Torts exam notes

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TORTS

Table of Contents
Breach of Duty 3
General Principles for Establish a Breach of Duty 3
The Calculus of Negligence 4
Who is the Reasonable Person? 9
Causation 13
Factual Causation under the Common Law 13
Factual Causation under Statute 16
Novus Actus Interveniens 18
Successive Causes 20
Exceptional Cases 21
Remoteness 24
Foreseeability of Damage 24
Kind of Injury and Manner of its Occurrence 25
Eggshell Skull Rule 26
Concurrent Liability 28
Vicarious Liability 28
Non-delegable Duty 33
Proportionate Liability 35
Breach of Statutory Duty 38
Defences to Negligence 42
Contributory Negligence 42
Voluntary Assumption of Risk 47
Illegality 50
Dangerous Recreational Activity 52

Damages 57
Basic Principles in Compensatory Damages 57
Damages for Economic Loss 58
Damages for Non-Economic Loss 66
Theoretical Readings 71
Bismark & Paterson, ‘No Fault Compensation in New Zealand’ 71
Vines, ‘Tort Reform, Insurance and Responsibility’ 72
Luntz, ‘Reform of the Law of Negligence: Wrong Questions – Wrong Answers’ 73
Abel, ‘A Critique of Torts' 73
Wright, ‘National Trends in Personal Injury Litigation: Before and After Ipp’ 75
Grady, ‘Untaken Precautions’ 76
Graycar, ‘Love’s Labour’s Cost: The High Court Decision in Van Gervan v Venton’ 76
Waldron, ‘Moments of Carelessness and Massive Loss’ 78

Breach of Duty
Required reading

Carolyn Sappideen, Prue Vines and Penelope Watson, Torts: Commentary & Materials (Lawbook Co, 11th ed, 2012) pp. 377-422 [10.05-10.155]; pp. 444-469 [10.220-10.270]

Introduction (pp. 378-379)
To establish a breach of duty, the plaintiff must prove that the defendant’s conduct fell below the required standard of care.
In Blyth v Birmingham Waterworks Co,1 Alderson B said: ‘negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and

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