Tort of negligence – Can you still be liable if there is no contract?
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What is negligence? 1 | show 🗑
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What is negligence? 2 | show 🗑
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What is negligence? 3 | show 🗑
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What is negligence? 4 | show 🗑
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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: | show 🗑
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show | • Tort of negligence
• Trespass to land
• Nuisance
• Trespass to the person
• Defamation
• Deceit
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show | - 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
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show | Did the defendant owe
a duty to the plaintiff to
take reasonable care to
avoid the injury or harm
that occurred?
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show | Did the defendant fail to
exercise the required
standard of care?
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show | Was the plaintiff’s loss
or harm caused by the
defendant’s negligence
and was the loss or
harm reasonably
foreseeable?
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Duty of care - reasonable foreseeability 1 | show 🗑
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show | The precise injury or event does not have to be foreseeable – just the type of injury or event
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show | To be reasonably foreseeable, the injury or event must not be ‘fanciful’ or ‘far-fetched’
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show | These are what is known as an
established duty of care
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show | don’t need to go further
to prove that a duty of care was
owed by the defendant
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show | - Duty of care owed by manufacturers
to consumers
- Duty of care may be owed by
manufacturers to innocent
bystanders
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show | - Duty of care owed by property
owners to visitors to their property
- e.g. Australian Safeway Stores Pty
Ltd v Zaluzna (1987)
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show | Duty of care owed by repairers and
installers – treated the same as
manufacturers
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Established duty of care examples – Service providers - Duty of care owed by professionals (engineers, architects, doctors) | show 🗑
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show | 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
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Breach of duty of care - Having established duty of care exists, plaintiff has to show duty of care was breached | show 🗑
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What is the required standard of care? | show 🗑
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show | The common
law definition
of negligence
has now been
formalised in
legislation
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Breach of duty of care – inherent risk | show 🗑
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show | To recover damages, the plaintiff must prove, on the balance of
probabilities, that the defendant’s negligence was the actual
cause
of the damage
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Damage caused by the breach - Causation - Courts look at two factors: | show 🗑
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Damage caused by the breach - Factual causation | show 🗑
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Damage caused by the breach - Legal causation (remoteness of damage) - Scope of liability: | show 🗑
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Damage caused by the breach - Legal causation (remoteness of damage) - If damage is not too remote, and is therefore within the | show 🗑
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How are damages for negligence calculated? - Purpose of damages | show 🗑
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Defences to an action for negligence | show 🗑
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show | • 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)
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show | 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
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show | • 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)
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Defences to an action for negligence - Plaintiff assumed the risk - The defendant will not be liable where the defendant can establish that: | show 🗑
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Defences to an action for negligence - Plaintiff assumed the risk - Where a risk is obvious, the plaintiff is presumed to be | show 🗑
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Pure economic loss 1 | show 🗑
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Pure economic loss 2 | show 🗑
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show | But, the rules for claiming and proving pure economic loss are tougher, because
likely to have a wider range of victims
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show | of the fear of
indeterminate liability
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Liability for pure economic loss - Development towards allowing recovery of pure economic loss in circumstances where courts believed relationship between | show 🗑
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Liability for pure economic loss - Current test to determine whether the relationship between plaintiff and defendant justifies an exception to the rule is the | show 🗑
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show | -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)
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show | - 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
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show | (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)
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show | (This test is not essential for negligent acts, but
important for negligent misstatement)
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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... | show 🗑
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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 | show 🗑
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Negligent misstatement - Assumption of responsibility and reasonable reliance - Note the disclaimer in Hedley Byrne case – an appropriate disclaimer could negate any | show 🗑
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show | - Negligence must occur in the course or scope of employment, not “on a frolic of the employee’s own”
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Vicarious liability - There must be an employer/employee relationship, not a principal/ independent contractor relationship | show 🗑
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Are building contractors vicariously liable for actions of their subcontractors? - Most construction contracts contain clauses stating that the | show 🗑
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Are building contractors vicariously liable for actions of their subcontractors? - Under the law of tort, a head contractor will generally not be | show 🗑
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show | - 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
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Limitation of Actions for tort of negligence - The limitation period is the period between | show 🗑
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show | the plaintiff
suffers injury, damage or loss
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show | • 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
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show | limitation of action periods
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show | 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
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show | 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)
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show | building owner first became aware, or ought to have become aware, that they had
sustained a loss because of the alleged defect
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show | 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
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Which 6 year limitation period is longer? - Which means that even where the building owner has a contract with the builder, the building owner | show 🗑
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2024 – Contract signed => 2025 – Construction completed => 2031 – Limitation period for action for breach of contract expires => 2032 – Defects apparent | show 🗑
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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... | show 🗑
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show | building problems – or both
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show | cause of action in contract, and
can claim damages for breach of contract
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What is the problem for subsequent building owners? - The problem comes when the defects only become apparent after some years, when the | show 🗑
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show | apparent for first time
when structural cracks start occurring in walls many years after
construction
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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 | show 🗑
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show | take action for breach of contract, therefore has to take action for
the tort of negligence
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show | cause damage to persons or to other property is classed
as pure economic loss
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show | the building due to its
defective nature
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show | recover damages in the tort of negligence for building defects caused by negligent construction Bryan v Maloney (1995)
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What do the courts say about subsequent building owners? - Courts have tended not to allow the | show 🗑
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