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Week 5 The Law of Torts Negligence Causation. Elements of Negligence Duty of Care Defendant owed a duty of care to the plaintiff to take reasonable care to prevent him from suffering injury - PowerPoint PPT Presentation
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Fundamentals of Law (BL502)
Week 5
The Law of Torts
Negligence
Causation
Fundamentals of Law (BL502)
Elements of Negligence Duty of Care
Defendant owed a duty of care to the plaintiff to take reasonable care to prevent him from suffering injury
Standard of CareThere was a breach of the duty of care by failing to adhere to the standard of care expected
CausationThe breach of duty caused damage to the plaintiff
DamageThe plaintiff suffered damage that was of a kind which was reasonably foreseeable i.e. was not too remote
Fundamentals of Law (BL502)
Causation A question of fact The “but for” test
“If you can say that the damage would not have happened but for a particular fault, then that fault is in fact a cause of the damage; but if you can say that the damage would have happened just the same, fault or no fault, then fault is not the cause of the damage” per Denning LJ in Cork v Kirby Maclean (P p398)
Fundamentals of Law (BL502)
Causation (cont.) If a number of factors contribute to loss, the
“but for” test may not be conclusive Did the defendant’s act or omission
“materially contribute” to the defendant’s loss? March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 Bonnington Castings (P p 398)
Fundamentals of Law (BL502)
Causation (cont.) Must prove each element of the causal link
Alexander v Cambridge Credit Corp Ltd (1987) 9 NSWLR 310
Kenny & Good v MGICA (S&OR p 49) Defendant will not be liable if the plaintiff’s
loss was inevitable Barnett v Chelsea & Kensington Hospital
(P p 398) Chapel v Hart (S&OR p26)
Fundamentals of Law (BL502)
DamagePlaintiff must prove that Damage is of a kind recognised by law Damage was of a kind that was reasonably
foreseeable
Fundamentals of Law (BL502)
The Law of Torts
Negligence
Damage
Fundamentals of Law (BL502)
Damage Foreseeable Damage
Damage will be foreseeable when the risk of damage is a real risk which would occur to the mind of a reasonable man in the defendant’s position and which he would not brush aside as far-fetched
Fundamentals of Law (BL502)
Damage (cont.) The Egg-shell Skull Rule
If damage is reasonably foreseeable then the defendant will be liable for the full extent of that damage even if the extent is greater than foreseeable
You must take your plaintiff the way you find him
Smith v Leech (P p399)
Fundamentals of Law (BL502)
The Law of Torts
Negligence
Exclusion Clauses
Fundamentals of Law (BL502)
Exclusion Clauses A carefully drafted exclusion clause can form part of
a contract and be effective in excluding liability for negligence if clearly bought to the attention of the plaintiff
Courts are biased against them Bias is less noticeable in commercial contracts Courts adopt a 2 step process
Has the exemption clause become a term of the contract?
If so, does it cover the breach in question?
Fundamentals of Law (BL502)
Is It a term of the contract? Unsigned exemption clauses will be binding if
The innocent party was aware of it; or reasonable notice of it has been given to
the innocent party
before the contract is made.
Fundamentals of Law (BL502)
What is reasonable notice What is reasonable notice depends on:
The nature of the document; The nature of the transaction; and The nature of the exemption clause.
Fundamentals of Law (BL502)
What is reasonable notice (cont.) Would it be reasonable to expect the
document to contain an exemption clause (e.g. a receipt)
Is the transaction one where you would expect an exemption clause to exist
The wider the exemption the greater the steps to be taken to bring it to the attention of the other party
Fundamentals of Law (BL502)
Does the Clause Cover the Breach? Courts will examine the clause carefully to determine
its effect and limit its scope where possible Generally, the Courts will give effect to the parties
intentions as evidenced by the natural and ordinary meaning of the words
There are 3 rules that courts use to limit exemption clauses: The Contra Preferendum rule Negligence Clauses The Four Corners Presumption
Fundamentals of Law (BL502)
Contra Preferendum Rule Any ambiguities in the exemption clause will
be construed against the party seeking to rely on the clause
Fundamentals of Law (BL502)
The Negligence Rule Liability for negligence may be expressly or
impliedly excluded but if the words could reasonably be applied to protect against some ground of liability other than negligence, then liability for negligence will not be excluded
To exclude liability for negligence, clear words are required
Fundamentals of Law (BL502)
The 4 Corners Presumption The exemption clause will only cover matters
within the 4 corners of the contract Whether an event falls outside the contract
depends on the a reasonable person test – would a reasonable person aware of the terms of the contract conclude that the parties must have had the relevant event in mind in drawing up the contract.
Fundamentals of Law (BL502)
Statutory Reforms In many cases, it is Illegal to attempt to exclude terms
implied by statute e.g. Trade Practices Act Attempting to exclude statutory liability (where not
permitted) may be misleading and deceptive conduct contrary to section 51 of the Trade Practices Act
Fundamentals of Law (BL502)
Proving Negligence Burden of proof is on the plaintiff On the balance of probabilities
Fundamentals of Law (BL502)
The Law of Torts
Negligence
Defences
Fundamentals of Law (BL502)
Defences to Negligence Contributory Negligence Voluntary Assumption of Risk Novus Actus Interveniens Illegal enterprise
Fundamentals of Law (BL502)
Voluntary Assumption of Risk Volenti non fit injuria Defendant must prove
Plaintiff knew of the risk Plaintiff fully appreciated the risk Plaintiff accepted the risk freely and willingly
Consent can be express or implied A total defence Burden of proof is on the defendant Rootes v Shelton (P p402)
Fundamentals of Law (BL502)
Contributory Negligence If the plaintiff
failed to take precautions for his own safety Such failure contributed to his injury
Then the plaintiff’s compensation is reduced Damages are apportioned according to the
relative degree to which the parties negligence contributed to the loss
Partial defence Burden on the defendant
Fundamentals of Law (BL502)
Measure of Damages The aim of damages is to put the plaintiff
back in the same position that he would have been but for the defendant’s negligence
For personal injuries claims the plaintiff must sue “once and for all” for all his losses both past and future. This is a calculated guess
Fundamentals of Law (BL502)
Mitigation of Damages Plaintiff has a duty to mitigate losses
Cannot claim losses which could have been reduced or avoided by the taking of reasonable steps
Fundamentals of Law (BL502)
Measure of Damages (cont.) Damages for personal injuries include
Special damages Medical expenses Past loss of wages
General Damages Loss of enjoyment of life Loss of expectation of life Future economic loss Pain and suffering
Fundamentals of Law (BL502)
Measure of Damages (cont.) Damages for property damage
Usually measured by the difference in value before and after the accident
Consequential loss may be claimed
Fundamentals of Law (BL502)
The Law of Torts
Negligence
Negligent Misrepresentation
Fundamentals of Law (BL502)
Negligent Misrepresentation Most often results in purely financial loss Recovery of “pure economic loss” was denied
by the courts for many years as: No duty of care Damage too remote Donoghue v Stevenson was confined to physical
damage Economic effects may be more extensive than
physical effects
Fundamentals of Law (BL502)
Negligent Misrepresentation (cont.) Now allowed, but very narrow Difficult to Develop tests to avoid too onerous
a duty
Fundamentals of Law (BL502)
Financial LossPlaintiffs can now recover damages for purely
financial loss where: The plaintiff’s loss flows from damage to the
property of a third party and defendant knows that this particular plaintiff would suffer financial loss if the defendant damaged the third parties property Caltex Oil v The Dredge “Willemstad” (notes)
The plaintiff suffers loss as a result of the plaintiff being supplied defective products Junior Books Ltd v Veitchi Co Ltd (notes)
Fundamentals of Law (BL502)
Financial Loss (cont.) A builder owes a duty to a subsequent purchaser
Bryan v Maloney (1995) 69 ALJR 375 Where:
plaintiff belonged to a determinate or an indeterminate class
Plaintiff’s was vulnerable & depended on defendant
Defendant knew of plaintiff’s vulnerability Defendant assumed responsibility for the risk
being taken by the plaintiffPerre & Ors v Apand Pty Ltd
Fundamentals of Law (BL502)
Negligent Misrepresentation Hedley Byrne v Heller (1964)
A duty of care can be owed where a careless statement causes economic loss
To prevent too wide a duty being owed, it only applied where there was a “special relationship”
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