Fichas
Negligence
Fichas del conjunto (100)
- 1Elements of Negligence- Duty of Care
- Breach of Duty of Care
- Damage Suffered - 2Novel DutiesDo not fall into any of the established duties, only loss suffered is pure psychiatric or economic loss
- 3Established dutiesManufacturer and consumer
Occupier and persons entering premises
Road users and other road users
Medical professionals and patients
Legal professionals
School authorities
Employers and employees - 4Manufacturer and consumer caseDonoghue v Stevenson
- 5Occupier and persons entering premises caseAustralian Safety Stores v Zaluzna
- 6Duty of Care Case: Road Users to Other Road UsersImbree v McNeilly
- 7Duty of Care Case: Legal ProfessionalsHeydon v NRMA Ltd
- 8Duty of Care Case: School Authorities/TeachersPrecautions for safety as reasonable parent avoid foreseable harm
Commonwealth v Introvigne: Beyond school hours - 9Duty of Care: Medical ProfessionalsReasonable care and skill: Rogers v Whitaker
- 10Duty of Care: EmployersSmith v Charles Baker and Sons: reasonable care, foreseeable injury, safe system of work, safe plant
- 11Non-delegable dutiesKondis v State Transport Authority: person on whom the duty is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibiliy for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised'
- 12Scope of a non-delegable dutiesdefendant has a duty to ensure that reasonable care is taken by others not to expose the plaintiff to foreseeable risks
- 13Non-delegable duties: school authoritiesNSW v Lepore: school has special responsibility due to vulnerability of students; reasonable care to prevent foreseeable harm
- 14Non-delegable duties: hospitalsKondis v State Transport Authority: 'hospital undertakes the care, supervision and control of the patients who are in special need of care'.
Ellis v Wallsend Disctrict:
Not extended to use of the hospital for facilities only - 15Non-delegable duties: occupiersExtends to persons who are affected by activites carried out on the premises:
Burnie Port Authority v General Jones Pty Ltd - 16Non-delegable duties: EmployerKondis v State Transport Authority:
An employer has 'exclusive responsiblty for the safety of appliances, the premises and the system of work to which he subjects his employee and the employee has no choice - 17Vicarious LiabiliyNSW v Lepore:
vicarious liability or a non-delegable duty of care are situations where legal responsibility is fixed upon an innocent party by reason of some antecedent relationship with the victim and some capacity to control the conduct of the wrongdoer' - 18Novel DutiesRelationship does not fall into any of established duties.
Plaintiff must prove that in the particular circumstances the defendant owed them a duty of care.
Pure psychiatric injury & pure economic loss. - 19Vicarious LiabilityA defendant is liable for the tort of another.
Not a cause of action; doctrine that holds a third party responsible. - 20Vicarious Liability: EmployerHollis v Vabu Pty Ltd:
An employer will be vicariously liable for the wrongful acts an employee carried out during the course of employment. - 21Establishing vicarious liabilityThe tortfeasor is an employee.
A tortious act (trespass, negligence, nuisance).
A tortfeasor acting in the course of his or her employment at the time the tort was committed. - 22Employer and Employee RelationshipsEmployers are not vicariously liable for independent contractors.
Totality of the relationship that must be considered:
Stevens v Brodribby Sawmilling Co Pty Ltd
Hollis v Vabu Pty Ltd - 23Factors for the Court to consider in Vicarious LiabilityControl
Mode of remuneration Provision and maintenance of equipment
Obligation to work exclusively for the employer
Hours of work
Provision of holidays
Deduction of income tax
Right to delegate work and subcontract the work - 24Vicarious Liability: the loaning out of an employeeDeutz Australia Pty Ltd v Skilled Engineering Ltd: Original employee bear onus, unless the transfer of services for a particular purpose.
- 25Wrongful ModeAn Act is in scope of employment but carried out the wrong way.
Bugge v Brown:
still in course of employment. - 26FrolicJoel v Morison:
Employee does something that is in furtherance of their own interest. - 27Storey v AshtonInstructed to bring back empty wine case immediately after delivering the wine. Deviate from his route to collect a cask for another's private purposes.
Held not in the course of employment - 28Breach of DutyAn act or omission of the defendant
A failure to act as a reasonable person would in the circumstances - 29Onus of ProofPlaintiff on the balance of probabilities
- 30Standard of CareQuestion of law.
Glasgow Corporation: objective test, the reasonable person.
Swain v Waverley Municipal Council: measure of reasonableness not elimination of risk. - 31Change in Standard of CareCivil Liability Act (Qld) ss 26 and 27:
An emergency - Assistance to persons in distress by person performing duties for an entity as prescribed by the Civil Liability Regulation - 32Change in standard of careMcHale v Watson, Tucker v Tucker
Children: lower according to child's age and experience.
Carrier v Bonham:
Mental Disability
Roberts v Ramsbottom:
Physical - 33Standard of Care: Characteristics of the PlaintiffParis v Stepney Borough Council
Raises the standard if plaintiff has known disability
Bus v Sydney City Council
May lower the standard but must anticipate carelessness - 34Breach of the Standard of CareCivil Liability Act (Qld) s 9(1)
A person does not breach a duty to take precautions against a risk of harm unless -
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions. - 35Risk ForseeabilityTame v New South Wales:
Defendant must have known or ought to have known of the risk of harm.
Wyong Shire Council v Shirt
Not far-fetched or fanciful
Cannot be foreseeable just with the benefit of hindsight. - 36Reasonable response to riskCivil Liability Act 2003 s 9(2):
the probability that the harm would occur if care was not taken;
the likely seriousness of the harm;
the burden of taking the precautions to avoid the harm; and
the social utility of the risk-creating activity. - 37Likely seriousness: section 9(2)(b)Assessed as at time of injury.
The greater the harm that could befall a plaintiff if the risk of injury eventuates, the greater the precautions that are required of the defendant.
Roads & Traffic Authority - 38Burden of taking precautionSection 9(2)(c)
Court has regard to the expense, difficulty and convenience of available precautions - 39Court will balance cost, difficulty and inconvenience of taking precautions against risk of foreseeable injuryRomeo v Conservation Commission (NT)
- 40Practicability of precautions will depend upon all of the circumstances of the caseRoads & Traffic Authority NSW v Dederer
- 41Customary standardsMercer v Commissioner for Road Transport and Tramways (NSW)
- 42Breach of statutory standard is not conclusive as to breach but evidence towards proving breachTucker v McCann
- 43Sudden EmergencyDerrick v Cheung
Infant runs in front of car going at reasonable speed. High Court ruled was not negligent. - 44Balancing the factorsWoods v Multi-Sport Holdings:
Whether a reasonable person in the position of the defendant would have taken precautions. - 45If the duty if non-delegableNSW v Lepore
Defendant must be at fault, in breach of the duty - 46NegligenceTame v New South Wales
‘conduct which involves a failure to conform to a legal obligation and failure to protect the interests of someone with whose interests a defendant ought to be concerned.’ - 47The Damage ElementThe loss/damage suffered by the plaintiff must be of a kind recognised at law.
Loss/damage must have been caused by the defendant's breach of duty (factual causation).
Loss/damage must not too remote a consequence of the defendant's breach (Scope of Liability). - 48Examples of recognised damagePersonal (physical) injury
Property damage
Economic loss: pure/consequential
Psychiatric injury (nervous shock): medically recognisable psychiatric illness - 49Loss of Chance/OpportunityHas been recognised in some pure economic loss claims.
Comapre with physical injury/medical negligence.
E.g. lost chance of a better medical outcome. Chappel v Hart (argument rejected by HC) - 50Chappel v HartPlaintiff need non-urgent operation to her throat. Plaintiff lost voice when infection occurred. Plaintiff inquired about risks and defendant failed to advise plaintiff of slight risk of infection as a result of operation.
Loss suffered was a the physical injury which occurred to her throat, which was the risk her surgeon should have warned her about. - 51Tabet v GettDoctor was found negligent in failing to diagnose a brain tumour in the 6 year old plaintiff. Failed to order CT scan and did not take appropriate steps. But for this failure or delay, the subsequent brain damage would not have occurred.
- 52Damage not recognisedTame v NSW
Fright, anguish or grief. - 53Factual CausationPlaintiff must prove that their damage was caused by the defendant's wrongful act or omission.
Did the defendant's negligent conduct play a part in bringing about the plaintiff's harm.
Question of fact. - 54Standard of ProofOn the balance of probabilities.
Hoston v EBA Health Authority:
>50% likelihood that defendant's breach caused plaintiffs damage.
If causation established on 60%, the plaintiff is compensated 100%.
If established on only a 40% basis, then zero recovery. - 55Hotson v EBA Health AuthorityHouse of Lords:
Held that a child's injury was caused by fall not hospital, even though failure to correct or diagnose occurred in hospital, because 75% of disability was likely to occur regardless of treatment. - 56Tests for Factual CausationCivil Liability Act 2003 s 11
- 57Necessary Condition of the Occurrence of the Harm: s 11(1)(a)Wallace v Kam: the 'but for' rest.
Would the plaintiff have suffered the harm 'but for' the defendant's breach?
A necessary condition is 'a condition that must be present for the occurence of the harm': Strong v Woolworths - 58Zanner v ZannerMrs Zanner suffered injuries after being run over by 11 year old child.
A person whose negligent conduct is necessary condition of the harm may be held liable for that harm, even though some other person's conduct was also a necessary condition of that harm, and in that sense make a material contribution to it. - 59McGee v National Coal BoardPlaintiff contracted dermatitis.
Employer could not have avoided plaintiff's exposure to dust, but could have provided showers to wash off dust.
Employer liable as materially contributed to, or increased the risk of, dermatitis - even though plaintiff could not show that he would not have contracted the disease if washed dust off immediately. - 60Fairchild v Glenhaven Funeral Services LtdPlaintiff exposed to asbestos during successive periods of employment with all defendants.
House of Lords held that each Defendant's wrongdoing had materially increased the risk of plaintiff contracting the disease. - 61Causation and PolicyTabet v Gett
The resolution of the question of causation has been said to involve the commonsense idea of one matter being the cause of another - 62Consideration of normative issuesWhether the damage was reasonably foreseeable.
Whether the breach was legally significant cause.
Whether (if there is one than one cause of a plaintiff's harm) any of the other causes of harm amount to intervening acts which will limit the defendant's liability or release them from liability in relation to all or part of the plaintiff's damage. - 63Reasonably ForeseeableA defendant is not liable for all the consequences of their wrongful acts or omissions, only those which are reasonably foreseeable.
Wagon Mound case:
oil would not normally burn on water. - 64Foreseeability in DamageIt's the foreseeability of the kind, category class or character of damage.
Mt Isa Mines v Pusey
Plaintiff developed schizophrenia after a workmate he aided died. Mental disorder was reasonably foreseeable. - 65Eggshell Skull RuleA tortfeasor must take their victim as they find them.
- 66Legally Significant CauseWhether: one or more causes of plaintiff's loss, and even if factual causation can be established under s11(1)(a), or exceptionally s 11(2).
Court need to consider the defendant's breach is a legally significant case. - 67State Rail Authority of NSW v WiegoldPlaintiff grew hemp after being hit by a car.
Majority found that it would be quite unreal to find that the defendant caused the plaintiff's criminal conduct. - 68Ruddock v TaylorPlaintiff claimed false imprisonment due to the wrongful cancellation of his visa.
Two questions in the determination of causation in tort:
factual aspect of causation and scope of liability - 69Chappel v HartPlaintiff needed non-urget operation of throat.
Defendant failed to advise on risk of infection.
But for failure to warn would not have had operation. - 70Wallace v KamOperation carried two risks, doctor failed to inform patient.
Scope of liability prevented liability, duty was to warn patient of risk that they are not willing to accept. - 71Intervening ActsIf a new independent act either:
intervenes after the defendant's wrongful conduct but before the damage sustained by the plaintiff; or builds on the plaintiff's injury caused by the defendant.
May be argued that the act breaks the chain of causation and releases the defendant from liability from that point in time.
For the chain to be broken, two characteristics must be present; voluntary act, casually independent act. - 72Voluntary ActHaber v Walker:
Plaintiff's husband committed suicide as the result of depression caused by injuries sustained in a motor vehicle accident caused by the defendant.
The suicide was not an intervening act, due to his mental state. - 73Causally Independent ActTo be an intervening act, the subsequent event must not only be voluntary, but it must be a new and independent act.
Subsquent conduct must be unrelated to the situation created by the earlier negligence or; the intervening action must not, in the ordinary course of things, be the kind of thing likely to happen as the result of the defendant's negligence. - 74Medlin v SGICDefendant's negligent driving caused professor's serious injuries.
Plaintiff took early retirement, plaintiff sought an award of damages to compensate him for his loss or earnings as a result of his early retirement.
Was awarded damages, because the retirement was the very thing you could expect to happen as a result of the plaintiff's injury. - 75Mahoney v KruschichEmployer's negligence injured employee. Employee further injured due to negligent treatment of initial injury.
Employer argued chain of causation broken.
Argument failed, medical treatment the kind of reaction one would expect to injury. - 76Joint Concurrent Tortfeasors vTwo or more persons - together responsible for the same tort and the same damage.
- 77Several Concurrent TortfeasorsTwo or more persons - commit independent torts which combine to produce the same damage.
Chapman v Hearse. - 78Chapman v HearseDoctor died after being hit by car while treating a negligent driver.
Both car drivers were concurrent tortfeasors in relation to the damage suffered by the Dr. - 79Contributory NegligenceJosslyn v Berryman
Plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might have been foreseen and avoided and suffers an injury within the class of risk to which the plaintiff is exposed. - 80Elements of Contributory Negligence1. Plaintiff negligent (at fault)
2. The negligence contributed to or caused the plaintiff's foreseeable loss. - 81Plaintiff at Fault/NegligentPlaintiff exhibited a want of care for their own interests.
Question of Fact. - 82Plaintiff Contributed to the Foreseeable InjuryCausation: Question of Fact.
Injuries suffered by the plaintiff are foreseeable consequence and would have been avoided or reduced had the plaintiff taken reasonable care. Fitzgerald v Penn, Gent-Diver v Neville - 83Consquences of Contributory NegligenceApportionment of damages:
Law Reform Act s10 - reduced. - 84'just and equitable' (contributory negligence)Compare defendant and plaintiff's conduct to assess culpability.
- 85Pennington v NorrisPlaintiff failed to keep look out when crossing road, defendant driving at excessive speed in wet and mist when people leaving hotels.
HC found negligence of defendant high degree, more culpable than plaintiff. - 86100% Contributory NegligentCLA s 24: may find plaintiff 100% if just and equitable. Claim is then defeated
- 87Intoxication & Contributory Negligence'the person is under the influence of alcohol or a drug to the extent that the person’s capacity to exercise proper care and skill is impaired’
CLA Sch 2 - 88Plaintiff intoxicated: CLA s 47CN presumed if plaintiff intoxicated and defendant alleges CN
s 47(1) and (2)
Presumption may be rebutted
Intoxication did not contribute to breach or was not self-induced: s 47(3)
Reduction in damages of a minimum of 25%: s 47(4)
if a driver with BAC of 0.15 or more at least 50% reduction: s47(5) - 89Defendant intoxicated: CLA s 48Plaintiff at least 16 years, relied on care and skills of defendant and was aware or ought to have been aware of intoxication and defendant alleges CN
CLA s 48(1) and (2)
Presumption may be rebutted
Intoxication did not contribute to breach or plaintiff could not reasonably be expected to avoid relying upon defendant’s care and skill: s 48(3)
Reduction in damages of minimum 25%: s48(4)
Cannot raise volenti if this section applies: CLA s 48(5) - 90Volenti Non Fit InjuriaComplete Defence.
Plaintiff consented to the risk of injury. - 91Elements of Volenti Non Fit InjuriaDefendant must prove:
Plaintiff had full knowledge of the risk.
Plaintiff freely and voluntarily agreed to accept the risk (physical and legal). - 92Volenti Non Fit Injuria: Knowledge of the Risk.Subjective test.
If the risk is an obvious risk, the plaintiff is taken to have been aware of the risk: CLA s 14(1). Plaintiff must prove on the balance of probabilities they were not aware of the risk. - 93Volenti Non Fit Injuria: Acceptance of RiskMust be voluntary and there must be acceptance of: physical risk and legal risk.
- 94Volenti Non Fit Injuria: Characteristics of PlaintiffChild - Doubleday v Kelly
Leyden v Caboolture Shire Council: although appellant was not an adult, he was sufficiently mature to justify the success of the defence - 95Volenti Non Fit Injuria: Intoxicated defendantCLA s 48(5)
Volenti cannot be raised if plaintiff had relied upon intoxicated defendant. - 96Dangerous Recreational Activity: CLA s 19Participation in sport does not equal acceptance of any risk, but may be acceptance of inherent/obvious risks.
Leydon v Caboolture Shire Council.
No liability if loss results from obvious risk in dangerous recreational activity: CLA s 18,
Fallas v Mouras. - 97Volenti Non Fit Injuria: Illegality of PlaintiffCLA s 45(1)
No liability if the breach occurred when the plaintiff was engaged in an indictable offence and that conduct materially contributed to the risk of harm - 98Volenti Non Fit Injuria: Joint Illegal EnterperiseJackson v Harrison:
Complete defence.
Defendant proves:
Plaintiff and defendant jointly engaged in illegal activity at time of breach (Miller v Miller).
Connection between the breach and the illegal activity. Gala v Preston. - 99Defences under the CLASection 22
Section 26, 27
Section 16 - 100Standard of CareObjective Test: Glasgow Corp v Muir
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- Fichas sobre Negligence , creado por lawstudent el 13/06/2015.
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