Torts Outline - EXAM PREP PDF

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TORT LAW EXAM NOTES - OUTLINE FOR IN PERSON EXAM...

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LLB102 Torts Outline

Negligence Element One: Duty of care

Established Duties – Question of Law Provided a case falls within an established duty of care:

- Manufacturer (to consumer) - Occupier (to entrant) - Employer (to employees) - Road users (to other road users) - School authorities (to students) - Medical professionals (to clients) It is required for the relevant duty, authority and scope are mentioned Charles v William – negligence – Is William responsible for the damage to Charles’s care? “Road users owe a duty of care to other ‘road users’ as well as to persons or property adjoining the road (Imbree v Mcneily). The scope of this duty encompasses the use of reasonable or ‘proper’ care not to cause injury to other road users; where proper care connotes to the avoidance of excessive speed, keeping a good lock out, observing the traffic rules and signals and so on. In this case William failed to take reasonable care in keeping a good look and therefore an established duty of care owed to Charles as there is an established relationship of road users (to other road users)”.

Non-delegable Duties – Question of law Provided the established duty falls within a non-delegable duty

- School authorities (to students) - Hospitals (to patients) - Occupiers - Employer It is required to identify the category, state the non-delegable duty, state what the duty requires and provide an authority. Here, the established duty of care falls within the NDD of school authorities (to students) where school have the duty not just to take reasonable care, but to ensure reasonable care is taken by school staff not to expose students to foreseeable risks (Commonwealth v Introvigne). Therefore, the duty of x may not be delegated onto y as he owes an NDD to the plaintiff.

LLB102 Torts Outline

Novel non-delegable duties – - ‘the person on whom the duty is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised (Kondis v State transport authority).

Vicarious Liability “An employer will be vicariously liable for the tortious acts of an employee carried out during the course of employment” (Hollis v Vabu Pty Ltd)”. - To establish VL: 1. The tortfeasor must be an employee a. Apply the multi-facet test i. Control ii. Mode of remuneration iii. Provision and maintenance iv. Obligation to work exclusively for the employer v. Hours of work vi. Provision of holidays vii. Deduction of income tax viii. Right to delegate and subcontract work (Hollis v Vabu) THHEODMC 2. The employee must have committed a tort 3. The tort must be committed in the course of the employment

LLB102 Torts Outline

a. Express prohibition: i. ‘is an act is carried out in the wrong way, it is still in the course of employment as it is just a wrongful mode of doing what an employee is authorised to do’ (Bugge v Brown) b. Frolic: i. ‘If an employee does something that is in furtherance of their own interest and not the employers interest they are not acting in the course of employment and are said to be on a folic of their own’ (Story v Ashton)

c. Intentional tort: i. ‘a tort may be within the course of employment if it is an act that the employee was employed to carry out, or an act that was incidental to their employment’ 1. Cf: ‘independent personal act which was not connected with or incidental in any matter to the work which the barmaid was employed to perform’ (Deaton’s v Flew)

Novel Duties of Care – “the current approach to novel duties combines both ‘salient’ and ‘incremental’ features through a multifactorial approach as established in Sullivan v Moody. The approach requires arguing by analogy, induction and deduction from previously decided cases to identify relevant factors”.

LLB102 Torts Outline

Pure Psychiatric Injury - Reasonable foreseeability: RGDGNTSA 1. Recognised psychiatric injury a. ‘the plaintiff must sustain a medically recognisable psychiatric injury; not merely grief, anxiety or sorrow’. Tame 2. Reasonable foreseeability R a. ‘the plaintiff must establish that in all circumstances, it was reasonably foreseeable that they (as an individual or as a member of a class) could suffer psychiatric injury due to the defendant’s negligence’ (Gifford v Strang Patrick Stevedoring Pty Ltd) i. Normal fortitude: Tame v NSW N ii. Direct perception: Gifford v Strang Patrick Pty Ltd D iii. Sudden shock: Annetts v Australian Station Pty Ltd S RGDGNTSA 3. Other factors a. Relationship between parties i. Plaintiff and victim: Gifford v Strang Patrick Stevedoring Pty Ltd ii. Plaintiff and defendant: Annetts v Australian Station Pty Ltd b. Control and vulnerability: Gifford c. Coherency: Annetts d. Indeterminate Liability: Sullivan v Moody Other factors: RVCI -

GAGAS

Pure Economic Loss 1. Identify and classify the loss/ type of harm suffered a. Pure Economic loss (PEL) b. Identify the case category + novel duty i. Relational loss: Relational loss occurs when plaintiff suffers PEL as a result of physical damage occurring to property belonging to a third party. ii. Explain it is a novel duty: rise when a duty of care is argued in a situation which: has not previously been considered by a court, does not fall within an established duty of care.

LLB102 Torts Outline c. Multifactorial approach: adopting the multifactorial approach as established in Sullivan v Moody; arguing by analogy to previously decided relational loss cases to see what factors they consider relevant to a duty of care arising.

First Factor: Reasonably foreseeability: Was it reasonably foreseeable the plaintiff as an individual or member of a class could suffer PEL due to the defendants negligence caltex or fortuna

Other factors:

o

1. Ascertained class test: Caltex 

Ascertainable class test: Fortuna

o

Five salient features: Caltex

o

Physical propinquity test: Caltex

o

Other fortuna factors: knowledge, control and indeterminate liability Balance – arguments for and against

LLB102 Torts Outline

Element two: breach of the duty of care Two stage process: 1. What is the relevant standard of care? a. QUESTION OF LAW 2. Has the standard been breached? a. QUESTION OF FACT

STANDARD OF CARE – question of law – objective test Consider: Did the defendant breach the duty of care?

- Identify from the relevant facts what the alleged breach is – failed to do something, did something the wrong way …

1. What is the relevant standard of care?

- ‘As a general rule, the standard of care owed to someone who might foreseeably be injured by lack of care is objective and impersonal’ (Imbree v McNeily).

Characteristics of the defendant ‘Although the standard is objective, there are circumstances where it will be subjectively adjusted or framed to fit the circumstances under which it arises’. Lowers Standard Children

Raises Standard Knowledge and skill

Will not reduce Mental Disability (Carrier v

(Mchale v Watson)

(Rogers v Whitaker) Lack of knowledge or skill (Roe v Minister of Health)

Brown) Physical disability & old age (Roberts v Ramsbottom)

Inexperience (Imbree v Mcneiley) Intoxication (Joslyn v Berryman) Characteristics of the plaintiff

Lowers Standard Knowledge and skill (bus v

Raises Standard Children (Doubleday v

Will not reduce Intoxicated plaintiff CLA

LLB102 Torts Outline Sydney county council) Kelly) s46(1)(c). BREACH OF THE STANDARD OF CARE – question of fact – apply the calculus of negligence s9 CLA In determining whether the defendant has breached the standard of care owed by them, the calculus of negligence as found in s9 of the CLA is applied.

- The person does not breach a duty to take precautions against a risk of harm unless a. the risk was foreseeable (that is, it is a risk of which the person knew or ought to reasonably have known) b. the risk was not insignificant c. in the circumstances, a reasonable person in the position of the person would have taken the precautions.

2.1 Was the risk foreseeable: s9(1)(a) – Wyong shire council v shirt 2.2 Was the risk not insignificant s9(1)(b) 2.3 Reasonable response to the risk of harm s 9(1)c a. The probability that the harm would occur if care were not taken – s 9(2)(a); RTA v Dederer b. The likely seriousness of the harm – s 9(2)(b); RTA v Dederer c. The burden of taking the precautions to avoid the harm and - (9)(2)c; RTA v Dederer & s10 d. The social utility of the activity that creates the risks of harm – s (9)(2)(d) – Darbon v Bath

Other things

- Anticipation – (RTA v Dederer)

o

anticipate the possibility of inadvertence or negligence on the part of others (including the plaintiff)  Bus v Sydney County Council (at 92)

o

Cf sudden emergency 

Cannot be anticipated  *Derrick v Cheung (2001) 181 ALR 301

LLB102 Torts Outline

- Standards – (Rogers v Whitaker)

o

Customary standards (Mercer v Commisioner)

o

Statutory standards (tucker v McCann)

o

Professional standards (rogers v whitaker)

Conclude: Whether a reasonable person in the position of the defendant would have taken the precautions against the reasonably foreseeable and not insignificant risk of harm. OTHER THINGS BREACH: AD ST CM PR

Damage: the third element ‘Actions in negligence have 3 elements, established by the plaintiff on the balance of probabilities.

Elements: 1. Loss/ damage suffered by the plaintiff must be of a kind recognised at law a. ‘it is a question of law whether a negligence action is capable of compensation’. i. Loss of chance/ opportunity: 1. Solicitors failure to institute legal proceedings within the time period. 2. Loss of chance of a better medical outcome a. Required to show there is a greater than 50% likelihood the injury may have been avoided given the doctors breach (Tabet v Gett).

- Damage not recognised:

o

Too vague

o

Wrongful life case (Meadows v Ferguson)

o

Associated with illegality

o

Mere fright, anguish or grief (Tame v NSW)

LLB102 Torts Outline 2. Is the pl’s damage caused by the defendant’s breach (factual causation). 2.1 Standard of proof a. PI must establish factual causation on the balance of probabilities: (Tablet v Gett) i. S 12 CLA onus of proof (Hostons case) 2.2 Factual causation – question of fact / But For test applied b. Necessary condition of the occurrence of the harms: s11 (1)(a) i. Restate the ‘BUT FOR’ test (Wallace v Kam) 1. ‘a necessary condition is a condition that must be present for the occurrence of the harm (Strong v Woolworths). Where there is only one potential cause of the plaintiff’s loss the ‘but for’ test can be easily applied to determine whether causation is established under s 11(1)(a). a. ‘but for x’s failure to take reasonable care, on the balance of probabilities it was more likely than not that the appellants injury or loss could have been prevented’ Exceptional cases: s11(2)

- Arise where medical or scientific evidence will not enable you to establish a particular defendant breach (multiple) is a necessary condition to the occurrence of the plaintiff’s harm.

o

Mcgee case: materially increased the risk

o

Fairchild case: materially increased the risk

Causation and policy: s11(2)

- “the resolution of the question of causation has been said to involve the common sense idea of one matter being the cause of another” (Fairchild)

Section 11(3) – Factual causation

- Forces us to consider what the plaintiff would have done given the defendant was not in breach.

3. Scope of liability ‘consideration to whether s11(b) and 11(4) are satisfied’

LLB102 Torts Outline 3.1 whether the damage was reasonably foreseeable 3.2 Whether the breach was a legally significant cause 3.3 whether (if there is more than one cause of the plaintiff’s harm) any of the other causes of harm amount to intervening acts which will limit the defendant’s liability or release them from liability in relation to all or part of the Pl’s damage. 3.1 Reasonably foreseeable: ‘a defendant is not liable for all the consequences of their wrongful acts or omissions, only those which are reasonably foreseeable’ (mahony) Foreseeability:

- In damage: ‘the foreseeability of the kind of damage not the manner in which it occurs or its extent’ (Chapman v Hearse).

- Eggshell skull rule: ‘Once a Def’s liability to a Pl is found because the type of injury suffered was reasonably foreseeable, that liability will extend to any aggravation of the injury due to some inherent susceptibility of the plaintiff’ (Smith v Leech Brain).

3.2 legally significant cause: ‘requires the court to consider, if warranted, the normative (or policy) issue of whether it is justified in imposing liability onto the defendant. (weigold, Wallace v kam & zanner). 3.3 intervening acts (novus actus interveniens) - ‘if more than one event contributes to the Pl’s loss, are any of those events intervening?’ - voluntary - independent new act - (chapman v Hearse, Mahony) FESI – MBZC 1. Identify from the facts the loss suffered, classify and consider if it is recognised at law 2. Factual causation 

If only one event/cause - CLA s 11(1)(a) will be satisfied if the “but for” test is satisfied – because then the Def’s breach is a necessary condition of the occurrence of the harm: *Wallace or *Strong v Woolworths Ltd or *Adeels



If more than one event/cause

LLB102 Torts Outline o

Identify all possible causes

o

Consider whether s 11(1)(a) is satisfied: *Wallace / *Strong / *Adeels; and *Zanner If s 11(1)(a) cannot apply, consider s 11(2) in the “case of evidentiary

o

gaps” and apply the law from *Fairchild 

Any statement by plaintiff?: CLA s 11(3)



Proved by the Pl on the “balance of probabilities”: CLA s 12

3. Scope of Liability: CLA s 11(1)(b); 11(4) 

Was it RF that the kind of carelessness by the Def would cause the kind of damage suffered by the Pl?: Wagon Mound / *Mahony / *Chapman v Hearse 



Egg shell skull rule

If more than one event contributes to the Pl’s loss, are any of those later events intervening acts? 

Was the intervening act: (a)

voluntary; and

(b)

a new and independent act (ie. not the very thing likely):

 

Haber v Walker / *Chapman v Hearse / *Mahony

Was the Def’s breach a legally significant cause of the Pl’s harm? 

Even though factual causation under s 11(1)(a) or (2) has already been found



Requires a consideration of: -

Whether , for some policy reason, a Def responsible for a Pl’s

circumstances / harm should nevertheless be held not liable -

Whether the court is justified in imposing liability on the Def 

Defences to negligence

Onus of proof

State Rail Authority v Wiegold / *Wallace / *Zanner

LLB102 Torts Outline ‘in deciding liability for breach of duty of care, the plaintiff always bears the onus of proving on the balance of probabilities, any fact relevant to the issue of causation’

- Plaintiff to prove:

o

Duty of care

o

Breach of duty

o

Damage

- Defendant to prove:

o

Defences on the balance of probabilities

Limitations of actions act 1974 (Qld) s11 = personal injuries; 3 years Limitations of actions act 1974 (Qld) s10 – property or economic loss; 6 years

Defences -

Contributory negligence

-

Voluntary assumption of risk

-

Joint illegal activity

-

Specific provisions of the civil liability act 2003

o

Dangerous recreational activities s19

o

Professionals ss21 & 22

o

Obvious risks s15

Contributory Negligence: ‘failure of a plaintiff to take reasonable care of him or her saftey’ Elements: 1. Plaintiff was negligent a. Standard of care = reasonable person in P position CLA 23(2) (verryt v schoup) b. Breach of standard (CLA s9) s 23(1) 2. Contributed to the foreseeable injury a. Loss avoided or reduced had plaintiff taken reasonable care (monie v cth)

LLB102 Torts Outline b. Loss foreseeable of their failure to exercise reasonable care (monie v cth) A plaintiff is guilty of contributory negligence when a plaintiff exposes themselves to a risk of injury which might reasonably have been foreseen and avoided and suffers injury (Josslyn). -

In this case P may have contributed to the negligence inflicted onto them through doing x, y, z. The plaintiff’s conduct is judged the same way as a defendant is judged as to whether they breached their duty of care: CLA s 23(1)

Standard of care: Co ‘a the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person (23)(2)(a). The characteristics of the plaintiff may alter the standard (Verryt). In this case, P acted as x,y,z ansd as a result standard x may be applied’.

such

extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.

- Just and equitable (pennington v Norris) - 100% contributory negligence (cla s24) - Plaintiff intoxicated: CLA s47 - Defendant intoxicated: CLA s48 - Intoxicated driver: CLA s49

Volenti Non Fit Injuria Elements: defendant must prove 1. Plaintiff had full knowledge of the risk 2. Plaintiff freely and voluntarily agreed to accept the risk (physical and legal)

LLB102 Torts Outline 1. Knowledge of the risk – subjective test

- If the risk is an obvious risk, the plaintiff is taken to have been aware of the risk: CLA s 14(1)

- Presumption may be rebutted: CLA 14(1), s14(2) 2. Acceptance of risk

- Voluntarily accepted the whole of that risk: Rootes v Shelton (1967) 116 CLR 383; Imbree v McNeilly (2008) 236 CLR 510. If a plaintiff relies upon an intoxicated defendant, s 48(5) of the Civil Liability Act 2003 (Qld) provides that the defence of volenti cannot be raised - instead, contributory negligence is presumed: Civil Liability Act 2003 (Qld) s 48(2). Dangerous recreational activity:

- Was it a dangerous recreational activity? CLA s18 - Was the plaintiff injured due to the materialisation of an obvious risk of that activity?

o

Yes = no liability s19 roots v Shelton

Professional

- Is the defendant a professional and the breach is not in connection with the giving (or failing to give) warning, advice or information.

- If the alleged breach (not connected with advice, warning, giving information: CLA s22(5)) arises from the defendant providing a professional service, consider CLA s22.

- Do the facts refer to what is accepted competent professional practise? Does the defendant comply or not?

- If complie...