Negligence 1. Duty of Care 2. Breach of duty of care p 718 c) p 724

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1 Negligence 1. Duty of Care Donoghue v Stevenson [1932] AC a duty of care could exist in any situation where loss, damage or injury to one party was reasonable foreseeable (foreseeable harm) - the relationship between the parties was sufficiently close to require one to take care not to put the other at risk. (reasonable imposition) 2. Breach of duty of care p 718 Civil Law (Wrongs) Act 2002 (ACT) s43 (1) a person does not breach a duty to take precautions against a risk of harm unless a) the risk was foreseeable b) the risk was not insignificant c) in the circumstances, a reasonable person would have taken the precautions. Standard of care and failing to meet it: Depends on what a reasonable man would do by the way of response to the risk: Civil Law (Wrongs) Act 2002 (ACT) s43(2) a) the probability that the harm would occur if care were not taken (if a risk is remote and the occurrence unlikely, a tortfeasor will probably not be liable if loss, damage or injury does occur. REMOTE. Gillespie v Commonwealth (1991) 105 FLR 196) b) the likely seriousness of the harm: (a greater standard of care is also required if it is reasonabley foreseeable that someone with a known vulnerability would suffer more serious harm than normal because of that vulnerability. Paris v Stepney Borough Council [1951] AC 367) c) the burden of taking precautions to avoid the risk of harm p 724 (The required standard of care should bear a direct relationship to the risk that the defendant s acts or omissions might cause loss, damage or injury and to what he or she could and should have done to mitigate that risk. Wyong Shire Council v Shirt (1979) 146 CLR 40 Therefore, if the risk is minimal and the defendant has done what is 1

2 appropriate, he or she should not be liable if the unexpected happens.) The precautions required are those that a reasonable person would take in the circumstances. If a particular measure is not practical, or if it would be unwarranted or unnecessary, it will not be demanded. Bolton v Stone d) the social utility of the activity that creates the risk of harm p728 Watt v Hertfordshire County council [1954] 2 All ER Damage The law recognises the damage At least three instances where the law won t recognise damage: 1. where the damage suffered is the termination of some benefit flowing from criminal or fraudulent activity (Burns v Edman [1970]2 QB 541) 2. where the damage is too vague to be legally recognised (Harriton v Stephens) 3. where the plaintiff cannot prove that any loss, damage or injury was suffered at all. It was caused by the negligence To establish factual causation a plaintiff has to show, on the balance of probabilities, that the defendant s negligence was a necessary condition of his or her loss, damage or injury. (Strong v Woolworths Ltd (2012) 285 ALR 420) But for test - but for the acts or omissions complained of, would the plaintiff have sustained the loss, damage or injury actually suffered? It is not too remote A defendant is not liable for all possible consequences of his or her negligence, only for reasonably foreseeable damage. The eggshell skull rule: you must take your victim as you find him - if the injury is foreseeable the tortfeasor will be liable for all of its consequences even if they were not all foreseeable Defences to negligence Defendants can always defend an allegation of negligence by arguing that the plaintiff has not proved the necessary elements. That is, they can argue that the plaintiff was not owed a duty of care, or that there was no breach of 2

3 that duty, or that if there was, the plaintiff did not suffer recognisable damage. Contributory negligence If a plaintiff is in any way responsible for his or her own loss, damage or injury the damages awarded will be reduced proportionately to recognise the shared fault. In practice though, a defendant can prove contributory negligence by showing the plaintiff: 1) Breached a duty owed to the defendant; or 2) Failed to exercise reasonable care for his or her own safety. Presumption of contributory negligence injured person intoxicated s 95 (1) Contributory negligence must be presumed if the injured person was intoxicated at the time of the accident and the defendant claims contributory negligence. (2) The presumption can be rebutted only if the injured person establishes, on the balance of probabilities, that (a) the intoxication did not contribute to the accident; or (b) the intoxication was not self-induced. (3) If the presumption is not rebutted, the damages the injured person would be entitled to, apart from the contributory negligence, must be reduced to the extent that the court considers just and equitable having regard to the injured person's share in the responsibility for the injury. Presumption of contributory negligence injured person relying on intoxicated person s 96 (1) Contributory negligence must be presumed if (a) the injured person (i) was at least 16 years old at the time of the accident; and (ii) relied on the care and skill of a person ( A ) who was intoxicated at the time of the accident; and (iii) knew, or ought to have known, that A was intoxicated; and (b) the accident was caused by A's negligence; and (c) the defendant claims contributory negligence by the injured person. (2) The presumption can be rebutted only if the injured person establishes, on the balance of probabilities, that (a) the intoxication did not contribute to the accident; or (b) the injured person could not reasonably be expected to have avoided the risk. 3

4 (3) If the presumption is not rebutted, the damages the injured person would be entitled to, apart from the contributory negligence, must be reduced to the extent that the court considers just and equitable having regard to the injured person's share in the responsibility for the injury. (4) For this section, a passenger in a motor vehicle is taken to rely on the care and skill of the driver. (5) The common law defence of voluntary assumption of risk does not apply to a matter to which this section applies. Volenti non fit injuria (voluntary assumption of risk- the plaintiff voluntarily assumed the risk) In the ACT apart from equine activities the common law applies: 1) Defendant must show that the plaintiff knew of the risk 2) And freely and willingly accepted that risk Civil Law Wrongs Act 2002 (ACT) A. S 8(1) volunteer A volunteer does not incur personal civil liability for an act done or omission made honestly and without recklessness while carrying out community work for a community organisation on a voluntary basis. (subject to some limitations in s 8(2) B. S 5 (1) good samaritans A good samaritan does not incur personal civil liability for an act done or omission made honestly and without recklessness in assisting, or giving advice about the assistance to be given to, a person who is apparently (a) injured or at risk of being injured; or (b) in need of emergency medical assistance. (subject to some limitations in s 5 (2) Negligent misstatement 1. Assumption of responsibility by the adviser. 2. Reasonable reliance by the advised. 4

5 Contract Formation 1. Agreement: offer and acceptance Offer: p75 State the terms on which that party is prepared to contract Be made to another person Indicate that the offeror is prepared to be legally bound on acceptance Mere puff: Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256 Defence in relation to advertising claims: if the statement is a mere puff, it will not be an offer because the maker of the statement did not intend it to be so. Invitation to treat: Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1953] 1 QB 401 Invitation to treat carries no legal obligation. (most display of goods on shop shelves, in catalogues and advertisements) Bilateral contracts most contracts are of this type. Both parties promise to undertake their respective contractual obligations Unilateral -a promise in return for an act. The contract comes into being on the performance of an act by only one party the offeree. Eg reward notice. Termination of offers: p79 A binding contract will result only from the acceptance of an offer while the offer remains operative or in existence. An offer will cease to be operative if it is: 1. revoked by the offeror 2. lapses with the passing of time 3. Rejection (new offer rises) 4. Death Acceptance: - Who can accept? Only the persons to whom an offer was addressed A purported acceptance of an offer directed to another person is the making of a new offer, and neither party is bound by the new offer until it is accepted. Acceptance must be in accordance with the terms of the offer Acceptance must be communicated to the offeror(silence insufficient) Felthouse v Bindley (1862) 142 ER 1037 Waiver of need for communication is implied in the case of unilateral cases, but acceptance has to be in reliance on the offer 5

6 Acceptance must correspond to the offer and be in response to it - Postal rule: acceptance effective when posted (ie before it is actually communicated) Adams v Lindsell (1818) 106 ER 250 text p Instantaneous communication at common law acceptance effective when and where communicated 2. Intention to create legal relations - Commercial relationship where the agreement occurs in a business or commercial context it is likely that the parties intended to enter into legal relations (make a legally enforceable contract) although there might be evidence of a contrary intention. - Domestic or social agreement presumption is they do not intend to create a legally binding contract, unless evidence of contrary intention: o Formal written contract o One party incurring expense o Commercial nature of agreement o Contemplation of legal enforceability Letters of comfort typically given to creditors to support borrowings of subsidiaries and typically not to be legally binding even though given a commercial context. Evidence of contrary intention: Jones v Vernon s Pools Ltd [1938] 2 All ER 626. Lottery winner was unable to claim the prize because the entry and its acceptance was stated not to give rise to any legal relationships and was said to be binding in honour only. 3. Consideration p93 Price of the promise Dunlop Pneumatic Tyre Co Ltd v Selfridge and Co Ltd [1915] AC 847 Consideration is the price you pay to buy another person s promise. Consideration must move from the promisee Coulls v Bagot s Executor and Trustee Co Ltd (1967) 119 CLR 460 but where there are joint promisees consideration need only be provided by one of them. Past consideration is no consideration Roscorla v Thomas [1842] 3 QB 234 Consideration must be legally sufficient but need not be commercially adequate 6