HI5018 Introduction to Business Law Week 4 Law of Torts (2)

HI5018 Introduction to Business Law

Week 4

Law of Torts (2)

2HI5018 Introduction to Business Law

Holmes Institute 2011

Occupier’s Liability

Occupier’s Liability Occupiers must take reasonable care and owe a common

law duty of care to ensure that anyone (even a trespasser) who comes onto those premises is not injured:

Hackshaw v Shaw (1984)




Who is an occupier? An occupier is any person who has occupation or control,

whether it is partial or whole, of land or a structure standing on the land:

Consolidated Broken Hill Ltd v Edwards [2005]




This tort is now part of negligence: Australian Safeway Stores Pty Ltd v Zaluzna (1986)

Occupiers owe a duty of care to entrants to ensure they do not suffer injury on the premises.

Where the risk is obvious, the duty will be minimal.




To establish occupier’s liability, a plaintiff must prove: The defendant has occupation or control of the land

or structure; and

The defendant was negligent,— that is, there was a duty of care owed that was breached and damage was sustained by the plaintiff.



Categories of negligence

Product Liability (Defective Products) Manufacturer’s liability exists in both common law and

statute.

The defect must be hidden and unknown to the consumer:Grant v Australian Knitting Mills (1936)




Defective structures Where the premises suffer a defect and it could be

reasonably foreseen that a person could suffer injury as a result, the builder, architect or engineer may be liable if the plaintiff suffers damage as a result of the defect:

Bryan v Maloney (1995)




Negligent misstatements

“a statement of fact, advice or opinion made in business that is relied upon by another but which is inaccurate or misleading”




Negligent misstatements Duty on the defendant to avoid making careless

statements which cause harm.

Hedley Byrne v Heller (1964) established that the law

will imply a duty of care in the making of statements.




Negligent misstatements A duty of care extends not only to professional

advisers but also to persons who provide information:MLC v Evatt (1968)

This duty of care also extends to advice that is given in ‘serious circumstances’: Shaddock v Parramatta City Council (1981)




Negligent misstatements A duty of care also arises and exists where there is a

‘special relationship’ between the parties:

San Sebastian v Minister Responsible for Administering Planning and Assessment Act (1986)




Negligent misstatements An inadequate response can amount to a negligent

misrepresentation if it is relied upon by the plaintiff:

Pyrenees Shire Council v Day (1998)




Negligent misstatements A plaintiff must establish the following to recover damages:

A duty of care - professional relationship or causal;

A breach of duty - D ought to have known that P would rely upon the statement and was requested for a serious purpose; and

Damage - causal connection between D’s omission and the damage suffered - the causative element.



Employer liability

Employer liability or Vicarious liability Vicarious liability is a form of strict liability which has

the effect of making the employer an insurer of the employee.



Employer liability

Employer liability or Vicarious liability An employer may be vicariously liable where an

employee acting in the course of their employment injures another person:Cassidy v The Minister (1951)

The action of the employee must be connected to the employment:Deatons Pty Ltd v Flew (1949)



Employer liability

Employer liability or Vicarious liability An independent contractor cannot make

an employer vicariously liable.

An employer who is vicariously liable may have an action against the negligent employee for breach of a term of their contract of employment:Lister v Romford Ice & Cold Storage (1957)



Intentional torts

Trespass Trespass is a direct interference with the person or

property of the plaintiff by the intentional or negligent actions of the defendant and is actionable per se (without proof of damage).

The defendant must have intended to do the harmful act.



Intentional torts

Trespass to land Areas covered include:

• entry upon land without permission;

• remaining after permission has expired; and

• leaving things on the land.



Defamation

What does defamation mean?

Defamation involves a false statement about a person that is likely to damage their reputation in the community.



Defamation

Defamation action - What is required?

Step 1: Is the material defamatory? The material was defamatory according to its

‘ordinary and natural meaning’ and Mirror Newspapers Ltd v Harrison (1982)

in the circumstances was defamatoryMorosi v Broadcasting Station 2GB P/L (1980)



Defamation


Step 2: Does the material refer to P? The statement referred to or identified the plaintiff – or

it can be reasonably concluded that those who know P would conclude the statement is about P:

E Hulton & Co v Jones (1910)



Defamation


Step 3: Was the statement published? Made known to a third party capable of understanding

the defamatory meaning.

Step 4: Does D have any defences?



Miscellaneous torts

Public Nuisance An unlawful act which interferes with an enjoyment

or right of the public, of which the plaintiff is a member, but one where the plaintiff can show that they have suffered special damage over and above that of the public.

The remedy for a plaintiff is usually damages and/or an injunction.



Miscellaneous torts

Private Nuisance The person who has a legal right to actual possession

(occupier) of the land can complain and must establish:

• indirect interference with the use or enjoyment of their land by the defendant by things coming on to the land; and

• damage — either physical damage to land, buildings or goods or an interference with the enjoyment of the land.



Miscellaneous torts

Private Nuisance

Remedies:

The usual remedy is an injunction to stop the nuisance.

Although an alternative remedy to going to court may be abatement.

Documents

HI5018 Introduction to Business Law Week 4 Law of Torts (2)