LAWS1100 Final Exam Notes

Transcription

1 LAWS1100 Final Exam Notes Topic 4&5: Tort Law and Business (*very important) Relevant chapter: Ch.3 Applicable law: - Law of torts law of negligence (p.74) Torts (p.70) - The word tort meaning twisted or crooked, and has become established in the English language as a general synonym for wrong. - In very general terms, a tort is a civil wrong (as opposed to a criminal conduct) other than a breach of contract, which the law will redress by an award of damages - The object of the law of torts is to protect those general rights of every person which are conferred as a matter of law (e.g. interests in personal security and reputation, the right of protection of personal property) - The categories of tort includes: negligence, nuisance, defamation, deceit, conversion, passing off, tortuous interference with contractual relations, trespass to goods, to the person or to land. - The primary objective of tort liability is to compensate the injured person by compelling the wrongdoer to pay for the damage they have occasioned& also the law of torts is concerned with allocating risk and distributing losses caused by accidents- via insurance 1. Intentional and unintentional torts Intentional torts a) Defamation - The law of defamation is concerned with the protection of a person s reputation and to balance that concern with the right of free speech - Defamatory information is material that is published, orally or in written form, to third parties and which tends to impugn and lower a person s reputation by general community standards - A person defamed may bring an action for the tort for defamation, seeking

2 compensation for the damage caused to their reputation - The plaintiff does not have to prove that the defendant intended to defame, it is sufficient if the effect of the publication was defamatory b) Nuisance - The focus of nuisance, unlike negligence, is on the harmful result rather than the type of conduct that caused it - Nuisance as a catch-all for a multitude of ill-assorted sins, linking offensive smells, crowing roosters, obstructions of rights of way, defective cellar-flaps, sweet queues, lotteries, house of ill-fame and a host of other rag-ends of the law - The law of nuisance is about interference with an occupier s use and enjoyment of land and the conflicts that arise from competing use of land c) Deceit - Where a fraudulent representation has been made that is not a term of the contract, the innocent party may bring an action for the tort of deceit - There must be a false statement of past or present fact; made before or at the time the contract was entered into, by the defendant or their authorized agent; and that was intended to induce and did induce entry into the contract to the detriment of the plaintiff 原告 - There must be evidence to suggest that the misrepresentation was made fraudulently d) Trespass - Which mean interfere with the person, chattels or land of another - Trespass to the person may give rise to an action for civil or tortious assault, battery or false imprisonment, if proven to a right to damages Unintentional torts - Negligence is the most significant unintentional torts

3 2. Tort of negligence Tort of negligence/law of negligence (p.74)- law of torts: - The cardinal principle of negligence is that the party complained of should owe to the party complaining a duty to take care and the party complaining should be able to prove that he [she] has suffered damage as a consequence of a breach of that duty - Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or something which a prudent and reasonable man would not do Conditions: Plaintiff must prove 3 elements: 1. The tortfeasor (wrongdoer) owed them a duty of care; and; 2. There has been a breach of that duty of care. This involves consideration of whether the defendant has met the standard of care required by the law of negligence. The standard expected is that of the reasonable person ; 3. The plaintiff has suffered loss, damage or injury and the injury was caused by

4 the breach. This means that the injury suffered by the plaintiff was reasonably foreseeable by the defendant and that the injury was not too remote. There must be a causal connection between the breach and the injury suffered by the plaintiff. In law, this is usually referred to as causation and remoteness of damage There are 2 considerations before liability in negligence arises: - Whether there is any defence to negligence; this involves a consideration of contributory negligence and voluntary assumption of risk - Whether the recovery for the injury sustained by the plaintiff is excluded or limited by a statute of that state or territory (from the civil liability reforms brought in by most states and territories after recommendations contained in the Ipp Report) Duty of care (p.77) - A defendant owes a duty of care to their neighbour : to persons who are so closely and directly affected by the defendant s actions that they ought to have been in the defendant s mind; that is, the defendant should reasonably foresee them being affected by their actions or omissions. - Duty of care is not a moral obligation, or social responsibility, but a legal duty of care, breach of which might result in liability of damages Neighbour principle In Australia, the neighbour principle, or test of reasonable foreseeability - Did the defendant owe the plaintiff a duty to take reasonable care? - It was essentially a test of reasonable foresight. - Should the defendant have appreciated that their actions would affect the plaintiff in a way that they would put the plaintiff at risk if they acted carelessly? - This involves the application of an objective test: was the exposure of that type of plaintiff to that kind of risk foreseeable by the hypothetical reasonable person? Reasonable foreseeability

5 The plaintiff must be able to show that: - He/she belonged to that class of persons whom the defendant should have regarded as being at risk (though the precise loss/injury/damage actually suffered by the plaintiff may not have been foreseeable). - All that is required that it was reasonably foreseeable that the class of people, of whom the plaintiff was one, could have suffered some loss/injury as a result of defendant s acts or omissions. Proximity - Duty of care is not only dependent upon reasonable foreseeability of harm, but it also encompasses the separate and substantive requirement of proximity of relationship between the defendant and the plaintiff. Physical proximity in terms of time and space Circumstantial proximity which refers to the particular circumstances existing between certain categories of persons such as employer and employee, or professional and client Causal proximity in the sense of the interrelationship between the defendant s act and the plaintiff s injury or loss Incremental deductive approach - In Hill v Van Erp a majority of a differently constituted High Court shifted away from proximity and towards what has become known as the incremental deductive approach - This refers to the law developing novel categories of negligence incrementally and by analogy with established categories, rather than by a massive reformulation of a prima facie duty of care. - In Sullivan v Moody the High Court unanimously rejected proximity as a test for establishing the existence of duty of care. State of flux - The law relating to the duty of care is currently in a state of flux. - Proximity no longer seems to be the definitive test although the High Court has not clearly and unambiguously stated an alternative to the proximity test. - Indeed it may not be possible to apply a single test.

6 - The foreseeability of risk of injury, proximity, policy considerations (such as the spectre of exposure to infinite liability (the indeterminate liability factor ) and resource implications if a duty of care were imposed) and whether the case resembles other established categories of duty of care may all be relevant considerations for the court. Beach of duty of care (p.79) - The breach of duty of care is a matter of fact and is ascertained by reference to what is reasonable in the defendant s circumstances- that is, the reasonable man test How may a breach of duty of care occur? What standard of care is expected of a professional person? - The standard of care expected of a professional person is of a reasonable professional person in the circumstances of the defendant. - The general test for a reasonable standard of care owed by a professional person is that of an ordinary competent practitioner exercising ordinary professional skill Loss, damage or injury (p.81) - A legally recognizable damage is a damage which the law is prepared to compensate In deciding whether or not a particular injury is recoverable, the court considers the following rules: - The injury must have become actual: a surgeon failed to warn a patient of a risk inherent in an operation. Although the operation performed

7 competently, the risk eventuated and injury was sustained. The surgeon was held to be liable - The injury must flow from the breach: the defendant parked his truck in the middle of a 4-lane road to unload goods for market. The plaintiff, who was very drunk, was injured when he drove into the parked truck. The injury to the plaintiff was held to be caused by the defendant s breach - The injury must not be too remote: the defendants negligently allowed oil to spill into a harbor. The oil spread to the wharf where some ships were undergoing repairs. The plaintiff s ship was damaged by the ensuing fire. The risk of fire was held to be remote, but foreseeable What kinds of injury may be recognized by law? - Physical injury - Nervous shock/mental/psychiatric injury - Economic loss - Damage to property Using the Wrongs Act (1958) as the template jurisdiction, the following provisions are the most significant for our purposes: Section 48 (1) provides that a person is not negligent in failing to take precautions against a risk of harm unless: - The risk was foreseeable (that is, it is a risk of which the person knew or ought to have known) - The risk was not insignificant - In the circumstances, a reasonable person in the person s position would have taken those precautions Under s48 (2), in making this latter determination, the court is to consider: - The probability that the harm would occur if care were not taken - The likely seriousness of the harm - The burden of taking precautions to avoid the risk of harm - The social utility of the activity that creates the risk of harm Section 48(3) provides that, for the purpose of subs 1(b) above: - Insignificant risks include, but are not limited to, risks that are far-fetched or

8 fanciful - Risks that are not insignificant are all risks other than insignificant risks and include, but are not limited to, significant risks Section 49(other principles): - Subsection (a) provides that the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible - Subsection (b) the fact that a risk of harm could have been avoided by doing something differently does not if itself affect liability for the way in which the thing was done - Subsection (C) the fact that action is taken subsequently to avoid a risk of harm doesn t of itself affect liability in respect of the risk or amount to an admission of liability Causal connection (p.83) - The general test used to determine the issue of causation is the but for test - The test involves consideration of a hypothetical situation where the circumstances of the case are the same except for the defendant s negligence - If, in this hypothetical situation, the plaintiff would not have suffered the damage, then the defendant s negligence is taken to be the effective cause of the plaintiff s damage - If the plaintiff would have suffered the damage in any event, then the defendant s negligence cannot be regarded as the effective cause of the plaintiff s damage Remoteness(p.84) - The courts recognize that, because the consequence of negligent conduct may continue indefinitely, some limitation must be placed on the extent of a defendant s liability - The defendant will not be liable for damage that the court considers to be too remote - The test to be applied is whether the damage was reasonably foreseeable, of if it was not, whether it was of the same type or kind as forseeable damage - If damage was out of the ordinary in the precise manner in which it was

9 sustained or in its make-up, was it nevertheless within the broad type of foreseeable damage? The remoteness of damage issue allows the court to consider whether and to what extent, a defendant should have to be responsible for the consequences of their negligent conduct Defences (p.85) Voluntary assumption of risk If the defendant can establish that the plaintiff was fully aware of the risk and that they voluntarily assumed the risk, the defendant can be excused of all liability in negligence Volenti non fit injuria: to a willing person no injury is done Contributory negligence and proportionate liability Contributory negligence on the part of the plaintiff involves the plaintiff s failure to take precautions for their own safety Other defences to an action for negligence - Denial of negligence - Disclaimers/Exclusion clauses - Inevitable accident The main defences to an action in negligence are voluntary assumption of risk and contributory negligence Vicarious liability(p.89) - When a person is liable for their own wrong, that person is said to be primarily liable - Vicarious liability secondary liability for a wrong committed by another - Is most commonly used to refer to the liability of an employer for the wrongs committed by their employees in the course of their employment - Imposed in circumstances where considerations of public policy are paramount - E.g a truck driver driving negligently in the course of his employment, causing an accident and personal injury It is usually pointless pursuing the truck driver, who have no means of paying damages or the insurance cover required to meet a judgment debt Here, vicarious liability means that the employer is made liable- and not only because the employer benefits from the employment, and should therefore

10 shoulder the burden It is the employer who carries liability insurance and this is what the law of torts is all about Which is allocating risk and distributing loss throughout society via the mechanism of insurance Remedies (p.89) - An award of damages is the typical remedy for a tortious wrong. - The primary purpose of tort liability is to compensate the person who is injured by making the person at fault pay for the damage they have caused. Notions of punishment generally have no place in an award of tortious damages Tortious damages seek to restore the injured person to their original position before the wrong was committed. Damages in contract, on the other hand, seek to place the innocent party in the position they would have been in had the contract not been breached; in other words, had the contract been performed according to its terms. Contracts damages thus look to the future and compensate for loss of expected profit - The objective of the award is to place the person injured in the position they would have been had the tort not been committed. In other words, the objective is to restore the injured person, so far as money can do so, to their original position.