Busy. Please wait.
Log in with Clever
or

show password
Forgot Password?

Don't have an account?  Sign up 
Sign up using Clever
or

Username is available taken
show password

Your email address is only used to allow you to reset your password. See our Privacy Policy and Terms of Service.


Already a StudyStack user? Log In

Reset Password
Enter the associated with your account, and we'll email you a link to reset your password.

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

        Help!  

Question
Answer
What is negligence? 1   show
🗑
What is negligence? 2   show
🗑
What is negligence? 3   show
🗑
What is negligence? 4   show
🗑
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  
🗑
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  
🗑
show Did the defendant owe a duty to the plaintiff to take reasonable care to avoid the injury or harm that occurred?  
🗑
show Did the defendant fail to exercise the required standard of care?  
🗑
show 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   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’  
🗑
show These are what is known as an established duty of care  
🗑
show don’t need to go further to prove that a duty of care was owed by the defendant  
🗑
show - Duty of care owed by manufacturers to consumers - Duty of care may be owed by manufacturers to innocent bystanders  
🗑
show - Duty of care owed by property owners to visitors to their property - e.g. Australian Safeway Stores Pty Ltd v Zaluzna (1987)  
🗑
show 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)   show
🗑
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  
🗑
Breach of duty of care - Having established duty of care exists, plaintiff has to show duty of care was breached   show
🗑
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
🗑
How are damages for negligence calculated? - Purpose of damages   show
🗑
Defences to an action for negligence   show
🗑
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)  
🗑
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
🗑
Pure economic loss 1   show
🗑
Pure economic loss 2   show
🗑
show But, the rules for claiming and proving pure economic loss are tougher, because likely to have a wider range of victims  
🗑
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)  
🗑
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  
🗑
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)  
🗑
show (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...   show
🗑
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
🗑
Negligent misstatement - Assumption of responsibility and reasonable reliance - Note the disclaimer in Hedley Byrne case – an appropriate disclaimer could negate any   show
🗑
show - 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   show
🗑
Are building contractors vicariously liable for actions of their subcontractors? - Most construction contracts contain clauses stating that the   show
🗑
Are building contractors vicariously liable for actions of their subcontractors? - Under the law of tort, a head contractor will generally not be   show
🗑
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  
🗑
show limitation of action periods  
🗑
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  
🗑
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)  
🗑
show building owner first became aware, or ought to have become aware, that they had sustained a loss because of the alleged defect  
🗑
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  
🗑
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
🗑
2024 – Contract signed => 2025 – Construction completed => 2031 – Limitation period for action for breach of contract expires => 2032 – Defects apparent   show
🗑
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
🗑
show building problems – or both  
🗑
show 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   show
🗑
show 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   show
🗑
show take action for breach of contract, therefore has to take action for the tort of negligence  
🗑
show cause damage to persons or to other property is classed as pure economic loss  
🗑
show the building due to its defective nature  
🗑
show 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   show
🗑


   

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.

 
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
Created by: Asher - S