Title | LAW1124 - Torts Study Notes |
---|---|
Author | Tiffany Louise Litherland |
Course | Civil Obligations C (Torts) |
Institution | University of Southern Queensland |
Pages | 43 |
File Size | 1.3 MB |
File Type | |
Total Downloads | 63 |
Total Views | 143 |
Consolidated notes and cases of lectures, powerpoints, module notes and compulsory readings. Everything you need for passing the 1124 exam is contained within. ...
USQ LAW1124 Civil Obs C: Torts - Study Notes p 1
Negligence
5
Concepts:
5
Elements: Calculus of Negligence (if this comes up, include the above elements in answer)
5 5
Defences: Definitions:
5 6
Cases:
6
Nervous Shock
7
Concepts Onus
7 7
Elements Recovery:
8 8
‘Something More’: Previous Steps for NS:
9 9
Modern Developments: Relevant Factors of Foreseeability:
9 9
Modern Approach: Rules of Determination: Statutory Limits on Claims Cases Intentional Torts: Trespass
9 10 10 10 11
Trespass is Elements:
11 11
Defences to Intentional Torts: Consent:
11 11
Necessity: Self Defence:
12 12
Other Defences:
12
Trespass to the Person
12
Battery:
12
Elements (as per Trespass + Element X): Assault
13 13
Elements (as per Trespass + Element X): False Imprisonment (deprivation of liberty):
13 14
Elements (All elements of Trespass + D is at Fault): Statutory:
14 14
Remedies: Comparison Chart
14 15
Cases
15
Trespass to Land
16
Concepts:
16
Elements: Must Establish:
16 16
Remedies:
17
Trespass to Goods/Chattels
17
Concepts: Trespass to personal Property Trespass to Goods (Chattels)
17 17 17
Must Establish:
17
Remedy/Recovery: Conversion:
18 18
Must Establish: Detinue:
18 19 USQ LAW1124 Civil Obs C: Torts - Study Notes p 1
USQ LAW1124 Civil Obs C: Torts - Study Notes p 2 Cases (Trespass to Land & Chattels):
19
Remedies for Trespass
21
Remedies for Trespass to Person
21
Remedies for Trespass to Personal Property (Goods/Chattels) Damage for Trespass to Personal Property (Goods/Chattels)
21 21
Damages for Conversion General Factors for Determining Actual Loss
21 21
Damages for Detinue Injunction
21 21
Replevin (rarely used)
22
Limitation
22
Defences for Trespass
22
Mistake
22
Consent Valid Consent
22 22
Consent to Medical Treatment Consent in Sports
22 22
Revocation or Withdrawal of Consent Burden of Proof
22 22
Self-defence, Defence of Another Defence of Property
23 23
Provocation (Qld) Queensland Criminal Code 1899
23 23
Necessity/ Urgent Situations Defences Specific to Trespass to Personal Property
23 23
Discipline Power Insanity and Involuntarism
23 23
Illegality: Ex turpi causa non oritur actio Cases
23 23
Economic Loss
25
Concepts: History:
25 25
Typical Claims for Pure Economic Loss: Approaches:
25 26
The Salient Features Approach: Perre. Salient Features: Subsequent Features
26 26
Considerations/features which were applied by the courts in deciding cases of pure economic loss. Negligent Provision of Services (Hill v Van Erp - Tort 9.130 p370)
27 27
Defective Building Cases/or ‘transferred loss’ case Exclusory Rule:
27 27
Indeterminate Liability ‘Ripple effect’ see Mod 6 p 3-12: Main points:
27 27
The Caltex Case The Perre Case:
27 28
The Ball v Consolidated Rutile [1991] case: Johnson Tiles v Esso Aus [2003] case:
28 28
McMullin v ICI Aust. Case: Cases Negligent Misrepresentation/Negligent Statement (Economic Loss)
28 28 30
Concepts: Elements:
30 30
Special Relationship
30
Barwick Test - Elements Scope of The Barwick Test: 6 Issues
30 31
Liability to a Third Party: Auditors
31 USQ LAW1124 Civil Obs C: Torts - Study Notes p 2
USQ LAW1124 Civil Obs C: Torts - Study Notes p 3 Further Factors Relating to the Existence of A Duty of Care Statutory Based Actions
31 31
Fraud (Deceit)
31
Remedies Cases
31 31
Concurrent and Vicarious Liability Concepts: Vicarious Liability
33 33 33
Elements of Vicarious Liability
33
Existence of a Relationship of Employer and Employee Tests
33 33
The Control Test The Organisation Test
33 33
The ‘Enterprise Test’ Multi-facet Test
33 33
Specific Employment Cases Acting in the Course (Scope) of Employment Wrongful Mode The Frolic Doctrine
33 34 34 34
Prohibition by Employer The Employer’s Indemnity from the Employee
34 34
Direct Liability for Harm Caused by Independent Contractors Non-Delegable Duties
34 34
Multiple Tortfeasors
34
Joint Concurrent Liability Concurrent Liability at Common Law
34 35
Legislation: Law Reform Act 1995 (Qld) Proportionate Liability
35 35
Cases:
35
Nuisance
36
Definition of Nuisance: Public and Private
36
Elements of Private Nuisance Private Nuisance - Title to Sue
36 36
An Interference with A Right Attached to Land Rights Capable of Protection Interferences Causing Material Damage Interferences with Enjoyment
36 36 36 36
Tests for Substantial and Unreasonable Interference Damage
37 37
Private Nuisance: Who May be Found Liable? Private Nuisance: By Material Physical Damage
37 37
Private Nuisance and Personal Injuries Defences Private Nuisance; Onus of Proof Private Nuisance; Defences Cases Defamation
37 37 37 38 38 39
Definition and General:
39
Features of Defamation: Legislative Status of Defamation:
39 39
Elements: Business Defamation Injurious Falsehood:
39 40
Defences in Defamation: Defence of Justification (Truth) - s25 Defence of Contextual Truth - s26
40 40 40 USQ LAW1124 Civil Obs C: Torts - Study Notes p 3
USQ LAW1124 Civil Obs C: Torts - Study Notes p 4 Defence of Absolute Privilege - s27 Defence for Publication of Public Documents - s28(1)
40 41
Defence of Fair Report of Proceedings of Public Concern - s29 Defence of Qualified Privilege - s30
41 41
Defence of Honest Opinion - s31 Defence of Innocent Dissemination - s32
41 41
Defence of Triviality - s33 Defamation Remedies: Damages for Non-economic Loss Reputation Vindication
41 41 42 42 42
Damages for Economic Loss Aggravated Damages
42 42
Mitigation of Damages Apologies - s20
42 42
Offer of Amends A Defence for the P’s Failure to Accept the Offer
42 42
Cases:
42
USQ LAW1124 Civil Obs C: Torts - Study Notes p 4
USQ LAW1124 Civil Obs C: Torts - Study Notes p 5
Negligence Concepts: ❖ Negligent acts causing physical damage can be sued upon in negligence or trespass if the interference is direct: Williams ilotin (1957). v M ➢ Indirect interference, whether by act or omission, may be actionable in negligence but not trespass. ❖ A negligence action is only available where the P has actually suffered injury, damage or loss, in the form of a physical personal injury (including illness), physical damage to property, a recognised psychiatric injury illness and/or purely financial loss. ❖ ALSO, if Disabled persons likely to be nearby, even if slight, Negligence exists: Glasgow C orp v T aylor [1922]. tepney B orough C ouncil ❖ Abnormal P: Only when abnormality is known it here a duty based on abnormality: Paris v S ondon E lectricity B oard [1965] (blind man [1951] (one eyed man goggles - held liable); Haley v L fell in hole - held liable). ➢ In the absence of the knowledge, only recover in injury to a normal person, if reasonably foreseeable: Hegarty v QLD Ambulance [2007] (P failed to alert employer of work stress - held not liable). ❖ Unborn P: Mother can be held liable for injury to her foetus. Medical practitioner can be held liable. iability A ct 2 003 ❖ Wrongful Birth: Previously allowed to be held liable, now regulated by CLA s 49A and 49B - C ivil L (QLD).
Elements: To establish liability in negligence there are three elements to be satisfied : 1. D owed a d uty o f c are to P; a. In all c ases, b efore D uty c an a rise, F oreseeability o f i njury i s essential. req of reasonable foreseeability b. Something other - “ proximity”, m ay b e r equired: D onoghue . ‘Neighbour Principle’ contains req of ‘reasonableness’: a value judgement by the court: Tame . c. Not necessary t he p recise s equence o f e vents b e r easonably f oreseeable: C hapman v H will be earse ( 1961). It sufficient to establish that the risk of injury was reasonably foreseeable. 2. D breached t his duty; a. Reference to reasonable p erson i n D ’s position; b. Foreseeable, D s hould h ave o r o ught to h ave k nown a nd ‘ not f ar-fetched o r f anciful’: W yong S hire C ouncil v S hirt (1980). c. Under CLA l egislation, b ut n ot c ommon l aw, r isk m ust h ave b een ‘ not s ignificant’: D rinkwater v H owarth [2006]. d. Must be c onclusive, a r easonable p erson w ould h ave t aken precautions. e. See Calculus o f N egligence below f. At Common L aw ‘ obviousness’ i s one factor considered in determining a reasonable person would have taken precautions: Vairy v W See Defences yong S hire C ouncil (2005). (cf ( 3) below)(see Definitions ( Obvious r isk) below) breached by failure to warn of it. (see Definitions ( Inherent R g. If the r isk i s ‘ inherent’ , duty is only isk) below) 3. D’s breach c aused t he i njury to P w hich i s n ot t oo remote. a. Causation - a q uestion o f fact. i. CLA legis: f actual c ausation a nd s cope o f l iability. ( does n ot a pply to W orkers C omp Legis) ii. But For t est, t he b ut f or t est a sks w hether t he p laintiff w ould h ave s uffered n o i njury w ithout the & M H S tramare P ty L td ( 1991). defendant's breach: March v E iii. ‘But for’ c ausation a t C ommon L aw m ay a lso e stablished w here P i s i njured w ithout D s b reach, b ut P astings L td v W ardlaw [1956]. proves Ds breach contributed to worse injury: Bonnington C iv. Ds breach ‘ is n ecessary to c omplete a s et o f c onditions t hat a re j ointly s ufficient to a ccount f or the occurrence of harm', this will satisfy the but for test both at common law and as embodied in the CLA legislation: Strong v W oolworths L td [ 2012]. ars L td v. Multiple Sufficient C auses: O ne o r m ore a cts w hich s ufficiently c aused P ’s I njury: P erformance C v A braham [1962]. b. Remoteness: Normative c onsideration. S hould D b e h eld liable? i. An injury w ill b e t oo r emote u nless i t i s o f a t ype t hat i s a f oreseeable c onsequence o f t he defendant's ankship ( UK) L td v breach of duty, even if more extensive than could have been foreseen: Overseas T rule). Miller S teamship P ty L td ( The W agon M ound ( No 2 )) [1967]. (eggshell skull ● ●
While duty a nd b reach n eed o nly b e e stablished i n r elation to the o riginal i njury, c ausation a nd r emoteness m ust be cLean (1996) satisfied in relation to both the original injury and any consequential losses: Commonwealth v M Where all t hese t hree e lements a re e stablished, t he d efendant w ill b e l iable u nless h e o r s he c an e stablish a defence.
Calculus of Negligence (if this comes up, include the above elements in answer) Elements (CLA 9(2)): 1. Likelihood of H arm i f c are n ot taken; 2. Likely seriousness o f a ny harm; 3. The burden o f t aking precautions; 4. The social u tility o f t he a ctivity i n q uestion.
And (CLA 10(a)): 5. The burden o f t aking p recautions to a void t he risk which eventuated and similar risks for which the D may be responsible: Wyong S hire v S hirt.
Defences: 1. 2.
If D a cted i n a m anner r ationally a ccepted a s c ompetent b y t heir p eer p rofessional - N O B REACH: R ogers . (see egligence) below) Definitions ( Medical N If reasonable p erson w ould h ave i gnored t he r isk - N o B REACH: B olton v S tone [ 1951]. USQ LAW1124 Civil Obs C: Torts - Study Notes p 5
3.
USQ LAW1124 Civil Obs C: Torts - Study Notes p 6 Under CLA l egis - I f ‘ obvious r isk’, s ubject to limited e xceptions, d uty i s n ot b reached b y f ailing t o w arn o f i t. (see Definitions ( Obvious r isk) below)
Definitions: Risk: Inherent Torts 10.150
CLA s 16 A D i s n ot l iable i n N egligence f or h arm s uffered b y a nother p erson a s a r esult o f m aterialisation of an inherent risk. If the risk is inherent, the duty can only be breached by a failure to warn of it (CLA Section 16). This provision does not appear in the ACT or Tasmanian legislation.
Risk: Obvious Torts 10.150, 10.165
CLA s13(1) Where risk is Obvious, the D may not have to do anything or at most can give a warning. If the risk is obvious, then subject to limited exceptions, the duty cannot be breached by failing to warn of it (Sections 13 & 15) whereas at common law obviousness is one of the number of factors taken into account into determining whether a reasonable person would have taken precautions: yong S hire C ouncil ( 2005) 223 CLR 422; ❖ ○ Vairy v W offs H arbour C ity C ouncil (2005) 223 CLR 486; ❖ ○ Mulligan v C CLR 234. ❖ ○ Thompson v W oolworths ( Qld) P ty L td (2005) 221 This provision does not appear in the ACT or Victorian legislation.
Medical Negligence: Bolam test
In medical negligence cases, courts used to apply a test known as the Bolam test, which derived olam v F riern H ospital M anagement from McNair J’s direction to the jury in the English case, B Committee [1957] 1 WLR 582. that the court had to hold that the defendant doctor was not In effect, the Bolam t est meant negligent if some of the expert witnesses (‘a responsible body’) said that she or he acted properly in the circumstances. arquhar [1988] 1 Qd R The Bolam t est had been applied in Australia (see, for example, Dwan v F 234). However, in Rogers and a subsequent significant decision, N axakis v W estern G eneral of Australia held that Bolam s hould not be applied in cases of medical Hospital , the High Court negligence. That is to sa...