| Question | Answer |
| What is negligence? 1 | Donoghue v Stevenson case is the origin of the modern law of negligence |
| What is negligence? 2 | Negligence is conduct (or a failure to act) that breaches a duty to take care |
| What is negligence? 3 | 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 |
| What is negligence? 4 | Negligence is a tort |
| 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: | •An action for tort is brought by the person who is affected
•A crime is prosecuted in court by the state |
| Categories of tort include: | • Tort of negligence
• Trespass to land
• Nuisance
• Trespass to the person
• Defamation
• Deceit |
| Elements of negligence - To establish a cause of action for the tort of negligence, a plaintiff must prove: | - 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 |
| Defendant owed
plaintiff a legal duty
of care | Did the defendant owe
a duty to the plaintiff to
take reasonable care to
avoid the injury or harm
that occurred? |
| Defendant has
breached that duty
of care | Did the defendant fail to
exercise the required
standard of care? |
| Plaintiff has suffered
injury or harm
(damage) caused
by that breach | Was the plaintiff’s loss
or harm caused by the
defendant’s negligence
and was the loss or
harm reasonably
foreseeable? |
| Duty of care - reasonable foreseeability 1 | 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 |
| Duty of care - reasonable foreseeability 2 | The precise injury or event does not have to be foreseeable – just the type of injury or event |
| Duty of care - reasonable foreseeability 3 | To be reasonably foreseeable, the injury or event must not be ‘fanciful’ or ‘far-fetched’ |
| Duty of care – established duty - Common law has developed
examples of situations where a
duty of care has been found to
exist | These are what is known as an
established duty of care |
| Duty of care – established duty - If the plaintiff can show that their
situation is one where an
established duty of care applies,
then they | don’t need to go further
to prove that a duty of care was
owed by the defendant |
| Established duty of care examples -
Manufacturers | - Duty of care owed by manufacturers
to consumers
- Duty of care may be owed by
manufacturers to innocent
bystanders |
| Established duty of care examples –
Property owners | - Duty of care owed by property
owners to visitors to their property
- e.g. Australian Safeway Stores Pty
Ltd v Zaluzna (1987) |
| Established duty of care examples –
Service providers | Duty of care owed by repairers and
installers – treated the same as
manufacturers |
| Established duty of care examples –
Service providers - Duty of care owed by professionals
(engineers, architects, doctors) | Duty to take
reasonable care not
to cause
foreseeable injury in
providing the service |
| 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) | 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 |
| Breach of duty of care - Having established
duty of care exists,
plaintiff has to
show duty of care
was breached | Have to establish
defendant’s failure
to exercise the
required standard
of care |
| What is the
required
standard of care? | What a reasonable
person, in the position of
the defendant, would do in
response to a foreseeable
and not insignificant risk to
the plaintiff |
| Breach of duty of care Statutory definition of the standard of care - | The common
law definition
of negligence
has now been
formalised in
legislation |
| Breach of duty of care – inherent risk | - 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 |
| Damage caused by the breach - Causation | To recover damages, the plaintiff must prove, on the balance of
probabilities, that the defendant’s negligence was the actual
cause
of the damage |
| Damage caused by the breach - Causation - Courts look at two factors: | • Factual causation– the harm must be factually caused by the
defendant’s negligence
• Legal causation– the damages claimed must not be too
remote |
| Damage caused by the breach - Factual causation | - 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?) |
| Damage caused by the breach - Legal causation (remoteness of damage) - Scope of liability: | - 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 |
| Damage caused by the breach - Legal causation (remoteness of damage) - If damage is not too remote, and is therefore within the | scope of liability, legal
causation is established |
| How are damages for negligence
calculated? - Purpose of damages | Damages in tort are awarded to
place the plaintiff in the position they
would have been in if the tort had
not been committed |
| Defences to an action for negligence | - Elements of negligence not proved
- Contributory negligence
- Plaintiff assumed the risk |
| Defences to an action for negligence - Elements of negligence not proved - Defendant may claim that plaintiff has failed to prove one or all of: | • 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) |
| Defences to an action for negligence - Contributory negligence 1 | 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 |
| Defences to an action for negligence - Contributory negligence 2 | • 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) |
| Defences to an action for negligence - Plaintiff assumed the risk - The defendant will not be liable where the defendant can establish that: | • 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 |
| Defences to an action for negligence - Plaintiff assumed the risk - Where a risk is obvious, the plaintiff is presumed to be | aware of and to
have accepted the risk |
| Pure economic loss 1 | • 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 |
| Pure economic loss 2 | • 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 |
| Pure economic loss 3 | But, the rules for claiming and proving pure economic loss are tougher, because
likely to have a wider range of victims |
| Liability for pure economic loss - Courts have been
reluctant to extend
scope of duty of care in
tort to cover pure
economic loss because | of the fear of
indeterminate liability |
| Liability for pure economic loss - Development towards
allowing recovery of
pure economic loss in
circumstances where
courts believed
relationship between | plaintiff and defendant
justified an exception to
the rule |
| Liability for pure economic loss - Current test to
determine whether the
relationship between
plaintiff and defendant
justifies an exception to
the rule is the | salient
features test |
| 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 | -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) |
| 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 | - 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 |
| Whether the loss suffered by the plaintiff was
reasonably foreseeable | (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) |
| Whether defendant assumed responsibility for the risk
being taken by the plaintiff and whether the plaintiff
reasonably relied on the defendant | (This test is not essential for negligent acts, but
important for negligent misstatement) |
| 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... | 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 |
| 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 | • 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?) |
| Negligent misstatement - Assumption of responsibility and reasonable reliance - Note the disclaimer in Hedley Byrne case – an appropriate disclaimer could negate any | assumption of responsibility and make itunreasonable for the plaintiff to rely on the statement |
| 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 | - Negligence must occur in the course or scope of employment, not “on a frolic of the employee’s own” |
| Vicarious liability - There must be an employer/employee relationship, not
a principal/ independent contractor relationship | 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 |
| Are building contractors vicariously liable for actions of their subcontractors? - Most construction contracts contain clauses stating that the | head
contractor will be liable to the principal for any negligent work carried out
by the head contractor’s subcontractors |
| Are building contractors vicariously liable for actions of their subcontractors? - Under the law of tort, a head contractor will generally not be | vicariously
liable to the principal for the subcontractor’s negligent work – because the
subcontractor is an independent contractor, not an employee |
| Limitation of Actions - Does liability for the tort of negligence go on for ever after the work has finished? - NO | - 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 |
| Limitation of Actions for tort of negligence - The limitation period is the period between | the date when a cause of action
accrues (arises) and the latest date that action can be brought to court |
| Limitation of Actions for tort of negligence - In tort law, a cause of action for the tort of negligence arises when | the plaintiff
suffers injury, damage or loss |
| Limitation of Actions for tort of negligence - In Queensland, the relevant legislation is the Limitation of Actions Act 1974 (Qld): | • 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 |
| Limitation of Actions for tort of negligence - Other states and territories have varying | limitation of action periods |
| Limitation of Actions for tort of negligence - Exceptions - Limitation
of Actions
Act 1974
(Qld) | 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 |
| 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 | 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) |
| 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 | building owner first became aware, or ought to have become aware, that they had
sustained a loss because of the alleged defect |
| 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 | 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 |
| Which 6 year limitation period is longer? - Which means that even where the building owner has a contract with the builder, the building owner | 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 |
| 2024 – Contract signed => 2025 – Construction completed => 2031 – Limitation period for action for breach of contract expires => 2032 – Defects apparent | => 2035 – Relevant
in most other
States and
Territories but
not QLD and
WA => 2038 –
Limitation period
for action for tort
of negligence
expires |
| Long-stop limitation period for defective building works - Legislation in all Australian states and territories except Queensland and Western Australia imposes a long-stop (maximum) limitation period for defective building works of... | 10 years from the completion of the building work (or, for Victoria, from the date of the occupancy permit). This means that in those states and territories which have this legislation, liability for defective building works cannot extend beyond 10 years |
| What is the problem for subsequent building owners? - Building defects are generally the result of design problems or | building problems – or both |
| What is the problem for subsequent building owners? - Where a building defect is the result of the designer’s or the
builder’s negligence, the building developer who engaged the
builder or designer should have a | cause of action in contract, and
can claim damages for breach of contract |
| What is the problem for subsequent building owners? - The problem comes when the defects only become apparent after
some years, when the | building may have been sold |
| What is the problem for subsequent building owners? - For example, weak footings may only become | apparent for first time
when structural cracks start occurring in walls many years after
construction |
| What is the problem for subsequent building owners? Continued - Where defects in a building only become apparent after some time,
the building owner at the time the defects become apparent may not
be | the same as the owner who engaged, and had a contractual
relationship with, the original builders and designers |
| What is the problem for subsequent building owners? Continued - A subsequent owner who has no contract with the builder cannot | take action for breach of contract, therefore has to take action for
the tort of negligence |
| What is the problem for subsequent building owners? Continued - The loss resulting from a building defect which is discovered but
does not | cause damage to persons or to other property is classed
as pure economic loss |
| What is the problem for subsequent building owners? Continued - The economic loss is the reduction in value of | the building due to its
defective nature |
| What do the courts say about subsequent building owners? - Courts have allowed the subsequent owner of a house to | recover damages in the tort of negligence for building defects caused by negligent construction Bryan v Maloney (1995) |
| What do the courts say about subsequent building owners? - Courts have tended not to allow the | subsequent owners of commercial buildings to recover damages in the tort of negligence for building defects caused by negligent construction Brookfield Multiplex v Owners Corporation Strata Plan (2014) |
