Chapter 3 - The law of torts. After reading this chapter, you should be able to do the following: Know why most legal systems have tort law, identify the three kinds of torts, show how tort law relates to criminal law and contract law, understand negligent torts and defenses to claims of negligence.
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Trang 2The law of torts
Chapter 3
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– Torts against chattels
• trespass against goods
• conversion of goods
• detinue
Trang 4• Intentional (continued)
– Torts against land
• trespass against land
• public nuisance
• private nuisance
– Tort of defamation
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Tort
• A civil wrong between members of
society, as opposed to a criminal
wrong
• It allows individuals who have suffered
as a result of a tort to be compensated.
Trang 6Tort of negligence
Pre-requisites that must exist:
• A duty of care must be owed by one person to another.
• There must be a breach of that duty of care.
• Damages (physical or financial) must have been suffered as a result of the breach of duty.
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Duty of care
• The “neighbour principle” indicates to whom a duty of care applies, based on:
- foreseeability
- proximity.
Trang 8Neighbour principle
“You must take reasonable care to avoid acts
or omissions which you can reasonably
foresee would be likely to injure your
neighbour.”
“Who in law is my neighbour?
“Persons who are so closely and directly
affected by my act that I ought reasonably to have them in contemplation as to being so
affected when directing my mind to the acts
or omissions which are called in question.”
(Lord Atkin - Donoghue v Stevenson (1932) AC 562 at 580)
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Trang 10• There must be some relationship
between the parties, namely:
- physical proximity
- circumstantial proximity
(i.e relationship between parties exist)
- causal proximity.
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Recovery of economic loss
Resulting from:
• Negligent misstatement
• Loss flowing from damage to the
property of a third party
• Loss as a result of a defective product
or stereotype
• Professional negligence and
economic loss.
Trang 12Duty of care applies
• Negligent misstatements - in respect
to persons 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
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Duty of care applies
• Supplier of goods or services – to persons being supplied
• Local Councils – to persons requiring
Trang 14Breach of the duty of care
Standard of care expected (i.e the amount of care that must be taken in particular circumstances) varies, depending on:
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Breach of duty of care
• Damage must flow from the breach of the duty of care.
Causation based on the “but for” test: “But for the conduct of the defendant,
would the damage have been suffered?”
• The type of damage resulting must have been reasonably foreseeable.
Trang 16Assessment of damages
Financial compensation, to place the plaintiff in the position that they would have been in, had the tort not taken place, is calculated for:
• Loss of income
• Loss of enjoyment of life
• Pain and suffering
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Defences to a claim in
negligence
• Contributory Negligence: Involves
the failure of a plaintiff to take
reasonable care to avoid injury
(Damages pro rata)
• Voluntary Assumption of Risk:
Involves the plaintiff voluntarily
assuming the risk of negligence
(Complete defence - no damages)
Trang 18Precedents existing for tort of
negligence
• Motor vehicle accidents
• Occupier’s liability
• Product liability
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Motor vehicle accidents
All drivers owe other road users
a duty of care.
Trang 20– Third party property insurance (for
damage to another person’s property)
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Occupier
• A person will be regarded as an
occupier of premises if they have the
occupation and control of land or a
structure.
• An occupier owes a duty of care to all
persons (invited and uninvited)
entering their premises.
Trang 22Product liability
Donoghue v Stevenson:
The manufacturer owes a duty of care to ensure that the product does not cause harm.
Part VA-Trade Practices Act 1974 (Cwlth)
Imposes liability on manufacturers and importers
of defective goods
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Torts against the person
• Assault: Occurs when the act of one
person causes another to believe that they are going to be physically harmed
by the person.
• Battery: Is the intentional application of
force to another person.
• False imprisonment: Occurs when a
person’s freedom of movement is
removed so that there is no reasonable means of escape.
Trang 24Torts against chattels
(i.e goods)
• Trespass against goods: A wrongful
interference with the enjoyment of the possession of goods.
• Conversion of goods: An act in
relation to a person’s goods that
eliminates the owner’s rights to the
good.
• Detinue: The wrongful retention of
another person’s goods.
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Torts against land
• Trespass against land: Where owner’s/
occupier’s consent not obtained before
entering (Direct interference with plaintiff’s possession)
• Public nuisance: An act that interferes
with the enjoyment of a right to which all
members of the community are entitled.
• Private nuisance: An unlawful interference
with a person’s use or enjoyment of land,
or with a person’s right over or in
connection with the land (Indirect
interference with plaintiff’s possession )
Trang 26Tort of defamation
• “Defamation” is the publication of a
statement which tends to lower a
person in the estimation of
right-thinking members of society generally;
or which tends to make them shun or avoid that person.”
(Winfield & Jolowicy on Tort p 78)
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Elements of the tort of
defamation The statement must be defamatory, i.e making a
statement which can’t be proven to be true, which tends
to damage a person’s reputation.
Statement must refer to the plaintiff.
The statement must be communicated to a third party The defendant is unable to rely on a valid defence,
Trang 28Remedies for defamatory
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Doctrine of vicarious liability
• Where a particular relationship exists (e.g between employer and
employee), a person can be held
responsible for the acts or omissions, i.e torts, of another person.
Trang 30Vicarious liability
• Vicarious liability – employee
(told what to do and how to do it –
CONTROL TEST)
• No vicarious liability – independent contractor
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• acts occur while carrying on an
authorised task, even if carried out in
an unauthorised manner.