Tort of negligence – Can you still be liable if there is no contract?
Help!
|
|
||||
|---|---|---|---|---|---|
| show | Donoghue v Stevenson case is the origin of the modern law of negligence
🗑
|
||||
| What is negligence? 2 | show 🗑
|
||||
| What is negligence? 3 | show 🗑
|
||||
| show | 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: | show 🗑
|
||||
| show | • 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: | show 🗑
|
||||
| Defendant owed plaintiff a legal duty of care | show 🗑
|
||||
| show | Did the defendant fail to
exercise the required
standard of care?
🗑
|
||||
| Plaintiff has suffered injury or harm (damage) caused by that breach | show 🗑
|
||||
| Duty of care - reasonable foreseeability 1 | show 🗑
|
||||
| show | The precise injury or event does not have to be foreseeable – just the type of injury or event
🗑
|
||||
| show | 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 | show 🗑
|
||||
| show | don’t need to go further
to prove that a duty of care was
owed by the defendant
🗑
|
||||
| Established duty of care examples - Manufacturers | show 🗑
|
||||
| Established duty of care examples – Property owners | show 🗑
|
||||
| Established duty of care examples – Service providers | show 🗑
|
||||
| show | Duty to take
reasonable care not
to cause
foreseeable injury in
providing the service
🗑
|
||||
| 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
🗑
|
||||
| show | Have to establish
defendant’s failure
to exercise the
required standard
of care
🗑
|
||||
| What is the required standard of care? | show 🗑
|
||||
| show | The common
law definition
of negligence
has now been
formalised in
legislation
🗑
|
||||
| Breach of duty of care – inherent risk | show 🗑
|
||||
| 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
🗑
|
||||
| Damage caused by the breach - Causation - Courts look at two factors: | show 🗑
|
||||
| Damage caused by the breach - Factual causation | show 🗑
|
||||
| Damage caused by the breach - Legal causation (remoteness of damage) - Scope of liability: | show 🗑
|
||||
| Damage caused by the breach - Legal causation (remoteness of damage) - If damage is not too remote, and is therefore within the | show 🗑
|
||||
| show | 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 | show 🗑
|
||||
| Defences to an action for negligence - Elements of negligence not proved - Defendant may claim that plaintiff has failed to prove one or all of: | show 🗑
|
||||
| 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
🗑
|
||||
| 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)
🗑
|
||||
| Defences to an action for negligence - Plaintiff assumed the risk - The defendant will not be liable where the defendant can establish that: | show 🗑
|
||||
| Defences to an action for negligence - Plaintiff assumed the risk - Where a risk is obvious, the plaintiff is presumed to be | show 🗑
|
||||
| show | • 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
🗑
|
||||
| show | • 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 | show 🗑
|
||||
| show | 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 | show 🗑
|
||||
| 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 🗑
|
||||
| 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)
🗑
|
||||
| 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 | show 🗑
|
||||
| Whether the loss suffered by the plaintiff was reasonably foreseeable | show 🗑
|
||||
| Whether defendant assumed responsibility for the risk being taken by the plaintiff and whether the plaintiff reasonably relied on the defendant | show 🗑
|
||||
| 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 🗑
|
||||
| show | • 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?)
🗑
|
||||
| show | 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 | show 🗑
|
||||
| Vicarious liability - There must be an employer/employee relationship, not a principal/ independent contractor relationship | show 🗑
|
||||
| show | head
contractor will be liable to the principal for any negligent work carried out
by the head contractor’s subcontractors
🗑
|
||||
| show | vicariously
liable to the principal for the subcontractor’s negligent work – because the
subcontractor is an independent contractor, not an employee
🗑
|
||||
| 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
🗑
|
||||
| Limitation of Actions for tort of negligence - The limitation period is the period between | show 🗑
|
||||
| show | the plaintiff
suffers injury, damage or loss
🗑
|
||||
| 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
🗑
|
||||
| Limitation of Actions for tort of negligence - Other states and territories have varying | show 🗑
|
||||
| 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
🗑
|
||||
| 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 | show 🗑
|
||||
| show | 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 | show 🗑
|
||||
| show | 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 | show 🗑
|
||||
| show | 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 | show 🗑
|
||||
| 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 | show 🗑
|
||||
| show | building may have been sold
🗑
|
||||
| What is the problem for subsequent building owners? - For example, weak footings may only become | show 🗑
|
||||
| show | the same as the owner who engaged, and had a contractual
relationship with, the original builders and designers
🗑
|
||||
| show | 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 | show 🗑
|
||||
| What is the problem for subsequent building owners? Continued - The economic loss is the reduction in value of | show 🗑
|
||||
| show | recover damages in the tort of negligence for building defects caused by negligent construction Bryan v Maloney (1995)
🗑
|
||||
| show | 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)
🗑
|
Review the information in the table. When you are ready to quiz yourself you can hide individual columns or the entire table. Then you can click on the empty cells to reveal the answer. Try to recall what will be displayed before clicking the empty cell.
To hide a column, click on the column name.
To hide the entire table, click on the "Hide All" button.
You may also shuffle the rows of the table by clicking on the "Shuffle" button.
Or sort by any of the columns using the down arrow next to any column heading.
If you know all the data on any row, you can temporarily remove it by tapping the trash can to the right of the row.
To hide a column, click on the column name.
To hide the entire table, click on the "Hide All" button.
You may also shuffle the rows of the table by clicking on the "Shuffle" button.
Or sort by any of the columns using the down arrow next to any column heading.
If you know all the data on any row, you can temporarily remove it by tapping the trash can to the right of the row.
Embed Code - If you would like this activity on your web page, copy the script below and paste it into your web page.
Normal Size Small Size show me how
Normal Size Small Size show me how
Created by:
Asher - S