• Civil wrong other than a breach of contract
• Causes personal injury, property damage or financial loss • Innocent party usually claims damages
• Purpose - justice to be achieved by transferring kiss I'm the victim to wrongdoer • Principle - each citizen should take responsibility for consequences of his/her actions
Types of civil wrongs (torts)?
• Compensation is the chief remedy sought
• Nuisance, defamation, negligence, trespass, liability for dangerous animals • Nuisance - something unauthorised that is obnoxious or injurious to community at large or to an individual, especially in relation to his/her ownership of property • Trespass - direct an unlawful interference with possession of person, property or land, regardless or intention of trespasser
Tortes verses contract law
• Tort law - special relationship other than a contract which forms the basis of civil claims (e.g. Patient/doctor, parent/child) • Contract law - legally binding agreement forms the basis of the civil claim • For a tort to be successful - plaintiff must prove existence of certain elements that give rise to a special relationship (e.g. Teacher/student, employer/employee) • Same situation (e.g. Motor vehicle accident) can give rise to both a criminal court and a civil court action • Criminal negligence - a persons action or omission is so extreme that they are charged with a criminal offence • Almost knowingly causing them harm to victim or accident • Must have known that someone else was likely to be injured
Part B - civil wrongs - Negligence
Why are negligence laws needed?
• More negligence cases are brought before the Queensland courts than any other type of civil action • Person has suffered personal injury, property damage or economic loss • Law of negligence - requires injured person to find someone to blame for accident; courts have power to order someone at fault to pay compensation for injury, loss or damage to innocent party • Apportioning blame to person at fault is fairest way if compensating people for their loss; acts as a deterrent against negligent behaviour in community
Elements of proof
• Breach of a person's/organisation's duty to take reasonable care in circumstances which causes damage to another person/organisation • Balance of probabilities
• Defendant must owe duty of care to plaintiff
• Defendant must breach this duty by failing to meet required standard of care • Damage to plaintiff must be caused by breach of duty of care • Vicarious liability - higher authority may be liable for damages, even though it has not been personally negligent
Duty of care
• A person is required to fulfill a particular standard of conduct, thus having a duty to take reasonable care bit to cause harm to others. • Must consider the relationship between the parties - "neighbour principle" • Neighbor principle - test for establishing whether there is a duty of care owed by one person to another • Tests:
• Proximity requirement
• Foreseeability principle
• Established by Donoghue v Stevenson
|Proximity requirement |Foreseeable principle | |- persons who was so closely and directly affected by my act |- what a reasonable person in shoes of defendant should have been able to | | |foresee would be the result of his or her actions | |3 types of proximity | | |- physical (space & time)...