Question 1

What is negligence? 1

Accepted Answer

Donoghue v Stevenson case is the origin of the modern law of negligence

Question 2

What is negligence? 2

Accepted Answer

Negligence is conduct (or a failure to act) that breaches a duty to take care

Question 3

What is negligence? 3

Accepted Answer

A person will be negligent if they fail to take reasonable care to prevent 
loss, damage or injury to others whom they could reasonably foresee 
might be harmed if that care was not taken

Question 4

What is negligence? 4

Accepted Answer

Negligence is a tort

Question 5

What are torts? -  A tort is a civil wrong committed by one person (a tortfeasor) which detrimentally affects another

- Tort does not require a contractual relationship
- Different from a crime:

Accepted Answer

•An action for tort is brought by the person who is affected
 •A crime is prosecuted in court by the state

Question 6

Categories of tort include:

Accepted Answer

• Tort of negligence
 • Trespass to land
 • Nuisance
 • Trespass to the person
 • Defamation
 • Deceit

Question 7

Elements of negligence -  To establish a cause of action for the tort of negligence, a plaintiff must prove:

Accepted Answer

- Defendant owed 
plaintiff a legal duty 
of care
-  Defendant has 
breached that duty 
of care
- Plaintiff has suffered 
injury or harm 
(damage) caused 
by that breach

Question 8

Defendant owed 
plaintiff a legal duty 
of care

Accepted Answer

Did the defendant owe 
a duty to the plaintiff to 
take reasonable care to 
avoid the injury or harm 
that occurred?

Question 9

Defendant has 
breached that duty 
of care

Accepted Answer

Did the defendant fail to 
exercise the required 
standard of care?

Question 10

Plaintiff has suffered 
injury or harm 
(damage) caused 
by that breach

Accepted Answer

Was the plaintiff’s loss 
or harm caused by the 
defendant’s negligence 
and was the loss or 
harm reasonably 
foreseeable?

Question 11

Duty of care - reasonable foreseeability 1

Accepted Answer

When carrying out a task or activity, we owe a duty of care to those classes of persons we should reasonably have in our minds as being at risk of injury due to our conduct

Question 12

Duty of care - reasonable foreseeability 2

Accepted Answer

The precise injury or event does not have to be foreseeable – just the type of injury or event

Question 13

Duty of care - reasonable foreseeability 3

Accepted Answer

To be reasonably foreseeable, the injury or event must not be ‘fanciful’ or ‘far-fetched’

Question 14

Duty of care – established duty - Common law has developed 
examples of situations where a 
duty of care has been found to 
exist

Accepted Answer

These are what is known as an 
established duty of care

Question 15

Duty of care – established duty - If the plaintiff can show that their 
situation is one where an 
established duty of care applies, 
then they

Accepted Answer

don’t need to go further 
to prove that a duty of care was 
owed by the defendant

Question 16

Established duty of care examples - 
Manufacturers

Accepted Answer

- Duty of care owed by manufacturers 
to consumers
- Duty of care may be owed by 
manufacturers to innocent 
bystanders

Question 17

Established duty of care examples – 
Property owners

Accepted Answer

- Duty of care owed by property 
owners to visitors to their property
-  e.g. Australian Safeway Stores Pty 
Ltd v Zaluzna (1987)

Question 18

Established duty of care examples – 
Service providers

Accepted Answer

Duty of care owed by repairers and 
installers – treated the same as 
manufacturers

Question 19

Established duty of care examples – 
Service providers - Duty of care owed by professionals 
(engineers, architects, doctors)

Accepted Answer

Duty to take 
reasonable care not 
to cause 
foreseeable injury in 
providing the service

Question 20

Duty of care – novel duty -  If the plaintiff cannot show that an established 
duty of care applies, they will have to prove 
that the defendant owed them a duty of care 
(this is known as a novel duty of care)

Accepted Answer

The plaintiff will have to prove that it was 
reasonably foreseeable that the plaintiff’s 
actions had the potential to cause harm to the 
defendant

Question 21

Breach of duty of care - Having established 
duty of care exists, 
plaintiff has to 
show duty of care 
was breached

Accepted Answer

Have to establish 
defendant’s failure 
to exercise the 
required standard 
of care

Question 22

What is the 
required 
standard of care?

Accepted Answer

What a reasonable 
person, in the position of 
the defendant, would do in 
response to a foreseeable 
and not insignificant risk to 
the plaintiff

Question 23

Breach of duty of care Statutory definition of the standard of care -

Accepted Answer

The common 
law definition 
of negligence 
has now been 
formalised in 
legislation

Question 24

Breach of duty of care – inherent risk

Accepted Answer

- Where a risk cannot be avoided by the exercise of reasonable care it is an inherent risk
-  The defendant is not liable in negligence where the plaintiff is injured as result of the materialisation of an inherent risk

Question 25

Damage caused by the breach - Causation

Accepted Answer

To recover damages, the plaintiff must prove, on the balance of 
probabilities, that the defendant’s negligence was the actual 
cause
 of the damage

Question 26

Damage caused by the breach - Causation - Courts look at two factors:

Accepted Answer

• Factual causation– the harm must be factually caused by the 
defendant’s negligence
 • Legal causation– the damages claimed must not be too 
remote

Question 27

Damage caused by the breach - Factual causation

Accepted Answer

- Court must determine as a question of fact whether the 
defendant’s negligence was a necessary condition of the 
plaintiff’s loss
- Sometimes called the ‘but for’ test (but for defendant’s 
behaviour, would the harm to the plaintiff have occurred?)

Question 28

Damage caused by the breach - Legal causation (remoteness of damage) - Scope of liability:

Accepted Answer

- court must determine whether it is appropriate that the defendant be responsible for the plaintiff’s loss – this is a policy issue, including whether or not (and why) responsibility for the harm should be imposed on the party in breach

Question 29

Damage caused by the breach - Legal causation (remoteness of damage) -  If damage is not too remote, and is therefore within the

Accepted Answer

scope of liability, legal 
causation is established

Question 30

How are damages for negligence 
calculated? - Purpose of damages

Accepted Answer

Damages in tort are awarded to 
place the plaintiff in the position they 
would have been in if the tort had 
not been committed

Question 31

Defences to an action for negligence

Accepted Answer

- Elements of negligence not proved
- Contributory negligence
- Plaintiff assumed the risk

Question 32

Defences to an action for negligence - Elements of negligence not proved - Defendant may claim that plaintiff has failed to prove one or all of:

Accepted Answer

• Defendant owed plaintiff a duty of care
 • Defendant breached that duty of care
 • Plaintiff suffered loss or harm as a result of that breach 
(including factual and legal causation)

Question 33

Defences to an action for negligence - Contributory negligence 1

Accepted Answer

Where the defendant can prove that the harm caused by the 
defendant’s negligence was also caused by the plaintiff’s failure to 
take reasonable care to protect itself against a foreseeable risk of 
harm

Question 34

Defences to an action for negligence - Contributory negligence 2

Accepted Answer

• The court can reduce damages proportionately to the extent just and 
equitable having regard to the plaintiff’s share of responsibility
 • The court can decide a reduction of up to 100% (e.g. Civil Liability 
Act 2003 (Qld) s24)

Question 35

Defences to an action for negligence - Plaintiff assumed the risk - The defendant will not be liable where the defendant can establish that:

Accepted Answer

• The plaintiff knew of the danger; and
 • The plaintiff appreciated the risk of injury created by the danger; and
 • The plaintiff voluntarily agreed to accept the risk

Question 36

Defences to an action for negligence - Plaintiff assumed the risk - Where a risk is obvious, the plaintiff is presumed to be

Accepted Answer

aware of and to 
have accepted the risk

Question 37

Pure economic loss 1

Accepted Answer

• Duty of care in Donoghue v Stevenson only allowed recovery for injury to persons or property caused by a negligent act or omission
 • Loss which arises as a consequence of physical harm also recoverable

Question 38

Pure economic loss 2

Accepted Answer

• Does a defendant owe a duty of care where the plaintiff suffers no physical damage or injury?
 • Loss which arises as consequence of negligence but not as result of physical harm or damage is known as pure economic loss

Question 39

Pure economic loss 3

Accepted Answer

But, the rules for claiming and proving pure economic loss are tougher, because 
likely to have a wider range of victims

Question 40

Liability for pure economic loss - Courts have been 
reluctant to extend 
scope of duty of care in 
tort to cover pure 
economic loss because

Accepted Answer

of the fear of 
indeterminate liability

Question 41

Liability for pure economic loss -  Development towards 
allowing recovery of 
pure economic loss in 
circumstances where 
courts believed 
relationship between

Accepted Answer

plaintiff and defendant 
justified an exception to 
the rule

Question 42

Liability for pure economic loss -  Current test to 
determine whether the 
relationship between 
plaintiff and defendant 
justifies an exception to 
the rule is the

Accepted Answer

salient 
features test

Question 43

When considering whether the defendant owes a duty of care to the plaintiff for pure economic loss, the courts will consider salient features to determine whether a sufficiently close relationship exists to give rise to a duty of care, including: 1

Accepted Answer

-Whether the loss suffered by the plaintiff was reasonably foreseeable
-Nature of the relationship between the plaintiff and the defendant
-Whether the plaintiff belonged to an indeterminate class (hard to identify all the people potentially affected)

Question 44

When considering whether the defendant owes a duty of care to the plaintiff for pure economic loss, the courts will consider salient features to determine whether a sufficiently close relationship exists to give rise to a duty of care, including: 2

Accepted Answer

- Plaintiff’s vulnerability
- Defendant’s knowledge of plaintiff’s vulnerability
- Whether defendant assumed responsibility for the risk being taken by the plaintiff and whether the plaintiff reasonably relied on the defendant

Question 45

Whether the loss suffered by the plaintiff was 
reasonably foreseeable

Accepted Answer

(This is the usual test for a duty of care for negligence, 
but is not sufficient on its own for establishing a duty 
of care to avoid pure economic loss)

Question 46

Whether defendant assumed responsibility for the risk 
being taken by the plaintiff and whether the plaintiff 
reasonably relied on the defendant

Accepted Answer

(This test is not essential for negligent acts, but 
important for negligent misstatement)

Question 47

Negligent misstatement/misrepresentation => Before 1963, the tort of negligence only applied to physical acts or omissions =>  In the 1964 English case of Hedley Byrne & Co Ltd v Heller & Partners Ltd, the tort of negligence was...

Accepted Answer

extended to include words as well as acts 
- The duty to take reasonable care was extended to a person suffering pure economic loss as result of the defendant’s negligent misstatement

Question 48

Liability in tort for negligent misstatement in Australia today - The test is: 
• Assumption of responsibility- whether the maker of the statement assumed responsibility for its accuracy; and

Accepted Answer

• Reasonable reliance– whether the plaintiff reasonably relied on it (did the plaintiff rely on it and was it reasonable for the plaintiff to have relied on it?)

Question 49

Negligent misstatement - Assumption of responsibility and reasonable reliance - Note the disclaimer in Hedley Byrne case – an appropriate disclaimer could negate any

Accepted Answer

assumption of responsibility and make itunreasonable for the plaintiff to rely on the statement

Question 50

Vicarious liability 

- Vicarious liability is the concept that employers are liable (vicariously liable) for torts committed by their employees in the course of their employment

Accepted Answer

- Negligence must occur in the course or scope of employment, not “on a frolic of the employee’s own”

Question 51

Vicarious liability - There must be an employer/employee relationship, not 
a principal/ independent contractor relationship

Accepted Answer

Courts use a multiple factor test, where they 
look at multiple factors in the relationship 
between employer and employee and make 
a decision on the balance

Question 52

Are building contractors vicariously liable for actions of their subcontractors? - Most construction contracts contain clauses stating that the

Accepted Answer

head 
contractor will be liable to the principal for any negligent work carried out 
by the head contractor’s subcontractors

Question 53

Are building contractors vicariously liable for actions of their subcontractors? - Under the law of tort, a head contractor will generally not be

Accepted Answer

vicariously 
liable to the principal for the subcontractor’s negligent work – because the 
subcontractor is an independent contractor, not an employee

Question 54

Limitation of Actions -  Does liability for the tort of negligence go on for ever after the work has finished? - NO

Accepted Answer

- In Australia, legislation imposes a limit on the time period between the date when a cause of action accrues and the date that action can be brought to court
- This concept is known as limitation of actions, and the time limit is the limitation period

Question 55

Limitation of Actions for tort of negligence -  The limitation period is the period between

Accepted Answer

the date when a cause of action 
accrues (arises) and the latest date that action can be brought to court

Question 56

Limitation of Actions for tort of negligence - In tort law, a cause of action for the tort of negligence arises when

Accepted Answer

the plaintiff 
suffers injury, damage or loss

Question 57

Limitation of Actions for tort of negligence -  In Queensland, the relevant legislation is the Limitation of Actions Act 1974 (Qld):

Accepted Answer

• For the tort of negligence, the limitation period is 6 years from the date the cause of action arose – which 
means 6 years from when the plaintiff suffered the damage or loss
 • There are some exceptions to this basic 6 year period

Question 58

Limitation of Actions for tort of negligence -  Other states and territories have varying

Accepted Answer

limitation of action periods

Question 59

Limitation of Actions for tort of negligence - Exceptions - Limitation 
of Actions 
Act 1974 
(Qld)

Accepted Answer

Where the cause of action is 
personal injury, then the limitation 
period is 3 years from the date the 
cause of action arose – which 
means 3 years from the date of the 
injury

Question 60

Which 6 year limitation period is longer? -  For a cause of action in contract, if the date the cause of action arises is the date of breach of contract, for a construction 
contract the latest the date of breach could be is usually

Accepted Answer

either the date of practical completion (the last date the builder is 
responsible for constructing the works) or the end of the defects liability period (if it is considered that the work could or 
should have been rectified during that period)

Question 61

Which 6 year limitation period is longer? - For a cause of action in tort, the date the cause of action arises is the date the plaintiff first suffers damage or loss, which the 
courts have said means the date when the

Accepted Answer

building owner first became aware, or ought to have become aware, that they had 
sustained a loss because of the alleged defect

Question 62

Which 6 year limitation period is longer? - If the date the building owner became aware they had sustained a loss because of the defect is a later date than the

Accepted Answer

date of 
completion of the building work, the limitation period for a cause of action in tort starts later (and therefore ends later) than the 
limitation period for a cause of action in contract

Question 63

Which 6 year limitation period is longer? - Which means that even where the building owner has a contract with the builder, the building owner

Accepted Answer

might lose their right to 
take action for breach of contract because the limitation period has expired, but still have a right to take action for the tort of 
negligence

Question 64

2024 – Contract signed => 2025 – Construction completed =>  2031 – Limitation period for action for breach of contract expires =>  2032 – Defects apparent

Accepted Answer

=> 2035 – Relevant 
in most other 
States and 
Territories but 
not QLD and 
WA => 2038 – 
Limitation period 
for action for tort 
of negligence 
expires

Question

Question

Question

EGB482 (Week 9)

Tort of negligence – Can you still be liable if there is no contract?

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