ncil), the possibility of eliminating those risks (Woods v Multi-Sport Holding Pty Ltd), compliance with usual practice (Mercer v Commissioner for Road Transport and Tramways) and the utility of the defendants conduct (Watt v Hertfordshire). (c)The breach must have caused damage. This is established

31、 by way of two tests: (i) causation but for the breach the damage would not have happened (Chappel v Hart, Cork v Kirby McLean); and (ii) remoteness is the damage reasonably foreseeable? (The Wagon Mound cases).Once negligence is established, it is necessary to consider whether any defences apply. I

32、f the defendant can show the plaintiff voluntarily assumed the risk, the defendant escapes all liability (Agar v Hyde). In the case of contributory negligence, the plaintiffs compensation is reduced to the extent that the court considers just and equitable having regard to the plaintiffs share in the responsibility for the damage (s 26 Wrongs Act 1958 (Vic).Application: Students should consider all aspects of the issue, including ar