Week 1 Lecture. Nature of Tort Law

Transcription

1 Trts Week 1 Lecture Nature f Trt Law The Law f Trts Law f civil wrngs. Trt = crked r twisted Trtfeasr is liable t the victim Cmpensatin fr persnal injury & prperty damage caused by the cnduct f thers Varius trts: Negligence Nuisance Trespass t land Assault & battery Judge made law (case law) and legislatin Varius trts ften have verlapping remedies The Trt f Negligence Negligence is cnduct which causes harm Duty f care Heaven v Pender (1883) 11 QBD 503 Facts: Plaintiff was a ship painter, defendant wned the ship Bth parties entered a cntract with Plaintiffs emplyer fr plaintiff t paint ships sides Defendant erected stages arund sides f the ship t allw access fr painting, ship lcated at defendants dcks Rpe snapped n stages, plaintiff fell and was injured. Sued fr defendants inability t take reasnable care Plaintiff wn at cunty curt On appeal Queen s Bench Divisin vted in favur f defendant, stating n allwance t enter premises and n cntract between P and D Plaintiff appealed again Issues: Did the defendant we the plaintiff a duty f care? If s, fr what reasn Decisin: Curt f appeal unanimusly held defendant wed plaintiff a duty f care Cttn LJ and Bwen LJ agreed a duty f care existed, but disagreed with Brett MR s test fr existence f duty f care Cttn and Bwen als held defendant impliedly invited the plaintiff nt his premises. Therefre duty f care is wed as ccupier f premises wes a duty f respnsible care t invitees n thse premises

2 Elements f negligence Defendant wes plaintiff a duty f care; Duty f care is breached and Because f the breach, plaintiff suffers, injury r lss that is reasnably freseeable Dnghue v Stevensn [1932] AC 562 THIS IS THE NEIGHBOUR CASE Facts: Plaintiff was given ginger beer frm friend at a café which was made by defendant Plaintiff drank it nly t discver a decmpsing snail in the bttle. Plaintiff suffered shck and severe gastrenteritis as a result, sued Defendant claiming failure t take reasnable manufacturing the ginger beer At huse f lrds, D claimed relatinship f cnsumer did nt give rise t a duty f care at cmmn law Issue: Did the defender we a duty f care t plaintiff fr a duty f care t take reasnable care fr manufacturing ginger beer? Decisin Majrity f 3:2 vted in favur f Plaintiff 2 dissenting judges claimed n duty f care wed due t relatinship f cnsumer and manufacturer was nt a specific ne, therefre n rise t duty f care Majrity gave a general test t determine existence f duty f care: The rule t lve yur neighbur, nt t injure. Yu must take reasnable care t avid acts f missins which are reasnably freseeable t injure yur neighbur. Freseeability Freseeability f sme type f harm Freseeability f wh might be harmed Recgnised duty f care situatins Recgnised Duty f care situatins Occupiers liability fr persns entering his/her premises Fiduciary relatinships (e.g. slicitr client, nurse/dctr patient) Manufacturer t a cnsumer f their prduct Strng v Wlwrths (2012) 247 CLR 182 Dnghue v Stevensn [1932] AC 562 Rgers v Whittaker (1992) 175 CLR 479 Sullivan v Mdy (2001) 207 CLR 562

3 Causatin f damage Damages a Plaintiff in a negligence case must prve t legally recgnise harm. Strng v Wlwrths (2012) 247 CLR 182 Adeels Palace Pty Ltd v Mubarak (2009) 239 CLR 420 March v E and MH Stramare Pty Ltd (1991) 171 CLR 506 Defences Cntributry negligence Failure f an injured party t act carefully, a cntributing factr t the injury they suffered Vluntary assumptin f risk Vlenti nn fit injuria Other cncepts applied in Negligence Vicarius liability Intxicatin Illegal cnduct Department f husing & wrks v Smith (N 2) (2010) 265 ALR 490 Statutry Refrm Wrngs Act (1958) VIC Trts Week 2 Lecture Duty f Care and Affirmative Actin Duty f Care Heaven v Pender (1883) 11 QBD 503 Dnghue v Stevensn (1932) AC 562 neighbur test (pg. 296) - Huse f Lrds decided manufacturer wes a duty f care t any persn wh uses their prduct The risk f damage/lss/injury must cme under the umbrella f what is reasnably freseeable Chapman v Hearse (1961) 106 CLR 112 HCA fund Mr Chapman did we Dr Cherry a duty f care - he had been respnsible fr initiating this series f events (driving negligently, being injured, being thrwn ut f his vehicle) - cnsequence that is Dr Cherry prviding assistance and subsequently being struck by anther car and killed was reasnably freseeable

4 The curt can always be persuaded. Depends n: Freseeability - a sequence f events must be taken int accunt - wuld what happened actually had happened if the initiating circumstance had nt ccurred Negligence: Duty f Care wed Breach ccurs causing: Damage Lss Injury Reasnably freseeable that breach wuld ccur. Duty f Care in Different Situatins Pg Cle v Suth Tweed Heads Rugby League Ftball Club (2004) 217 CLR 469 Sued the club fr cntinuing t serve her alchl beynd apprpriate limits. Curt decided that the club wed her a duty f care regarding the cnsumptin f alchl while she was n the premises. When she left the premises she was n lnger under their duty f care Discusses what the club culd have dne had n general duty f care t prevent the plaintiff f drinking t a pint t which she was severely intxicated - Gleesn The case abut whether a duty f care is wed r nt is nt simple - pg. 272 Kuhl v Zurich Financial Services (2011) 234 CLR Gt her arm caught in a hse and gt sucked in further resulting in serius physical injury. The maker f the hse wed her a duty f care (manufactures liability) Did nt include a duty t warn the users f the hse abut its vacuum effect HCA held that the maker f the hse had nt breached its duty f care as it did nt have a respnsibility t warn users Sued the maker f the hse and nt the emplyer Different types f cases present different revelatins abut duty f care. Relatinship f dependency r where this an unequal balance f pwer r expertise. E.g. Parent/child, Teacher/student Schl/student, Nurse/patient Hw Australian Curts have determined the Duty f Care The Dnghue v Stevensn 2 stage prcess - Was the damage r lss r injury a reasnable freseeable cnsequence f the Defendants failure t take reasnable care?

5 Was there a sufficient prximity between the plaintiff and the defendant t bring them int a neighbur relatinship? Gala v Prestn (1991) 172 CLR 243 (pg. 276) (PROXIMITY/ NEIGHBOUR TEST) The high curt tssed ut the 2 stage prcess t see if duty f care existed and substituted the salient features test t decide if a duty f care exists - the curt must decide which factrs f the particular case/matter must be taken int cnsideratin t decide if a duty f care actually des exist Salient = mst imprtant/relevant/significant/prminent What is salient varies with the different facts f each matter (there are 17 listed at judgment f CJ Alsp - Caltex Refineries v Stavar (2009) 75 NSWLR 649 Freseeability and type f harm Degree f cntrl that the defendant exercised t avid the harm The plaintiff s vulnerability and reliance n the defendant The trust that the plaintiff had in the defendant Particular relatinship between plaintiff and defendant A Neighbur Apprach t Duty f Care IMPORTANT Identify any recgnised duty f care situatin - is there a vulnerable plaintiff? Have t shw a duty f care exists befre can decide if there has been a breach Decide if there has been a breach - either by an act r missin - if they did the act was there smething wrng with the way they did the act? Find a cnnectin between the breach and the damage/lss/injury Determine if the lss/damage/injury was a reasnably freseeable cnsequence The Trt f Nn-Feasance The duty t act - r take affirmative actin - ding smething Nt acting when we shuld act results in the trt f nn-feasance Because f the special relatinship the dependence is required t take psitive actin t ensure the safety f the plaintiff - cases prvide different pwer imbalance relatinships Salient features apprach Is subjective because it desn t specify which features are salient - it is a matter f chice - skill f legal practitiner Determining Freseeability Freseeability f harm r type f harm. Degree f cntrl the D exercised t AVOID THE HARM, Vulnerability f the Plaintiff Relance / trust Plaintiff had in the Defendant Type f Activity