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The document outlines a comprehensive process for analyzing tort cases, including the applicability of the Wrongs Act and Limitation of Actions Act, the establishment of duty of care, breach of duty, and the assessment of damages. It details various legal principles and case law relevant to determining negligence, including foreseeability, causation, and potential defenses. Additionally, it discusses remedies available to plaintiffs and the implications of different types of injuries and circumstances.
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0% found this document useful (0 votes)
18 viewsTort Notes - Google Docs
The document outlines a comprehensive process for analyzing tort cases, including the applicability of the Wrongs Act and Limitation of Actions Act, the establishment of duty of care, breach of duty, and the assessment of damages. It details various legal principles and case law relevant to determining negligence, including foreseeability, causation, and potential defenses. Additionally, it discusses remedies available to plaintiffs and the implications of different types of injuries and circumstances.
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Tort Notes
Question process:
Preliminary:
1. Specify who the plaintiff and defendant are.
2. Determine if the Wrongs Act is applicable.
- Parts X, XI, and VB of the Wrongs Act is only applicable if the case is NOT a
workplace or traffic case. If not used, common law principles will be applied.
- The Wrongs Act will not be applicable if the action was intentional and aimed
to cause death or injury.Section 28C (2) (a), ‘willnot apply to .. an award
where the fault concerned is an intentional act that is done with intent to
cause death or injury or that is sexual assault or other sexual misconduct;’
- Part V (Contributory Negligence) of the Wrongs Act is still applicable in
workplace cases, however, and must be addressed in all cases.
- Notable differences:
● Wrongs Act: ‘Not Insignificant” test, ‘social utility’ calculus factor.
“Appropriate case”.
● Common law: ‘Far fetched and fanciful, other conflicting
responsibilities’ test will be used
3. Check to see if theLimitation of Actions Actappliesto any event.
- Part IIa specifies that in cases that do not involve the workplace, a transport
accident, or non personal injury has a limit of three years from the date of
discoverability, but within 12 years of the wrong actually occurring.
- Actions in tort have a limit of six years from when the wrong occurs. S5(1)(a)
- Personal injury cases have a reduced time limit of 3 years S5(1)(aa)
- Diseases have a limit of three years from the date the plaintiff discovers the
disease S5(1)(a)
- If the plaintiff is out of time, they may seek an extension under S23a-a3 of the
act.
- There is a longer period for seeking extensions for workplace and transport
accidents.
Was a duty of care owed?:
1. Does the potential tort fall under an established duty of care?
● Employer/EmployeeHamilton v Nuroof (WA) Pty Ltd (1956)96 CLR 18)
● School authority/studentCommonwealth of Australiav Introvigne (1982) 150
CLR 258
● O ccupier/entrant Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162
CLR 479
● Road users/other road users Imbree v McNeilly (2008) 236 CLR 510
● Manufacturer/Consumer Donoghue v Stevenson [1932] AC 562
● Doctor/Patient Rogers v Whitaker (1992) 175 CLR 479
● Solicitor/Client Heydon v NRMA Ltd (2000) 51 NSWLR 1
- It still may be necessary to discuss scope. IE: Does a teacher’s duty of
care extend off of school grounds?
2. If the wrong does not fall in to an established category, consider the reasonable
foreseeability:
- Donohuge v Stevenson:Neighbour Principle (Could itbe reasonably foreseen
that the plaintiff would be affected?)
- Caterson v Commissioner of Railways:Class of personsprinciple (Can it be
reasonably expected that a certain class of persons be affected?)
. If it was reasonably foreseeable, and the case is one of personal injury, it can be
3
concluded that a duty of care was owed.D’Orta v Ekinake.
4. If the wrong does not fall into an established duty of care, the salient features of the
relationship must be considered (Caltex Refineries(Qld) Pty Ltd v Stavar).These
salient features are:
- (a) the foreseeability of harm;
- (b) the nature of the harm alleged;
- (c) the degree and nature of control able to be exercised by the defendant to
avoid harm;
- (d) the degree of vulnerability of the plaintiff to harm from the defendant’s
conduct, including the capacity and reasonable expectation of a plaintiff to
take steps to protect itself;
- (e) the degree of reliance by the plaintiff upon the defendant;
- (f) any assumption of responsibility by the defendant;
- (g) the proximity or nearness in a physical, temporal or relational sense of the
plaintiff to the defendant;
- (h) the existence or otherwise of a category of relationship between the
defendant and the plaintiff or a person closely connected with the plaintiff;
- (i) the nature of the activity undertaken by the defendant;
- (j) the nature or the degree of the hazard or danger liable to be caused by the
defendant’s conduct or the activity or substance controlled by the defendant;
(k) knowledge (either actual or constructive) by the defendant that the
conduct will cause harm to the plaintiff; (l) any potential indeterminacy of
liability;
- (m) the nature and consequences of any action that can be taken to avoid the
harm to the plaintiff;
- (n) the extent of imposition on the autonomy or freedom of individuals,
including the right to pursue one’s own interests; (o) the existence of
conflicting duties arising from other principles of law or statute
- (p) consistency with the terms, scope and purpose of any statute relevant to
the existence of a duty; and
- (q) the desirability of, and in some circumstances, need for conformance and
coherence in the structure and fabric of the common law.
5. A re there any policy considerations?Hill v Chief Constable of Yorkshire Police [1989]
AC 53
6. If it is a case of mental injury, there is a different structure used to assess if a duty
was owed: S 72 2
- Was there a recognised psychological injury? (Not mere grief or distress)
- Could the defendant have foreseen that a psychological injury would occur to
a person of normal fortitude?
● Was the mental harm suffered as the result of a sudden shock?
● Did the plaintiff witness a person being harmed/injured/killed?
● What was the nature of the relationship between the plaintiff and the
person harmed/injured/put in danger?
● Was there a pre existing relationship between plaintiff and victim?
- Could the defendant have foreseen that a psychological injury would occur to
a person of less than normal fortitude?
Did a breach occur?
1. Could the defendant have reasonably foreseen the risk?
- Under the Wrongs Act, the standard is that the risk must not be a
‘not-insignificant risk’ - S48(1)(B)
- Under Common law - ‘Far fetched and fanciful’ -WYONGSHIRE COUNCIL V
SHIRT
2. Would a reasonable person have taken precautions to prevent that risk?
- Generally an objective test but can be adjusted based on personal
characteristics like physical disability and age
3. Negligence Calculus:
- Probability that harm would occur
- Likely seriousness of that harm
- Cost of taking precautions
- Social value of the risk creating activity
4. Was the risk obvious? S53 1-5 Wrongs Act
5. Was the plaintiff imprudent?March v Stramere
- An intervening act is enough to break the chain of causation, but if the
intervening act was caused by the original defendant it does not
- General case-by-case basis to deciding causation
6. Is Res Ipsa Loqiuter applicable?
- RIL will only be applicable sometimes
- Can be raised if:
● Would not have happened in an ordinary course of things without
negligence (Cannot be based in speculation).
● The event must have been under D’s control
● Exclusive possession indicates D’s controlByrne
● Kirby J inSchellenberg- Not just physical responsibility,also
responsibility
● Gleeson and McHuh - Plaintiff’s inspection of “thing” suggested
● The actual cause of negligence is unknown.\
Ex1. Meets criteria:
- Would not have occurred without negligence and is not based on speculation, there
appears from the facts to be no other explanation (Lont v Davrose)
- Thing is under defendants control (Schellenberg),Binny had both physical
possession and responsibility
- Cause of accident is unknown
Thus, =can rely on Res Ipsa
Ex2. doesn’t meet criteria
7. Would not have occurred normally
8. Thing is arguably not under control
9. Cause of accident is known.
10.Reach conclusion as to whether a breach occurred.
Are Damages Owed?
1. Was there factual causation?
- Legislation: S51(1)(a)
- Common Law: Strong v Woolworths, But For test
2. Was there legal causation?
- Chapman v Hearse
- Strong v Leach Brain
3. Is it a special case?
- Has the plaintiff been in a situation of risk?
- Is there another tortfeasor?
- Is there a subsequent non-tortious claim that is non certain?
Reach conclusion about whether there was a valid claim of negligence.’
Potential defences
Has the plaintiff failed to reach the appropriate standard of care?
- This is an objective test but is adjustable based on age and disability
- Is this a case of momentary inattention?
● Ruprecht (Workplace) v Coles (Non workplace)
- Was this an instance of the agony of the moment? (Caterson v Commissioner)
ow much has the plaintiff contributed to their own injury?Jones v Livox Quarries
H
Assess P’s contribution to their own injury.
aise Volenti non fit injuria (If you assume risk you can’t sue)
R
Raise Illegality defence.
Is an employer vicariously liable?
- Look at indicia of employment, such as the contract (Hollis v Vabu)
- ersonnel contracting v Jamesk: New approach means that the contract is the ONLY
P
feature that can be looked at
- It may be possible to avoid this relationship if the contract has been varied or if there
was no contract.
Were there multiple tortfeasors?
- Concurrent liability (WA ss 23b; 24(2). Both tortfeasors equally liable and may have
claims laid against them
- Proportionate liability: Wa ss 24a(1) Tortfeasors have varying degrees of liabilities.
Remedies:
- First, determine what type of remedy
● Compensatory
● Exemplary/special (Likely to be awarded in case of intentional conduct.
- Determine whether it was an economic or non-economic loss, or both
In case of Economic loss:
- To calculate Loss of earnings (Norris v Blake): Comparator, adjust for greater
success, adjust down for vicissitudes of life
- Medical bills
- Statutory cap on loss of earnings, s28f ‘The maximum amount of damages that may
be awarded for each week of the period of loss of earnings is an amount that is 3
times the amount of average weekly earnings at the date of the award.’
Non economic loss
- Pain and suffering
- Loss of amenity
- Loss of expectation of life
Did the plaintiff take action to mitigate?
Other limits on recovery
1) Mental harm case (not workplace/transport
- No economic loss damages unless a recognised psychiatric injury (s 75)
- No non-economic loss damages unless reach threshold of 10% (s 28 LE; LB;
LF)
2) Personal injury case (not workplace transport)
- No non-economic loss damages, unless reach threshold greater than 5% (s
28LE; LB; LF)
3) Workplace case
Workplace IRCA - Must suffer “Serious injury”
4) Transport case
TAA - reach threshold
Potential Essay Questions
.
1
2. Is the aim of protecting personal interests better achieved through no-fault statutory
compensation schemes rather than the tort law system?
- Yes and no.
- Specific aim of ‘protecting personal interests’ yes
- Often easier to obtain money
- No extensive/expensive court trial
- Lacks ability to set precedent/ensure long term fairness
- Victims do not get a day in court
- Victims are often under-paid
3. What key principles will a court take into consideration when determining if a duty of
care exists?
- Neighbour principle (Donoghue)
- Class of persons (Caterson)
- Salient Features (Caltex)
- Policy Concerns (Hill)
4. Forseeability, Control
5. In what circumstances will a parent owe a duty of care to protect against harm
caused by a child? Discuss with reference toSmithv Leurs
6.
7. G
8. G
9. G
10.G
11.G
12.G
