HOW LIABILITY IS DETERMINED FOR NEGLIGENCE

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HOW LIABILITY IS DETERMINED FOR HOW LIABILITY IS DETERMINED FOR NEGLIGENCENEGLIGENCE


DUTY OF CARE

STANDARD OF CARE

CAUSATION

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CAUSATIONCAUSATIONCAUSATIONCAUSATION

WHETHER THE DEFENDANT'S ACT OR OMISSION WAS THE CAUSETHE CAUSE OF THE PLAINTIFF'S INJURIES OR HARM SUFFERED?

WHETHER THE DEFENDANT'S ACT OR OMISSION WAS THE CAUSETHE CAUSE OF THE PLAINTIFF'S INJURIES OR HARM SUFFERED?

SIMPLE TEST DEVELOPED TO DETERMINE CAUSATION IS THE "BUT FORBUT FOR" TEST

SIMPLE TEST DEVELOPED TO DETERMINE CAUSATION IS THE "BUT FORBUT FOR" TEST

QUESTION FOR THE TEST:BUT FORBUT FOR THE DEFENDANT'S ACTIONS OR OMISSIONS, WOULD THE PLAINTIFF HAVE SUFFERED DAMAGE?

ONUS OF PROVING THIS IS ON THE PLAINTIFF

QUESTION FOR THE TEST:BUT FORBUT FOR THE DEFENDANT'S ACTIONS OR OMISSIONS, WOULD THE PLAINTIFF HAVE SUFFERED DAMAGE?

ONUS OF PROVING THIS IS ON THE PLAINTIFF

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BARNETT v CHELSEA HOSPITALBARNETT v CHELSEA HOSPITAL

FACTS:FACTS: P's HUSBAND BECOME ILL AFTER DRINKING SOME TEA - WENT TO THE DEFENDANT HOSPITAL BUT DOCTOR ON CALL WAS HIMSELF NOT WELL & ASKED THE NURSE TO TELL HIM TO GO HOME AND SEE HIS OWN DOCTOR - THE MAN WAS IN FACT SUFFERING ARSENIC POISONING & DIED

FACTS:FACTS: P's HUSBAND BECOME ILL AFTER DRINKING SOME TEA - WENT TO THE DEFENDANT HOSPITAL BUT DOCTOR ON CALL WAS HIMSELF NOT WELL & ASKED THE NURSE TO TELL HIM TO GO HOME AND SEE HIS OWN DOCTOR - THE MAN WAS IN FACT SUFFERING ARSENIC POISONING & DIED

HELD:HELD: HOSPITAL OWED A DUTY OF CARE AND WAS IN BREACH OF THE STANDARD OF CARE BUT - IT WAS NOT LIABLE AS P DID NOT PROVE THAT BUT FORBUT FOR THE HOSPITAL'S NEGLIGENCE HER HUSBAND WOULD NOT HAVE DIED

HELD:HELD: HOSPITAL OWED A DUTY OF CARE AND WAS IN BREACH OF THE STANDARD OF CARE BUT - IT WAS NOT LIABLE AS P DID NOT PROVE THAT BUT FORBUT FOR THE HOSPITAL'S NEGLIGENCE HER HUSBAND WOULD NOT HAVE DIED

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SEE ALSO L-4-130; GF-P.137SEE ALSO L-4-130; GF-P.137

CORK v KIRBY MCLEAN LTD CORK v KIRBY MCLEAN LTD CORK v KIRBY MCLEAN LTD CORK v KIRBY MCLEAN LTD

YATES v JONESYATES v JONESYATES v JONESYATES v JONES

LINDEMAN v COLVINLINDEMAN v COLVINLINDEMAN v COLVINLINDEMAN v COLVIN

IMPORTANT TO NOTE THAT THE HIGH COURT IN AUSTRALIA HAS EMPHASISED THAT THE BUT FOR TEST IS NOT AN EXCLUSIVE TEST FOR CAUSATION. OTHER TEST MAY ALSO BE USED. E.g. WHETHER THE DEFENDANT’S ACTS OR OMISSIONS CAUSED OR MATERIALLY CONTRIBUTED TO THE PLAINTIFF’S LOSS, DAMAGE OR INJURY

IMPORTANT TO NOTE THAT THE HIGH COURT IN AUSTRALIA HAS EMPHASISED THAT THE BUT FOR TEST IS NOT AN EXCLUSIVE TEST FOR CAUSATION. OTHER TEST MAY ALSO BE USED. E.g. WHETHER THE DEFENDANT’S ACTS OR OMISSIONS CAUSED OR MATERIALLY CONTRIBUTED TO THE PLAINTIFF’S LOSS, DAMAGE OR INJURY

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CIVIL LIABILITY REFORM LAWCIVIL LIABILITY REFORM LAW

CIVIL LIABILITY REFORM LAWS HAVE MODIFIED ‘CAUSATION’ AND NOW PROVIDE THAT TESTS SHOULD BE:

IF DEFENDANT HAD ACTED CAREFULLY WOULD PLAINTIFF HAVE SUFFERED HARM?

AND

IS IT APPROPRIATE FOR THE LIABILITY TO EXTEND TO THE HARM?

CIVIL LIABILITY REFORM LAWS HAVE MODIFIED ‘CAUSATION’ AND NOW PROVIDE THAT TESTS SHOULD BE:

IF DEFENDANT HAD ACTED CAREFULLY WOULD PLAINTIFF HAVE SUFFERED HARM?

AND

IS IT APPROPRIATE FOR THE LIABILITY TO EXTEND TO THE HARM?

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DUTY OF CARE

STANDARD OF CARE

CAUSATION

REMOTENESS OF DAMAGE

UNREALISTIC TO HOLD THE DEFENDANT LIABLE FOR A NEVER-ENDING CHAIN OF EVENTS - THEREFORE LIABILITY IS LIMITED BY THE REMOTENESS OF DAMAGE TEST

UNREALISTIC TO HOLD THE DEFENDANT LIABLE FOR A NEVER-ENDING CHAIN OF EVENTS - THEREFORE LIABILITY IS LIMITED BY THE REMOTENESS OF DAMAGE TEST

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WAGON MOUND NO:1WAGON MOUND NO:1 L-4-140; GF-p.140L-4-140; GF-p.140WAGON MOUND NO:1WAGON MOUND NO:1 L-4-140; GF-p.140L-4-140; GF-p.140

CALTEX REFINERY

WAGON MOUNDWAGON MOUND

DOCKSDOCKS

OILOIL

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TEST: DAMAGE MUST BE OF A TEST: DAMAGE MUST BE OF A TYPETYPE THAT A THAT A REASONABLE PERSON WOULD HAVE FORESEEN REASONABLE PERSON WOULD HAVE FORESEEN AND IT DOES NOT MATTER THAT THE AND IT DOES NOT MATTER THAT THE EXTENTEXTENT OF OF DAMAGE WAS NOT FORESEEABLEDAMAGE WAS NOT FORESEEABLE

TEST: DAMAGE MUST BE OF A TEST: DAMAGE MUST BE OF A TYPETYPE THAT A THAT A REASONABLE PERSON WOULD HAVE FORESEEN REASONABLE PERSON WOULD HAVE FORESEEN AND IT DOES NOT MATTER THAT THE AND IT DOES NOT MATTER THAT THE EXTENTEXTENT OF OF DAMAGE WAS NOT FORESEEABLEDAMAGE WAS NOT FORESEEABLE

WAGON MOUND NO:1WAGON MOUND NO:1WAGON MOUND NO:1WAGON MOUND NO:1

Is type of damage

foreseeable?

If If YESYES - liable for that - liable for that TYPETYPE or or KINDKIND of of reasonably foreseeable reasonably foreseeable damage and damage and EXTENTEXTENT or or AMOUNTAMOUNT of of damage is immaterialdamage is immaterial

If If YESYES - liable for that - liable for that TYPETYPE or or KINDKIND of of reasonably foreseeable reasonably foreseeable damage and damage and EXTENTEXTENT or or AMOUNTAMOUNT of of damage is immaterialdamage is immaterial

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Is type of damage

foreseeable?

If If YESYES - liable for that - liable for that TYPETYPE or or KINDKIND of of reasonably foreseeablereasonably foreseeable damage and damage and EXTENTEXTENT or or AMOUNTAMOUNT of of damage is immaterialdamage is immaterial

If If YESYES - liable for that - liable for that TYPETYPE or or KINDKIND of of reasonably foreseeablereasonably foreseeable damage and damage and EXTENTEXTENT or or AMOUNTAMOUNT of of damage is immaterialdamage is immaterial

What is

reasonably

foreseeable?

DISCUSSED IN WAGON MOUND NO: 2WAGON MOUND NO: 2

IF THERE WAS A REAL AND NOT A FAR-FETCHED RISK OF DAMAGE AND IT COULD BE ELIMINATED WITHOUT ANY DIFFICULTY, DISADVANTAGE OR EXPENSE THE DEFENDANT WOULD BE LIABLE

DISCUSSED IN WAGON MOUND NO: 2WAGON MOUND NO: 2

IF THERE WAS A REAL AND NOT A FAR-FETCHED RISK OF DAMAGE AND IT COULD BE ELIMINATED WITHOUT ANY DIFFICULTY, DISADVANTAGE OR EXPENSE THE DEFENDANT WOULD BE LIABLE

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““THIN-SKULLEDTHIN-SKULLED” OR “” OR “EGG-EGG-SHELLSHELL” RULE.” RULE.

““THIN-SKULLEDTHIN-SKULLED” OR “” OR “EGG-EGG-SHELLSHELL” RULE.” RULE.

YOU MUST TAKE YOUR VICTIM AS YOU MUST TAKE YOUR VICTIM AS YOU FIND HIM/HERYOU FIND HIM/HER

YOU MUST TAKE YOUR VICTIM AS YOU MUST TAKE YOUR VICTIM AS YOU FIND HIM/HERYOU FIND HIM/HER

WOULD THIS RULE CONTRADICT THE WOULD THIS RULE CONTRADICT THE REMOTENESS OF DAMAGE RULE AS REMOTENESS OF DAMAGE RULE AS PROPOUNDED IN PROPOUNDED IN WAGON MOUND NOS: 1 & 2??

WOULD THIS RULE CONTRADICT THE WOULD THIS RULE CONTRADICT THE REMOTENESS OF DAMAGE RULE AS REMOTENESS OF DAMAGE RULE AS PROPOUNDED IN PROPOUNDED IN WAGON MOUND NOS: 1 & 2??

OTHER RULES THAT MAY AFFECT DAMAGES

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SMITH v LEECH BRAIN & CO LTDSMITH v LEECH BRAIN & CO LTDSMITH v LEECH BRAIN & CO LTDSMITH v LEECH BRAIN & CO LTD

FACTS:FACTS: PLAINTIFF'S HUSBAND WAS A CRANE PLAINTIFF'S HUSBAND WAS A CRANE DRIVER AND SUFFERED A BURNT LIP FROM SOME DRIVER AND SUFFERED A BURNT LIP FROM SOME MOLTEN METAL AT WORK. IT TURNED CANCEROUS MOLTEN METAL AT WORK. IT TURNED CANCEROUS AS HE HAD A SUSCEPTIBILITY TO CANCER - HE DIEDAS HE HAD A SUSCEPTIBILITY TO CANCER - HE DIED

FACTS:FACTS: PLAINTIFF'S HUSBAND WAS A CRANE PLAINTIFF'S HUSBAND WAS A CRANE DRIVER AND SUFFERED A BURNT LIP FROM SOME DRIVER AND SUFFERED A BURNT LIP FROM SOME MOLTEN METAL AT WORK. IT TURNED CANCEROUS MOLTEN METAL AT WORK. IT TURNED CANCEROUS AS HE HAD A SUSCEPTIBILITY TO CANCER - HE DIEDAS HE HAD A SUSCEPTIBILITY TO CANCER - HE DIED

HELD:HELD: THE BURN WAS A FORESEEABLE THE BURN WAS A FORESEEABLE CONSEQUENCECONSEQUENCE OF THE DEFENDANT’S NEGLIGENCE. OF THE DEFENDANT’S NEGLIGENCE. THE DEFENDANT WAS LIABLE EVEN THOUGH THE THE DEFENDANT WAS LIABLE EVEN THOUGH THE DEATH, IN ITSELF, WAS NOT A REASONABLY DEATH, IN ITSELF, WAS NOT A REASONABLY FORESEEABLE CONSEQUENCE.FORESEEABLE CONSEQUENCE.

HELD:HELD: THE BURN WAS A FORESEEABLE THE BURN WAS A FORESEEABLE CONSEQUENCECONSEQUENCE OF THE DEFENDANT’S NEGLIGENCE. OF THE DEFENDANT’S NEGLIGENCE. THE DEFENDANT WAS LIABLE EVEN THOUGH THE THE DEFENDANT WAS LIABLE EVEN THOUGH THE DEATH, IN ITSELF, WAS NOT A REASONABLY DEATH, IN ITSELF, WAS NOT A REASONABLY FORESEEABLE CONSEQUENCE.FORESEEABLE CONSEQUENCE.

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IT DID NOT CONTRADICT THE "THIN IT DID NOT CONTRADICT THE "THIN SKULL” RULE - ONLY SKULL” RULE - ONLY TYPE OF DAMAGES TYPE OF DAMAGES MUST BE FORESEEABLE NOT EXTENTMUST BE FORESEEABLE NOT EXTENT

IT DID NOT CONTRADICT THE "THIN IT DID NOT CONTRADICT THE "THIN SKULL” RULE - ONLY SKULL” RULE - ONLY TYPE OF DAMAGES TYPE OF DAMAGES MUST BE FORESEEABLE NOT EXTENTMUST BE FORESEEABLE NOT EXTENT

TEST HERE WAS NOT WHETHER THE TEST HERE WAS NOT WHETHER THE BURNS WOULD CAUSE CANCER BUT BURNS WOULD CAUSE CANCER BUT WHETHER THE NEGLIGENT ACT WOULD WHETHER THE NEGLIGENT ACT WOULD CAUSE BURNSCAUSE BURNS? CONSEQUENCES WERE ? CONSEQUENCES WERE IMMATERIAL TO DETERMINE LIABILITYIMMATERIAL TO DETERMINE LIABILITY

TEST HERE WAS NOT WHETHER THE TEST HERE WAS NOT WHETHER THE BURNS WOULD CAUSE CANCER BUT BURNS WOULD CAUSE CANCER BUT WHETHER THE NEGLIGENT ACT WOULD WHETHER THE NEGLIGENT ACT WOULD CAUSE BURNSCAUSE BURNS? CONSEQUENCES WERE ? CONSEQUENCES WERE IMMATERIAL TO DETERMINE LIABILITYIMMATERIAL TO DETERMINE LIABILITY


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Is type of damage

foreseeable?

DEATH WAS CAUSED BECAUSE VICTIM HAD A SUSCEPTIBILITY TO CANCER

DEATH WAS CAUSED BECAUSE VICTIM HAD A SUSCEPTIBILITY TO CANCER

EXTENT OF DAMAGE IMMATERIAL & THIN SKULL RULE APPLIED: YOU TAKE YOUR VICTIMS AS YOU FIND THEM

EXTENT OF DAMAGE IMMATERIAL & THIN SKULL RULE APPLIED: YOU TAKE YOUR VICTIMS AS YOU FIND THEM

AS DISCUSSED IN WAGON MOUND NO: 2

THERE WAS A REAL AND NOT A FAR-FETCHED RISK OF BURNS BEING CAUSED BY THE NEGLIGENT ACT

AS DISCUSSED IN WAGON MOUND NO: 2

THERE WAS A REAL AND NOT A FAR-FETCHED RISK OF BURNS BEING CAUSED BY THE NEGLIGENT ACT

What is reasonably foreseeable?


ACCORDING TO WAGON MOUND NO:1

YES - the TYPE or KIND of harm (i.e. burns) was reasonably foreseeable

ACCORDING TO WAGON MOUND NO:1

YES - the TYPE or KIND of harm (i.e. burns) was reasonably foreseeable

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NOVUS ACTUS INTERVENIENS NOVUS ACTUS INTERVENIENS NOVUS ACTUS INTERVENIENS NOVUS ACTUS INTERVENIENS

OTHER RULES THAT MAY AFFECT DAMAGES

WHERE A WHERE A NEW INTERVENING ACTNEW INTERVENING ACT TAKES TAKES PLACE PLACE AFTERAFTER THE DEFENDANT’S NEGLIGENCE THE DEFENDANT’S NEGLIGENCE AND IS THE “PROXIMATE” OR “ACTUAL” AND IS THE “PROXIMATE” OR “ACTUAL” CAUSE OF THE PLAINTIFF’S DAMAGECAUSE OF THE PLAINTIFF’S DAMAGE

WHERE A WHERE A NEW INTERVENING ACTNEW INTERVENING ACT TAKES TAKES PLACE PLACE AFTERAFTER THE DEFENDANT’S NEGLIGENCE THE DEFENDANT’S NEGLIGENCE AND IS THE “PROXIMATE” OR “ACTUAL” AND IS THE “PROXIMATE” OR “ACTUAL” CAUSE OF THE PLAINTIFF’S DAMAGECAUSE OF THE PLAINTIFF’S DAMAGE

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DUTY OF CARE

STANDARD OF CARE

CAUSATION

REMOTENESS OF DAMAGE

DEFENCES

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DEFENCESDEFENCES

ONCE A PRIMA FACIE CASE HAS BEEN ONCE A PRIMA FACIE CASE HAS BEEN ESTABLISHED THE DEFENDANT CAN STILL ESTABLISHED THE DEFENDANT CAN STILL RESIST, REBUT OR REDUCE LIABILITY BY RESIST, REBUT OR REDUCE LIABILITY BY RELYING ON A NUMBER OF DEFENCESRELYING ON A NUMBER OF DEFENCES

ONCE A PRIMA FACIE CASE HAS BEEN ONCE A PRIMA FACIE CASE HAS BEEN ESTABLISHED THE DEFENDANT CAN STILL ESTABLISHED THE DEFENDANT CAN STILL RESIST, REBUT OR REDUCE LIABILITY BY RESIST, REBUT OR REDUCE LIABILITY BY RELYING ON A NUMBER OF DEFENCESRELYING ON A NUMBER OF DEFENCES

VOLENTI NON FIT INJURIAVOLENTI NON FIT INJURIA - - VOLUNTARY ASSUMPTION OF RISKVOLUNTARY ASSUMPTION OF RISKVOLENTI NON FIT INJURIAVOLENTI NON FIT INJURIA - - VOLUNTARY ASSUMPTION OF RISKVOLUNTARY ASSUMPTION OF RISK

CONTRIBUTORY NEGLIGENCECONTRIBUTORY NEGLIGENCECONTRIBUTORY NEGLIGENCECONTRIBUTORY NEGLIGENCE

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VOLENTI NON FIT INJURIAVOLENTI NON FIT INJURIA - - VOLUNTARY ASSUMPTION OF RISKVOLUNTARY ASSUMPTION OF RISK

L-4-170; GF-p.142L-4-170; GF-p.142

VOLENTI NON FIT INJURIAVOLENTI NON FIT INJURIA - - VOLUNTARY ASSUMPTION OF RISKVOLUNTARY ASSUMPTION OF RISK

L-4-170; GF-p.142L-4-170; GF-p.142

TO BE EFFECTIVE THE CONSENT MUST BE TO BE EFFECTIVE THE CONSENT MUST BE TO THE TO THE FULL RISKFULL RISK AND AND MERE KNOWLEDGEMERE KNOWLEDGE OF THE RISK IS INSUFFICIENTOF THE RISK IS INSUFFICIENT

TO BE EFFECTIVE THE CONSENT MUST BE TO BE EFFECTIVE THE CONSENT MUST BE TO THE TO THE FULL RISKFULL RISK AND AND MERE KNOWLEDGEMERE KNOWLEDGE OF THE RISK IS INSUFFICIENTOF THE RISK IS INSUFFICIENT

IT IS A IT IS A TOTALTOTAL DEFENCE AND THE PLAINTIFF DEFENCE AND THE PLAINTIFF WILL GET NOTHING IF IT IS SUCCESSFULLY WILL GET NOTHING IF IT IS SUCCESSFULLY ESTABLISHED BY THE DEFENDANTESTABLISHED BY THE DEFENDANT

IT IS A IT IS A TOTALTOTAL DEFENCE AND THE PLAINTIFF DEFENCE AND THE PLAINTIFF WILL GET NOTHING IF IT IS SUCCESSFULLY WILL GET NOTHING IF IT IS SUCCESSFULLY ESTABLISHED BY THE DEFENDANTESTABLISHED BY THE DEFENDANT

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SMITH v BAKER & SONSSMITH v BAKER & SONSSMITH v BAKER & SONSSMITH v BAKER & SONS

FACTS:FACTS: P EMPLOYED BY D AS A BUILDING WORKER. HE WORKED IN A PLACE WHERE, OCCASIONALLY, A CRANE LIFTED ROCKS & STONES OVER HIS HEAD. HE WAS AWARE OF THE RISK POSED - A ROCK FELL & INJURED HIM

FACTS:FACTS: P EMPLOYED BY D AS A BUILDING WORKER. HE WORKED IN A PLACE WHERE, OCCASIONALLY, A CRANE LIFTED ROCKS & STONES OVER HIS HEAD. HE WAS AWARE OF THE RISK POSED - A ROCK FELL & INJURED HIM

HELD:HELD: THE MERE FACT THAT P HAD FULL KNOWLEDGE AND UNDERSTANDING OF THE RISK DID NOT PRECLUDE HIM FROM RECOVERING THE DAMAGES - TO SUCCESSFULLY RAISE THE DEFENCE OF VOLUNTI NON FIT INJURIA D MUST SHOW THAT P CONSENTEDCONSENTED TO THE RISK.

HELD:HELD: THE MERE FACT THAT P HAD FULL KNOWLEDGE AND UNDERSTANDING OF THE RISK DID NOT PRECLUDE HIM FROM RECOVERING THE DAMAGES - TO SUCCESSFULLY RAISE THE DEFENCE OF VOLUNTI NON FIT INJURIA D MUST SHOW THAT P CONSENTEDCONSENTED TO THE RISK.

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O'SHEA v PERMANENT TRUSTEE CO. OF NSW LTDO'SHEA v PERMANENT TRUSTEE CO. OF NSW LTDO'SHEA v PERMANENT TRUSTEE CO. OF NSW LTDO'SHEA v PERMANENT TRUSTEE CO. OF NSW LTD

FACTS:FACTS: P WAS A PASSENGER IN A CAR DRIVEN BY F THE INSURED OF D - BOTH P & F HAD BEEN DRINKING - F HAD BLOOD ALCOHOL LEVEL OF 0.15 - P HAD NOT BEEN WITH F THROUGHOUT THE EVENING & DID NOT KNOW HOW MUCH HE HAD HAD TO DRINK.

FACTS:FACTS: P WAS A PASSENGER IN A CAR DRIVEN BY F THE INSURED OF D - BOTH P & F HAD BEEN DRINKING - F HAD BLOOD ALCOHOL LEVEL OF 0.15 - P HAD NOT BEEN WITH F THROUGHOUT THE EVENING & DID NOT KNOW HOW MUCH HE HAD HAD TO DRINK.

HELD:HELD: P HAD A PERCEPTION OF THE DANGER BUT THAT DOES NOT ESTABLISH VOLUNTI FOR THERE MUST BE FULL COMPREHENSION OF ITS EXTENT - WHICH WAS NOT ESTABLISH BY THE FACTS. P WAS 25 % TO BE BLAMED.

HELD:HELD: P HAD A PERCEPTION OF THE DANGER BUT THAT DOES NOT ESTABLISH VOLUNTI FOR THERE MUST BE FULL COMPREHENSION OF ITS EXTENT - WHICH WAS NOT ESTABLISH BY THE FACTS. P WAS 25 % TO BE BLAMED.

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CONTRIBUTORY NEGLIGENCECONTRIBUTORY NEGLIGENCE L-4-160; GF-p.141L-4-160; GF-p.141CONTRIBUTORY NEGLIGENCECONTRIBUTORY NEGLIGENCE L-4-160; GF-p.141L-4-160; GF-p.141

CRITICISMS OF THE RULE RESULTED IN THE PASSING IN THE UK OF THE LAW REFORM (CONTRIBUTORY NEGLIGENCE) ACT 1945 WHICH WAS ESSENTIALLY FOLLOWED IN W.A. BY THE LAW REFORM (CONTRIBUTORY NEGLIGENCE AND TORTFEASORS' CONTRIBUTION) ACT IN 1947

CRITICISMS OF THE RULE RESULTED IN THE PASSING IN THE UK OF THE LAW REFORM (CONTRIBUTORY NEGLIGENCE) ACT 1945 WHICH WAS ESSENTIALLY FOLLOWED IN W.A. BY THE LAW REFORM (CONTRIBUTORY NEGLIGENCE AND TORTFEASORS' CONTRIBUTION) ACT IN 1947

ACT ESSENTIALLY PROVIDES THAT DAMAGES CAN NOW BE APPORTIONED TAKING INTO ACCOUNT THE DEGREE OF CONTRIBUTORY NEGLIGENCE OF THE PLAINTIFF

ACT ESSENTIALLY PROVIDES THAT DAMAGES CAN NOW BE APPORTIONED TAKING INTO ACCOUNT THE DEGREE OF CONTRIBUTORY NEGLIGENCE OF THE PLAINTIFF

AT COMMON LAW NO DAMAGES WERE PAYABLE IF CONTRIBUTORY NEGLIGENCE WAS ESTABLISHED

AT COMMON LAW NO DAMAGES WERE PAYABLE IF CONTRIBUTORY NEGLIGENCE WAS ESTABLISHED

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LIABILITY FOR PURE LIABILITY FOR PURE ECONOMIC LOSS FOR ECONOMIC LOSS FOR

NEGLIGENT MISSTATEMENTS NEGLIGENT MISSTATEMENTS AND NEGLIGENT ACTS AND NEGLIGENT ACTS

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PURE ECONOMIC LOSS FORPURE ECONOMIC LOSS FOR

YOU WILL PASS BUS165!YOU WILL PASS BUS165!

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HOW LIABILITY IS DETERMINED FOR HOW LIABILITY IS DETERMINED FOR NEGLIGENT MISSTATEMENTNEGLIGENT MISSTATEMENT

HOW LIABILITY IS DETERMINED FOR HOW LIABILITY IS DETERMINED FOR NEGLIGENT MISSTATEMENTNEGLIGENT MISSTATEMENT

DUTY OF CARE

FOR GENERAL FOR GENERAL NEGLIGENCE A LEGAL NEGLIGENCE A LEGAL RELATIONSHIPRELATIONSHIP OR OR OBLIGATION MUST BE OBLIGATION MUST BE ESTABLISHED ESTABLISHED

FOR GENERAL FOR GENERAL NEGLIGENCE A LEGAL NEGLIGENCE A LEGAL RELATIONSHIPRELATIONSHIP OR OR OBLIGATION MUST BE OBLIGATION MUST BE ESTABLISHED ESTABLISHED

FOR NEGLIGENT FOR NEGLIGENT MISSTATEMENT A MISSTATEMENT A ““SPECIALSPECIAL” ” RELATIONSHIPRELATIONSHIP OR OR OBLIGATION MUST BE OBLIGATION MUST BE ESTABLISHEDESTABLISHED

FOR NEGLIGENT FOR NEGLIGENT MISSTATEMENT A MISSTATEMENT A ““SPECIALSPECIAL” ” RELATIONSHIPRELATIONSHIP OR OR OBLIGATION MUST BE OBLIGATION MUST BE ESTABLISHEDESTABLISHED

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NEGLIGENT MISSTATEMENTSNEGLIGENT MISSTATEMENTSNEGLIGENT MISSTATEMENTSNEGLIGENT MISSTATEMENTS

HEDLEY BYRNE v HELLERHEDLEY BYRNE v HELLER L-4-240; GF-p.164L-4-240; GF-p.164HEDLEY BYRNE v HELLERHEDLEY BYRNE v HELLER L-4-240; GF-p.164L-4-240; GF-p.164

HELD:HELD: THERE COULD BE A DUTY OF CARE WITH THERE COULD BE A DUTY OF CARE WITH RESPECT TO NEGLIGENT RESPECT TO NEGLIGENT MISSTATEMENTMISSTATEMENT BUT IT BUT IT WAS WAS NOT TO BE AS WIDENOT TO BE AS WIDE AS THE " AS THE "FORESIGHTFORESIGHT" " TEST USED FOR NEGLIGENT TEST USED FOR NEGLIGENT ACTSACTS

HELD:HELD: THERE COULD BE A DUTY OF CARE WITH THERE COULD BE A DUTY OF CARE WITH RESPECT TO NEGLIGENT RESPECT TO NEGLIGENT MISSTATEMENTMISSTATEMENT BUT IT BUT IT WAS WAS NOT TO BE AS WIDENOT TO BE AS WIDE AS THE " AS THE "FORESIGHTFORESIGHT" " TEST USED FOR NEGLIGENT TEST USED FOR NEGLIGENT ACTSACTS

FOR NEGLIGENT MISSTATEMENTS - DUTY OF CARE FOR NEGLIGENT MISSTATEMENTS - DUTY OF CARE ONLY AROSE IF THERE WAS A "ONLY AROSE IF THERE WAS A "SPECIAL SPECIAL RELATIONSHIPRELATIONSHIP" BETWEEN THE INQUIRER AND " BETWEEN THE INQUIRER AND MAKER OF THE STATEMENTMAKER OF THE STATEMENT

FOR NEGLIGENT MISSTATEMENTS - DUTY OF CARE FOR NEGLIGENT MISSTATEMENTS - DUTY OF CARE ONLY AROSE IF THERE WAS A "ONLY AROSE IF THERE WAS A "SPECIAL SPECIAL RELATIONSHIPRELATIONSHIP" BETWEEN THE INQUIRER AND " BETWEEN THE INQUIRER AND MAKER OF THE STATEMENTMAKER OF THE STATEMENT

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THIS THIS SPECIAL RELATIONSHIPSPECIAL RELATIONSHIP EXISTED ONLY WHEN:- EXISTED ONLY WHEN:-

•THE INQUIRER THE INQUIRER TRUSTEDTRUSTED THE MAKER TO TAKE SUCH THE MAKER TO TAKE SUCH DEGREE OF CARE AS THE CIRCUMSTANCES REQUIREDDEGREE OF CARE AS THE CIRCUMSTANCES REQUIRED

•IT WAS REASONABLE FOR THE INQUIRER TO IT WAS REASONABLE FOR THE INQUIRER TO TRUSTTRUST THE THE MAKERMAKER

•MAKER GAVE THE ADVICE KNOWING OF THE MAKER GAVE THE ADVICE KNOWING OF THE TRUSTTRUST

•ADVICE GIVEN IN RESPONSE TO A SPECIFIC ENQUIRYADVICE GIVEN IN RESPONSE TO A SPECIFIC ENQUIRY

•INFORMATION USED FOR THE PURPOSE OF THE ENQUIRYINFORMATION USED FOR THE PURPOSE OF THE ENQUIRY

•NO DISCLAIMER OF RESPONSIBILITYNO DISCLAIMER OF RESPONSIBILITY

THIS THIS SPECIAL RELATIONSHIPSPECIAL RELATIONSHIP EXISTED ONLY WHEN:- EXISTED ONLY WHEN:-

•THE INQUIRER THE INQUIRER TRUSTEDTRUSTED THE MAKER TO TAKE SUCH THE MAKER TO TAKE SUCH DEGREE OF CARE AS THE CIRCUMSTANCES REQUIREDDEGREE OF CARE AS THE CIRCUMSTANCES REQUIRED

•IT WAS REASONABLE FOR THE INQUIRER TO IT WAS REASONABLE FOR THE INQUIRER TO TRUSTTRUST THE THE MAKERMAKER

•MAKER GAVE THE ADVICE KNOWING OF THE MAKER GAVE THE ADVICE KNOWING OF THE TRUSTTRUST

•ADVICE GIVEN IN RESPONSE TO A SPECIFIC ENQUIRYADVICE GIVEN IN RESPONSE TO A SPECIFIC ENQUIRY

•INFORMATION USED FOR THE PURPOSE OF THE ENQUIRYINFORMATION USED FOR THE PURPOSE OF THE ENQUIRY

•NO DISCLAIMER OF RESPONSIBILITYNO DISCLAIMER OF RESPONSIBILITY

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GENERAL NEGLIGENCE

GENERAL NEGLIGENCE

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NEGLIGENT

NEGLIGENT

MISSTATEMENT

MISSTATEMENT

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“SP

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” “S

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THERE WILL BE ADDITIONAL REQUIREMENTS TO ESTABLISH A DUTY OF CARE

THERE WILL BE ADDITIONAL REQUIREMENTS TO ESTABLISH A DUTY OF CARE


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IS THIS DUTY OWED ONLY BY IS THIS DUTY OWED ONLY BY PERSONS WHOSE BUSINESS IT IS PERSONS WHOSE BUSINESS IT IS TO GIVE ADVICE OR DOES TO GIVE ADVICE OR DOES EVERYONE WHO GIVES EVERYONE WHO GIVES INFORMATION HAVE AN INFORMATION HAVE AN OBLIGATION TO BE CAREFUL?OBLIGATION TO BE CAREFUL?

IS THIS DUTY OWED ONLY BY IS THIS DUTY OWED ONLY BY PERSONS WHOSE BUSINESS IT IS PERSONS WHOSE BUSINESS IT IS TO GIVE ADVICE OR DOES TO GIVE ADVICE OR DOES EVERYONE WHO GIVES EVERYONE WHO GIVES INFORMATION HAVE AN INFORMATION HAVE AN OBLIGATION TO BE CAREFUL?OBLIGATION TO BE CAREFUL?

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L SHADDOCK & ASSOCIATES PTY LTD v PARRAMATTA CITY COUNCIL L SHADDOCK & ASSOCIATES PTY LTD v PARRAMATTA CITY COUNCIL L-4-260; GF-p.165L-4-260; GF-p.165

L SHADDOCK & ASSOCIATES PTY LTD v PARRAMATTA CITY COUNCIL L SHADDOCK & ASSOCIATES PTY LTD v PARRAMATTA CITY COUNCIL L-4-260; GF-p.165L-4-260; GF-p.165

Facts:Facts: Purchasers, before buying the property Purchasers, before buying the property in question for redevelopment, had inquired from in question for redevelopment, had inquired from the Municipal Council if property was proposed to the Municipal Council if property was proposed to be affected by any road widening or re-alignment be affected by any road widening or re-alignment proposals. In the certificate issued by the Council it proposals. In the certificate issued by the Council it failed to disclose that the land would be subject to failed to disclose that the land would be subject to road widening. In reliance on the certificate the road widening. In reliance on the certificate the purchasers bought the property.purchasers bought the property.

Facts:Facts: Purchasers, before buying the property Purchasers, before buying the property in question for redevelopment, had inquired from in question for redevelopment, had inquired from the Municipal Council if property was proposed to the Municipal Council if property was proposed to be affected by any road widening or re-alignment be affected by any road widening or re-alignment proposals. In the certificate issued by the Council it proposals. In the certificate issued by the Council it failed to disclose that the land would be subject to failed to disclose that the land would be subject to road widening. In reliance on the certificate the road widening. In reliance on the certificate the purchasers bought the property.purchasers bought the property.

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HELD:HELD: THE PERSON THE PERSON GIVING INFORMATION TO GIVING INFORMATION TO ANOTHER WHOM S/HE ANOTHER WHOM S/HE KNOWS WILL RELY UPON KNOWS WILL RELY UPON IT IN CIRCUMSTANCES IN IT IN CIRCUMSTANCES IN WHICH IT IS REASONABLE WHICH IT IS REASONABLE TO DO SOTO DO SO, IS UNDER A , IS UNDER A DUTY TO EXERCISE DUTY TO EXERCISE REASONABLE CARE THAT REASONABLE CARE THAT THE INFORMATION GIVEN THE INFORMATION GIVEN IS CORRECTIS CORRECT

HELD:HELD: THE PERSON THE PERSON GIVING INFORMATION TO GIVING INFORMATION TO ANOTHER WHOM S/HE ANOTHER WHOM S/HE KNOWS WILL RELY UPON KNOWS WILL RELY UPON IT IN CIRCUMSTANCES IN IT IN CIRCUMSTANCES IN WHICH IT IS REASONABLE WHICH IT IS REASONABLE TO DO SOTO DO SO, IS UNDER A , IS UNDER A DUTY TO EXERCISE DUTY TO EXERCISE REASONABLE CARE THAT REASONABLE CARE THAT THE INFORMATION GIVEN THE INFORMATION GIVEN IS CORRECTIS CORRECT

INFORMATION


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SHADDOCK'S CASESHADDOCK'S CASE IN FACT APPROVED THE IN FACT APPROVED THE MINORITY VIEW IN MINORITY VIEW IN MLC v EVATTMLC v EVATT [L-4-260; GF-p.165][L-4-260; GF-p.165]

MINORITY IN MINORITY IN M.L.C. v EVATTM.L.C. v EVATT HELD THAT IF HELD THAT IFTHE INFORMATION WAS GIVEN AS PART OF ATHE INFORMATION WAS GIVEN AS PART OF ABUSINESS ARRANGEMENT THERE MAY BE A DUTY BUSINESS ARRANGEMENT THERE MAY BE A DUTY OF CARE OF CARE REGARDLESS OF WHETHER IT IS THE REGARDLESS OF WHETHER IT IS THE BUSINESS OF THE DEFENDANT TO GIVE ADVICEBUSINESS OF THE DEFENDANT TO GIVE ADVICE

SHADDOCK'S CASESHADDOCK'S CASE IN FACT APPROVED THE IN FACT APPROVED THE MINORITY VIEW IN MINORITY VIEW IN MLC v EVATTMLC v EVATT [L-4-260; GF-p.165][L-4-260; GF-p.165]

MINORITY IN MINORITY IN M.L.C. v EVATTM.L.C. v EVATT HELD THAT IF HELD THAT IFTHE INFORMATION WAS GIVEN AS PART OF ATHE INFORMATION WAS GIVEN AS PART OF ABUSINESS ARRANGEMENT THERE MAY BE A DUTY BUSINESS ARRANGEMENT THERE MAY BE A DUTY OF CARE OF CARE REGARDLESS OF WHETHER IT IS THE REGARDLESS OF WHETHER IT IS THE BUSINESS OF THE DEFENDANT TO GIVE ADVICEBUSINESS OF THE DEFENDANT TO GIVE ADVICE

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THE FOLLOWING TESTS MUST BE APPLIED TO DETERMINE THE FOLLOWING TESTS MUST BE APPLIED TO DETERMINE DUTY OF CARE:DUTY OF CARE:

•SPEAKER MUST OR OUGHT TO REALISE THAT S/HE IS BEING SPEAKER MUST OR OUGHT TO REALISE THAT S/HE IS BEING TRUSTEDTRUSTED BY THE RECIPIENT FOR THE ADVICE BY THE RECIPIENT FOR THE ADVICE

•SUBJECT MATTER MUST BE OF A SUBJECT MATTER MUST BE OF A SERIOUSSERIOUS OR OR BUSINESSBUSINESS NATURENATURE

•SPEAKER MUST OR OUGHT TO REALISE THAT RECIPIENT SPEAKER MUST OR OUGHT TO REALISE THAT RECIPIENT INTENDS TO ACTINTENDS TO ACT ON THE ADVICE/INFORMATION GIVEN ON THE ADVICE/INFORMATION GIVEN

•IT IS REASONABLE IN ALL THE CIRCUMSTANCES FOR THE IT IS REASONABLE IN ALL THE CIRCUMSTANCES FOR THE RECIPIENT TO RECIPIENT TO SEEK/ACCEPT/RELYSEEK/ACCEPT/RELY ON THE UTTERANCE OF ON THE UTTERANCE OF THE SPEAKERTHE SPEAKER

THE FOLLOWING TESTS MUST BE APPLIED TO DETERMINE THE FOLLOWING TESTS MUST BE APPLIED TO DETERMINE DUTY OF CARE:DUTY OF CARE:

•SPEAKER MUST OR OUGHT TO REALISE THAT S/HE IS BEING SPEAKER MUST OR OUGHT TO REALISE THAT S/HE IS BEING TRUSTEDTRUSTED BY THE RECIPIENT FOR THE ADVICE BY THE RECIPIENT FOR THE ADVICE

•SUBJECT MATTER MUST BE OF A SUBJECT MATTER MUST BE OF A SERIOUSSERIOUS OR OR BUSINESSBUSINESS NATURENATURE

•SPEAKER MUST OR OUGHT TO REALISE THAT RECIPIENT SPEAKER MUST OR OUGHT TO REALISE THAT RECIPIENT INTENDS TO ACTINTENDS TO ACT ON THE ADVICE/INFORMATION GIVEN ON THE ADVICE/INFORMATION GIVEN

•IT IS REASONABLE IN ALL THE CIRCUMSTANCES FOR THE IT IS REASONABLE IN ALL THE CIRCUMSTANCES FOR THE RECIPIENT TO RECIPIENT TO SEEK/ACCEPT/RELYSEEK/ACCEPT/RELY ON THE UTTERANCE OF ON THE UTTERANCE OF THE SPEAKERTHE SPEAKER

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THE TORT OF NEGLIGENT MISSTATEMENT DEFINITELY EXISTS AND A PERSON WHO MAKES A STATEMENT DIRECTLY OR INDIRECTLY TO ANOTHER, IN CIRCUMSTANCES WHERE S/HE KNOWS, OR SHOULD KNOW, THAT IT WILL BE RELIED UPON OWES A DUTY OF CARE TO THAT OTHER PERSON.

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QUALIFIE

D

QUALIFIE

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QUALIFIE

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QUALIFIE

D

LIMIT

ED

LIMIT

ED

LIMIT

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LIMIT

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DONOGHUEDONOGHUEvv

STEVENSONSTEVENSON

HEDLEY HEDLEY BYRNEBYRNE

vvHELLER & HELLER & PARTNERSPARTNERS

SHADDOCKSHADDOCKvv

PARRAMMATTA PARRAMMATTA CITY COUNCILCITY COUNCIL

DUTY OF CAREDUTY OF CAREDUTY OF CAREDUTY OF CARE

BASED ON THE NEIGHBOUR PRINCIPLE:

PROXIMITY + REASONABLE FORESIGHT

BASED ON THE NEIGHBOUR PRINCIPLE:

PROXIMITY + REASONABLE FORESIGHT

THE MAKER OF THE STATEMENT IS TRUSTED AND THERE IS RELIANCE UPON THAT STATEMENT

THE MAKER OF THE STATEMENT IS TRUSTED AND THERE IS RELIANCE UPON THAT STATEMENT

ANYONE WHO GIVES SERIOUS OR BUSINESS ADVICE IN CIRCUMSTANCES WHERE IT MAY BE RELIED UPON IS LIABLE

ANYONE WHO GIVES SERIOUS OR BUSINESS ADVICE IN CIRCUMSTANCES WHERE IT MAY BE RELIED UPON IS LIABLE

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PURE ECONOMIC LOSS FORPURE ECONOMIC LOSS FOR

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CALTEX OIL (AUST) PTY LTD v THE DREDGE “WILLEMSTAD CALTEX OIL (AUST) PTY LTD v THE DREDGE “WILLEMSTAD L-4-215L-4-215

CALTEX OIL (AUST) PTY LTD v THE DREDGE “WILLEMSTAD CALTEX OIL (AUST) PTY LTD v THE DREDGE “WILLEMSTAD L-4-215L-4-215

FACTS:FACTS: A PIPELINE OWNED BY A THIRD-PARTY WAS A PIPELINE OWNED BY A THIRD-PARTY WAS DAMAGED BY THE DEFENDANT’S NEGLIGENT HANDLING DAMAGED BY THE DEFENDANT’S NEGLIGENT HANDLING OF THE DREDGE “WILLEMSTAD”. THE OIL WAS NEEDED OF THE DREDGE “WILLEMSTAD”. THE OIL WAS NEEDED BY PLAINTIFF WHO HAD TO TRANSPORT THE OIL BY BY PLAINTIFF WHO HAD TO TRANSPORT THE OIL BY ALTERNATIVE MEANS AT A CONSIDERABLE EXPENSE.ALTERNATIVE MEANS AT A CONSIDERABLE EXPENSE.

FACTS:FACTS: A PIPELINE OWNED BY A THIRD-PARTY WAS A PIPELINE OWNED BY A THIRD-PARTY WAS DAMAGED BY THE DEFENDANT’S NEGLIGENT HANDLING DAMAGED BY THE DEFENDANT’S NEGLIGENT HANDLING OF THE DREDGE “WILLEMSTAD”. THE OIL WAS NEEDED OF THE DREDGE “WILLEMSTAD”. THE OIL WAS NEEDED BY PLAINTIFF WHO HAD TO TRANSPORT THE OIL BY BY PLAINTIFF WHO HAD TO TRANSPORT THE OIL BY ALTERNATIVE MEANS AT A CONSIDERABLE EXPENSE.ALTERNATIVE MEANS AT A CONSIDERABLE EXPENSE.

HELD:HELD: CALTEX OIL COULD RECOVER THE ECONOMIC CALTEX OIL COULD RECOVER THE ECONOMIC LOSS SUFFERED EVEN THOUGH THERE HAS BEEN NO LOSS SUFFERED EVEN THOUGH THERE HAS BEEN NO PERSONAL INJURY OR DAMAGE TO THE PLAINTIFF’S PERSONAL INJURY OR DAMAGE TO THE PLAINTIFF’S PROPERTY. A CLAIM SUCH AS THIS CAN ONLY BE MADE PROPERTY. A CLAIM SUCH AS THIS CAN ONLY BE MADE WHERE THE DEFENDANT KNOWS OR OUGHT TO KNOW WHERE THE DEFENDANT KNOWS OR OUGHT TO KNOW THAT A THAT A SPECIFIED PERSONSPECIFIED PERSON IS LIKELY TO SUFFER LOSS IS LIKELY TO SUFFER LOSS IF S/HE IS NEGLIGENT.IF S/HE IS NEGLIGENT.

HELD:HELD: CALTEX OIL COULD RECOVER THE ECONOMIC CALTEX OIL COULD RECOVER THE ECONOMIC LOSS SUFFERED EVEN THOUGH THERE HAS BEEN NO LOSS SUFFERED EVEN THOUGH THERE HAS BEEN NO PERSONAL INJURY OR DAMAGE TO THE PLAINTIFF’S PERSONAL INJURY OR DAMAGE TO THE PLAINTIFF’S PROPERTY. A CLAIM SUCH AS THIS CAN ONLY BE MADE PROPERTY. A CLAIM SUCH AS THIS CAN ONLY BE MADE WHERE THE DEFENDANT KNOWS OR OUGHT TO KNOW WHERE THE DEFENDANT KNOWS OR OUGHT TO KNOW THAT A THAT A SPECIFIED PERSONSPECIFIED PERSON IS LIKELY TO SUFFER LOSS IS LIKELY TO SUFFER LOSS IF S/HE IS NEGLIGENT.IF S/HE IS NEGLIGENT.

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JUNIOR BOOKS LTD v VEITCHI CO LTD JUNIOR BOOKS LTD v VEITCHI CO LTD L-4-215L-4-215

JUNIOR BOOKS LTD v VEITCHI CO LTD JUNIOR BOOKS LTD v VEITCHI CO LTD L-4-215L-4-215

FACTS:FACTS: THE DEFENDANTS LAID A DEFECTIVE FLOOR IN THE DEFENDANTS LAID A DEFECTIVE FLOOR IN THE PLAINTIFF’S FACTORY WHICH CRACKED A COUPLE THE PLAINTIFF’S FACTORY WHICH CRACKED A COUPLE OF YEARS LATER. THE COST OF REPLACEMENT OF THE OF YEARS LATER. THE COST OF REPLACEMENT OF THE ENTIRE FLOOR OF £200,00 WAS CLAIMEDENTIRE FLOOR OF £200,00 WAS CLAIMED

FACTS:FACTS: THE DEFENDANTS LAID A DEFECTIVE FLOOR IN THE DEFENDANTS LAID A DEFECTIVE FLOOR IN THE PLAINTIFF’S FACTORY WHICH CRACKED A COUPLE THE PLAINTIFF’S FACTORY WHICH CRACKED A COUPLE OF YEARS LATER. THE COST OF REPLACEMENT OF THE OF YEARS LATER. THE COST OF REPLACEMENT OF THE ENTIRE FLOOR OF £200,00 WAS CLAIMEDENTIRE FLOOR OF £200,00 WAS CLAIMED

HELD:HELD: ALTHOUGH THERE WAS NO PHYSICAL INJURY ALTHOUGH THERE WAS NO PHYSICAL INJURY SUFFERED THE DEFENDANT FLOORLAYERS WERE SUFFERED THE DEFENDANT FLOORLAYERS WERE LIABLE FOR THE ECONOMIC LOSS OF £200,00 + ANY LIABLE FOR THE ECONOMIC LOSS OF £200,00 + ANY CONSEQUENTIAL LOSS OF PROFITS DURING THE PERIOD CONSEQUENTIAL LOSS OF PROFITS DURING THE PERIOD THAT THE BUSINESS WOULD BE CLOSED FOR THE THAT THE BUSINESS WOULD BE CLOSED FOR THE RELAYING OF THE FLOOR.RELAYING OF THE FLOOR.

HELD:HELD: ALTHOUGH THERE WAS NO PHYSICAL INJURY ALTHOUGH THERE WAS NO PHYSICAL INJURY SUFFERED THE DEFENDANT FLOORLAYERS WERE SUFFERED THE DEFENDANT FLOORLAYERS WERE LIABLE FOR THE ECONOMIC LOSS OF £200,00 + ANY LIABLE FOR THE ECONOMIC LOSS OF £200,00 + ANY CONSEQUENTIAL LOSS OF PROFITS DURING THE PERIOD CONSEQUENTIAL LOSS OF PROFITS DURING THE PERIOD THAT THE BUSINESS WOULD BE CLOSED FOR THE THAT THE BUSINESS WOULD BE CLOSED FOR THE RELAYING OF THE FLOOR.RELAYING OF THE FLOOR.

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HAWKINS v CLAYTON HAWKINS v CLAYTON L-4-215L-4-215

HAWKINS v CLAYTON HAWKINS v CLAYTON L-4-215L-4-215

FACTS:FACTS: THE DEFENDANT SOLICITORS HAD DRAFTED THE DEFENDANT SOLICITORS HAD DRAFTED THE WILL OF THE DECEASED BUT FAILED TO INFORM THE WILL OF THE DECEASED BUT FAILED TO INFORM THE EXECUTOR (WHO WAS ALSO THE PRINCIPAL THE EXECUTOR (WHO WAS ALSO THE PRINCIPAL BENEFICIARY) OF THE WILL UNTIL SIX YEARS LATER. BENEFICIARY) OF THE WILL UNTIL SIX YEARS LATER. THE HOUSE LEFT TO THE PLAINTIFF HAD BECOME THE HOUSE LEFT TO THE PLAINTIFF HAD BECOME RUNDOWN AND MOST OF THE FURNITURE STOLENRUNDOWN AND MOST OF THE FURNITURE STOLEN

FACTS:FACTS: THE DEFENDANT SOLICITORS HAD DRAFTED THE DEFENDANT SOLICITORS HAD DRAFTED THE WILL OF THE DECEASED BUT FAILED TO INFORM THE WILL OF THE DECEASED BUT FAILED TO INFORM THE EXECUTOR (WHO WAS ALSO THE PRINCIPAL THE EXECUTOR (WHO WAS ALSO THE PRINCIPAL BENEFICIARY) OF THE WILL UNTIL SIX YEARS LATER. BENEFICIARY) OF THE WILL UNTIL SIX YEARS LATER. THE HOUSE LEFT TO THE PLAINTIFF HAD BECOME THE HOUSE LEFT TO THE PLAINTIFF HAD BECOME RUNDOWN AND MOST OF THE FURNITURE STOLENRUNDOWN AND MOST OF THE FURNITURE STOLEN

HELD:HELD: ALTHOUGH THERE WAS NO PHYSICAL INJURY ALTHOUGH THERE WAS NO PHYSICAL INJURY SUFFERED THE DEFENDANTS WERE LIABLE FOR THE SUFFERED THE DEFENDANTS WERE LIABLE FOR THE ECONOMIC LOSS SUSTAINED BY THE PLAINTIFFECONOMIC LOSS SUSTAINED BY THE PLAINTIFF

HELD:HELD: ALTHOUGH THERE WAS NO PHYSICAL INJURY ALTHOUGH THERE WAS NO PHYSICAL INJURY SUFFERED THE DEFENDANTS WERE LIABLE FOR THE SUFFERED THE DEFENDANTS WERE LIABLE FOR THE ECONOMIC LOSS SUSTAINED BY THE PLAINTIFFECONOMIC LOSS SUSTAINED BY THE PLAINTIFF

NOTE: NOTE: A BARRISTER IS PROTECTED BY LEGAL IMMUNITY FOR ANY WORK DONE IN COURT

NOTE: NOTE: A BARRISTER IS PROTECTED BY LEGAL IMMUNITY FOR ANY WORK DONE IN COURT

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END OF LECTURES END OF LECTURES ON LAW OF TORTSON LAW OF TORTS

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HOW TO ESTABLISH LIABILITY UNDER THE GENERAL LAW OF HOW TO ESTABLISH LIABILITY UNDER THE GENERAL LAW OF NEGLIGENCENEGLIGENCE


IS THERE A DUTY OF CARE OWED?IS THERE A DUTY OF CARE OWED?IS THERE A DUTY OF CARE OWED?IS THERE A DUTY OF CARE OWED?

Is there a legally recognised relationship between the plaintiff and the defendant that brings them within the "neighbour principle" discussed in Donogue v Stevenson?

Here discuss briefly the facts of Donogue v Stevenson and the statement mentioning the "neighbour principle"

Explain too that the scope of the "neighbour principle" is limited by the test of proximity which in turn depends on the test of reasonable foresight.

Is there a legally recognised relationship between the plaintiff and the defendant that brings them within the "neighbour principle" discussed in Donogue v Stevenson?

Here discuss briefly the facts of Donogue v Stevenson and the statement mentioning the "neighbour principle"

Explain too that the scope of the "neighbour principle" is limited by the test of proximity which in turn depends on the test of reasonable foresight.

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HAS THE STANDARD OF CARE BEEN BREACHED?HAS THE STANDARD OF CARE BEEN BREACHED?HAS THE STANDARD OF CARE BEEN BREACHED?HAS THE STANDARD OF CARE BEEN BREACHED?



Standard of care is measured according to the standard that would be observed by a reasonable person.

Standard is not an absolute standard to take care against all risks (discuss Glasgow Corp. v Muir) but only against those that are highly probable; possible; or where there is a material risk. Does not include damage that may be foreseeable but is highly improbable (discuss Bolton v Stone).

Standard is also dependent on other attributes of the plaintiff [see Paris v Stephen Borough Council L-4-100]

Standard of care is measured according to the standard that would be observed by a reasonable person.

Standard is not an absolute standard to take care against all risks (discuss Glasgow Corp. v Muir) but only against those that are highly probable; possible; or where there is a material risk. Does not include damage that may be foreseeable but is highly improbable (discuss Bolton v Stone).

Standard is also dependent on other attributes of the plaintiff [see Paris v Stephen Borough Council L-4-100]

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HAS DAMAGE RESULTED FROM THE BREACH OF HAS DAMAGE RESULTED FROM THE BREACH OF THE STANDARD OF CARE?THE STANDARD OF CARE?

HAS DAMAGE RESULTED FROM THE BREACH OF HAS DAMAGE RESULTED FROM THE BREACH OF THE STANDARD OF CARE?THE STANDARD OF CARE?



Prove that there was causation - a connection between the breach in the standard of care and the damage suffered.

Test used is the "but for" test. Discuss Barnett v Chelsea Hospital or Cork v Kirby MacLean Ltd or Yates v Jones.

Prove that there was causation - a connection between the breach in the standard of care and the damage suffered.

Test used is the "but for" test. Discuss Barnett v Chelsea Hospital or Cork v Kirby MacLean Ltd or Yates v Jones.

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IS THE DAMAGE SUFFERED TOO REMOTE?IS THE DAMAGE SUFFERED TOO REMOTE?IS THE DAMAGE SUFFERED TOO REMOTE?IS THE DAMAGE SUFFERED TOO REMOTE?

Here discuss that according to Wagon Mound No:1 only type/kind of damage that is reasonably foreseeable will be allowed.

The degree of foreseeability of that type/kind of damage is limited by Wagon Mound No: 2 which states that the risk of damage should be real and not far fetched and could have been avoided by a reasonable person without too much expense or effort.

Here discuss that according to Wagon Mound No:1 only type/kind of damage that is reasonably foreseeable will be allowed.

The degree of foreseeability of that type/kind of damage is limited by Wagon Mound No: 2 which states that the risk of damage should be real and not far fetched and could have been avoided by a reasonable person without too much expense or effort.

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ARE THERE ANY DEFENCES AVAILABLE TO THE ARE THERE ANY DEFENCES AVAILABLE TO THE DEFENDANT?DEFENDANT?

ARE THERE ANY DEFENCES AVAILABLE TO THE ARE THERE ANY DEFENCES AVAILABLE TO THE DEFENDANT?DEFENDANT?



Here discuss such defences as contributory negligence and volunti non fit injuria if applicable.

Here discuss such defences as contributory negligence and volunti non fit injuria if applicable.

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SOME ADVICESOME ADVICE

PLEASE READ THE INSTRUCTIONS CAREFULLY

NO REFERENCING REQUIRED IN EXAMS

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AUTHORITIES SHOULD NOT BE AUTHORITIES SHOULD NOT BE MERELY CITED BUT DISCUSSEDMERELY CITED BUT DISCUSSED

The case example here is The case example here is Carlill v Carbolic Carlill v Carbolic Smoke Ball CoSmoke Ball Co. case. case

The case applicable here is The case applicable here is Carlill v Carlill v Carbolic Smoke Ball CoCarbolic Smoke Ball Co.. case where a lady case where a lady responded to an advertisement in a responded to an advertisement in a newspaper which stated that if any person newspaper which stated that if any person were to take the smoke ball over a fixed were to take the smoke ball over a fixed period of time they would be cured of the period of time they would be cured of the flu. To show their sincerity in this matter flu. To show their sincerity in this matter the advertisers deposited £100 in a bank. the advertisers deposited £100 in a bank. The court held that in this case ................The court held that in this case ................

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•Make firm reasonable presumptions based on the Make firm reasonable presumptions based on the facts of a problem and not all possible assumptionsfacts of a problem and not all possible assumptions

•Make firm conclusionsMake firm conclusions

•Names of cases cited should be either Names of cases cited should be either highlightedhighlighted or or underlinedunderlined

•Start each new point/argument on a new Start each new point/argument on a new paragraphparagraph

•Every new section and question should be started Every new section and question should be started on a new pageon a new page

•Do not discuss non-issues - confine yourself to the Do not discuss non-issues - confine yourself to the issues - do not discuss the obviousissues - do not discuss the obvious

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REMEMBERREMEMBER

Examiners will be looking for Examiners will be looking for

•ISSUESISSUES, whether legal concepts introduced have , whether legal concepts introduced have been defined/explainedbeen defined/explained

•LEGAL ARGUMENTSLEGAL ARGUMENTS, ,

•LEGAL AUTHORITIESLEGAL AUTHORITIES in support of those in support of those arguments arguments

•FIRM CONCLUSIONSFIRM CONCLUSIONS

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TORT LAWTORT LAW

General NegligenceGeneral NegligenceDuty of CareDuty of CareStandard of CareStandard of CareCausationCausation

Defences – Defences – Contributory Negligence Contributory Negligence

Remoteness of DamagesRemoteness of Damages

TORT LAWTORT LAW

General NegligenceGeneral NegligenceDuty of CareDuty of CareStandard of CareStandard of CareCausationCausation

Defences – Defences – Contributory Negligence Contributory Negligence

Remoteness of DamagesRemoteness of Damages

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Donoghue v StevensonDonoghue v StevensonBolton v StoneBolton v StoneWagon Mound I & IIWagon Mound I & IIParis v Stephen Borough Paris v Stephen Borough CouncilCouncilBarnett v Chelsea HospitalBarnett v Chelsea Hospital Glasgow Corp. v MuirGlasgow Corp. v MuirNagle v Rottnest Island Nagle v Rottnest Island AuthorityAuthority Mercer v Commissioner For Mercer v Commissioner For Transport & Tramways (NSW) Transport & Tramways (NSW)

NOTE - LIST IS NOT NOTE - LIST IS NOT EXHAUSTIVE!EXHAUSTIVE!

Donoghue v StevensonDonoghue v StevensonBolton v StoneBolton v StoneWagon Mound I & IIWagon Mound I & IIParis v Stephen Borough Paris v Stephen Borough CouncilCouncilBarnett v Chelsea HospitalBarnett v Chelsea Hospital Glasgow Corp. v MuirGlasgow Corp. v MuirNagle v Rottnest Island Nagle v Rottnest Island AuthorityAuthority Mercer v Commissioner For Mercer v Commissioner For Transport & Tramways (NSW) Transport & Tramways (NSW)

NOTE - LIST IS NOT NOTE - LIST IS NOT EXHAUSTIVE!EXHAUSTIVE!

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END OF END OF COMMERCIAL LAW COMMERCIAL LAW

LECTURES FOR LECTURES FOR THIS SEMESTERTHIS SEMESTER

GOODBYE AND GOODBYE AND GOOD LUCK GOOD LUCK

IN YOUR IN YOUR EXAMINATIONSEXAMINATIONS

Documents

HOW LIABILITY IS DETERMINED FOR NEGLIGENCE