Torts Notes

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Torts Notes – Negligence
Contents
1Preamble2
1.1Concurrent Wrongdoers2
1.2Death2
1.3Apologists2
1.4Vicarious liability/non-delegable duties3
2Duty of care5
2.1Immunities5
2.2Omissions/failure to control third party6
2.3Atypical Plaintiffs6
2.4Unborn Child6
2.5Mental Harm/Nervous Shock7
2.6Statutory Authorities8
2.7Pure Economic Loss/Negligent Misstatement11
3Breach of Duty12
3.1Section 5C12
3.2Obvious risks12
4Causation13
4.1Res ipsa loquitur13
4.2Novus actus interveniens13
4.3Causation in medical “failure to warn” cases14
4.4Multiple causes of injury/death14
5Remoteness15
5.1Eggshell skull rule15
6Defences16
6.1Professional working within professional standards16
6.2Contributory negligence16
6.3Intoxication17
6.4Volenti non fit injuria (common law defence of assumption of risk)17 6.5Obvious risk17
6.6Inherent risk18
6.7Recreational activity18
6.8Risk warning19
6.9Risk waiver/exclusion clauses19
6.10Illegality19
7Worker’s Compensation20
8Motor Accidents21

Preamble
Bring action within the CLA: S3B CLA
Concurrent Wrongdoers
All defendants may be served: Law Reform Miscellaneous Provisions Act 1944 (LRMPA) s2A(1)a)
Defendants may be tried together: LRMPA s2A(1)e)
Plaintiff must serve all potential concurrent wrongdoers: CLA s35A
Defendants pay proportion of damages as proportionate to how their negligence caused damage: CLA s35(1)a)
Concurrent tortfeasors are jointly liable except in cases of personal injury: CLA s34(1)a) Death
Cause of action survives and may be brought by the deceased’s estate (Law Reform (Miscellaneous Provisions) Act ‘44 s2). Relatives may claim (spouse, parents, children, step people, half people) (Compensation of Relatives Act 1897 s4). Apologists

An apology does not constitute an admission of fault or liability (ss69(1)a)

Vicarious liability/non-delegable duties
A company may be vicariously liable if (NSW v Ibbett):
They have an employment or agentic relationship with D
A tort was committed
The tort was committed in the course of (c) and D’s relationship (i.e. in the course of employment) If a (c) is found vicariously liable, this is the same as if they were D (s3C). Workers/Employers

An employer employee relationship is defined in the common law (Hollis v Vabu) [cyclist deliverers, no employment contract, uniforms, etc; found: was a worker) via:
Uniform
Pay (wage or commission, retainer, invoice)
Super
Whether tools are supplied and maintained by the employer
If P can sub-contract
Who is in the controlling position (does the employer or the employee specify how and when the work is done)
Tax form
Ability for D to engage in other B activities
Anything that D does during the course of their employment may expose (c) to vicarious liability unless they act is:
In passion and/or resentment (Deatons v Flew)
Unconnected to employment (Joel v Morrison)
Employer prohibition limits the sphere of employment (Bugge v Brown) [fire restricted, cooking and cooked meals allowed, fire spread; held: prohibition did not limit the sphere of employment]
Limits of employer authorisation (Ilkiw v Samuels) [Bus conductor grabbed steering wheel of bus; held: he was not authorised to do so]
Criminal acts of employees (Morris v CW Martin)
Agent/Principle
In some cases a principle may be liable for the actions of his agent:
Owner of a motor vehicle and driver (Motor Accidents Act s53) (Soblusky v Egan)
Owner must request that driver use the vehicle
The owner must have a vested interest in the vehicle being driven
Does not extend to other types of vehicles (Scott v Davis) [airoplanes]
When the principle holds out the agent (Colonial v PCCAC)
Where principle states that agent has authority, he also has liability Non delegable duties
Non delegable duties are treated as vicarious liability/other duty of...
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