Commercial Law

Powerful Essays
Module 2

Introduction

Negligence is one of many types of torts.

A tort is a civil wrong that is outside of contract law and arises out of recognition that a person is responsible for their acts and omissions when dealing with others.

The term 'tort' refers to a number of different laws such as: • nuisance,

• trespass and

• assault

Torts generally compensate the individual for personal loss or attacks on reputation, where the loss was caused by another person.

Tort has as its basis common law. Negligence is now the dominant tort and the focus of this Module.

Legislation

Consumer legislation contained in the Trade Practices Act 1974 (Cth), the Sale of Goods Acts and The Fair Trading Acts (various states legislation) contain consumer protection legislation which allows the consumer in some circumstances to take legal action under that appropriate legislation, rather than using the common law negligence principles.

Elements of negligence

Definition

Negligence: Conduct that falls below the standard of care demanded for the protection of others against the unreasonable risk of harm.

A plaintiff who commences an action in negligence must prove a number of factors exist to be successful in that negligence action. These are: • Duty of care

• Standard of care

• Damages

Duty of care

Case law: Donoghue (or McAlister) v Stevenson [1932]

The duty of care rule was established in the landmark case of Donoghue v Stevenson, a House of Lords decision in 1932.

In this case Lord Atkin formulated the "neighbour test" to determine whether a duty of care was owed by one party to another.

This test established that a person must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.

Lord Atkins put forward an objective question:

"Who is my neighbour?"

Lord Atkins said the answer was;

"Anyone so directly affected by

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