Modern Tort of Negligence - Fundamentals of Law - Lecture Slides, Slides of Law

Download Modern Tort of Negligence - Fundamentals of Law - Lecture Slides and more Slides Law in PDF only on Docsity! The Modern Tort of Negligence A duty is imposed on a person by law to act with care towards others. If this duty exists and there is a failure to act carefully and another suffers loss, then the tort of negligence is committed. Docsity.com The modern tort of negligence The modern version of negligence was established in 1932 in the decision in Donoghue v Stevenson [1932] AC 562 Negligence has become the most important area of tort law Docsity.com Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29 Facts:  Ms Cole attended a champagne breakfast at the South Tweed Heads Rugby League Football Club  She spent the day drinking at the Club  The Club stopped serving Ms Cole after 12.30 pm, but her friends provided her with drinks for the rest of the afternoon  At 5.30 pm the Club’s manager asked Ms Cole to leave the premises after she was seen behaving indecently with 2 men Docsity.com Cole v South Tweed Heads Rugby League Football Club Ltd  The manager offered Ms Cole a taxi home, but Ms Cole rejected the offer in blunt and abusive terms  She then left the Club with the 2 men, who assured the manager that they would take care of her  At 6.20 pm Ms Cole was struck by a car near the Club and was seriously injured  She was found to have a blood alcohol concentration of 0.238% Who was responsible for Ms Cole’s injuries? Why? Docsity.com Negligence and harm Careless acts do not always amount to negligence In negligence, a person is only liable for harm that is the foreseeable consequence of their actions, that is, failure to exercise reasonable care and skill Docsity.com Duty of care The defendant owes the plaintiff a duty of care if it is reasonably foreseeable that any carelessness on the part of the defendant could harm the plaintiff. This is a question of fact. CASE: Grant v Australian Knitting Mills (1933) CASE: Levi v Colgate-Palmolive Pty Ltd (1941)  A manufacturer does not owe a duty of care to every consumer (e.g. one with abnormal sensitivities)  However, there may be special circumstances that give rise to a duty to take special precautions to protect abnormal persons known to be likely to be affected Docsity.com Situations in which a duty of care applies • Negligent misstatements – in relation to people being advised • Road users – to other road users • School authorities – to students • Occupier of premises – to persons entering the premises • Bailee of goods – to bailor Docsity.com Situations in which a duty of care applies • Supplier of goods or services – to persons being supplied • Local councils – e.g. to persons requiring zoning information • Solicitor holding will – to executor named in will • Dog owners – to people who may be bitten Docsity.com Duty of care  At one time, the defendant also owed the plaintiff a duty of care if there was proximity between the defendant and the plaintiff  Proximity • means nearness or closeness • is a limitation on the test of reasonable foreseeability • can be: – physical, in the sense of space and time – circumstantial, in the sense of a relationship such as employer-employee or professional adviser-client – causal, in the sense of the closeness or directness between the defendant’s actions and the damage Docsity.com Duty of care  Proximity is no longer a common law test for duty of care as today it is determined by the application of the ‘foreseeability’ test and whether there was a vulnerable relationship between D and P  The test of proximity was rejected in the case of Sullivan v Moody (2001) Docsity.com Duty of care Three factors are required to be considered for vulnerability: 1. Was the defendant in a controlling position? 1. Was the plaintiff reliant on the defendant? 2. Was the defendant in a position to be protective of the plaintiff? Docsity.com Purely economic loss  Financial loss unaccompanied by physical injury to person or property  Proximity is also an important test in economic loss cases  Courts were initially reluctant to allow recovery  Now recoverable in certain situations including:  relational interests  negligent misrepresentation Docsity.com Negligent misrepresentation  Economic loss caused by negligent misrepresentation is recoverable where:  a special relationship exists between the parties;  the defendant accepted responsibility in the circumstances of the advice; and  the plaintiff relied upon the misrepresentation. CASE: Hedley Byrne & Co Ltd v Heller and Partners Ltd [1964] Docsity.com Can a disclaimer remove the duty of care?  A representor may remove any duty of care by using an appropriate disclaimer. CASE: Hedley Byrne & Co Ltd v Heller and Partners Ltd [1964] Docsity.com