1. The purpose and intent of The Wrongs Act 1958 (Vic) as it relates to torts
The Wrong Act 1958 is a law most closely related to people's daily life, that means it is a legislation dedicated to set lawful regulation when someone in Victoria suffers from injuries of kind, he or she shall be lawfully compensated for his injury that may related to financial losses. After hundreds of years of development, Anglo-American tort law has formed a very sound legal system with negligent torts occupies a very important position in Anglo-American tort law. Negligence infringement is the core areas of The Wrong Act 1958 as well as the main forms of infringement.
Negligence tort is a risky action causing unreasonable harm to other people. It is generally believed that causes of action of a negligence including four constituent elements: the existence of obligations, the breach action, causation and damages1. The last element means, in the absence of actual damages in a case, the plaintiff can not ask compensation for nominal damages to maintain its legal right against the risk of negligence of others. Negligence tort action requires a precondition of some kind of actual damage.
In defining whether an act constitutes negligence, in addition to actual damage, there should have one more condition: the perpetrator has duty of care2. Only when a perpetrator has a duty of care, and the perpetrator's behavior does not meet the required standards of conduct and breaching the obligation, negligence is constituted. The perpetrator will then be responsible for respective party. It is clear that duty of care research is necessary in negligence cases.
Modern negligence tort law was originated in the early 19th century. However, common law has officially formed concept of negligence until 1932 in the United Kingdom after Donoghue V. Stevenson case. The duty of care principle was also proposed at that time. Judge Atkin used to say in Donoghue V ．Stevenson case, negligence is defendant breaching the duty of care owning to the plaintiff.
In The Wrong Act 1958, the perpetrator is not liable for negligence unless the resulting damage or negligence violated the duty of care to the plaintiff. If someone could reasonably foresee that their behavior may cause unreasonable harm to others, then in most cases he owns a duty of care to parties likely to be affected. Therefore, the so-called duty of care is a responsibility of perpetrator imposed by law. When facing certain situation, the perpetrator should behave in a specific way; otherwise, the perpetrator shall be liable for the victim if the respective party suffer from some sort of irrational risk due to the perpetrator.
2. The differences, anomalies and inconsistencies create problems due to the conflicting provisions in the Wrongs Act 1958 and personal injury Acts
Violation of the reasonable person standard
In determining whether a person has a duty of care act, the behavior resulting damage due to the perpetrator to the respective party should be foreseen. The standard of foreseeability is defined based on reasonable person standard, which uses objective criteria for judging. It determines the reasonable foreseeability of risks from the perspective of average person. According to section 285 of American Restatement of Torts (second), a reasonable person's standard of conduct at least can be determined in one of the following four ways: (1) through the relevant legal requirements3. Jury of the case can judge according to a particular rule in determining whether the conduct of a particular defendant in a particular case is reasonable; (2) reasonable person standard of conduct established by judicial precedents; (3) legislature agencies enact the relevant law to determine the standard of conduct of reasonable person; (4) even if certain law or regulation does not expressly or impliedly establishing civil liability standard of care, as long as the law provides...
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