TORTS Flashcards
(24 cards)
What are the key elements required to establish liability for negligence?
To establish liability for negligence, the plaintiff must demonstrate three essential elements:
Duty of Care: The defendant owed a legal duty to the plaintiff to exercise reasonable care.
Breach of Duty: The defendant’s actions fell below the standard of care expected of a reasonable person in similar circumstances.
Causation: The defendant’s breach of duty directly caused the plaintiff’s injury.
Note: the injury must be reasonably foreseeable and not too remote from the breach of duty.
What is the standard of care expected in a negligence claim?
The standard of care is that of a reasonable person in the defendant’s position. It considers what a hypothetical, prudent person would have done in the same circumstances. This is an objective test that does not take into account the defendant’s individual characteristics or capabilities.
How is the “calculus of negligence” used to determine breach of duty?
The “calculus of negligence” is used to determine whether a reasonable person would have taken precautions against a risk of harm. The court considers the following factors:
Probability: The probability that the harm would occur if care were not taken.
Seriousness: The likely seriousness of the harm.
Burden: The burden (expense, difficulty, and inconvenience) of taking precautions.
Social Utility: The social utility of the activity that creates the risk of harm (not always relevant).
What are “obvious risks” and how do they affect liability?
An “obvious risk” is a risk that a reasonable person in the plaintiff’s position would have been aware of. Generally, there is no duty to warn of obvious risks. Exceptions:
- The plaintiff specifically requests information about the risk.
- A written law requires the defendant to provide a warning.
- The defendant is a professional, and the risk involves potential death or personal injury related to their professional service.
Can a defendant be held liable for “inherent risks”?
An “inherent risk” is a risk that cannot be avoided even with reasonable care and skill. Generally, there is no liability for harm arising from the materialisation of an inherent risk. However, this does not exclude liability for failing to warn of the inherent risk if a duty to warn exists.
What is the standard of care for professionals?
Professionals, such as doctors, lawyers, and engineers, are held to a higher standard of care than ordinary individuals. They are expected to act in a manner that is widely accepted in Australia by their peers as competent professional practice. However, the court can disregard a professional opinion if it is considered irrational.
What is the two-stage approach to causation under the Civil Liability Act?
The Civil Liability Act employs a two-stage approach to determine causation:
Factual Causation: Was the defendant’s negligence a necessary condition of the occurrence of the harm? This is determined using the “but for” test.
Scope of Liability: Is it appropriate for the scope of the defendant’s liability to extend to the harm caused? This is a normative question considering whether the defendant should bear legal responsibility for the plaintiff’s loss.
What are the key issues relating to Mental Harm?
The key issues relating to mental harm are:
- Limited recognition of liability for mental harm at common law.
- Distinction between ‘pure mental harm’ (not a consequence of physical injury) and ‘consequential mental harm’ (results from physical injury) for duty of care considerations.
- ‘Mental harm’ is defined as impairment of a person’s mental condition, requiring a recognisable psychiatric illness.
- Transient emotional reactions like disappointment, distress, sorrow, grief, etc., are not considered ‘mental harm’.
What is the test for foreseeability in pure mental harm cases?
For pure mental harm, it must be reasonably foreseeable that a person of normal fortitude would suffer mental harm in the circumstances. Exception: If the defendant knew or ought to have known that the plaintiff was susceptible to mental harm, foreseeability can be established even if a person of normal fortitude wouldn’t have suffered harm.
What are the factors to consider in establishing a duty of care for pure mental harm?
In addition to foreseeability, the court considers the following factors when determining whether a duty of care exists for pure mental harm:
- Sudden shock.
- Whether the plaintiff witnessed, at the scene, a person being injured, killed, or endangered.
- Relationship between the plaintiff and the person injured, killed, or endangered.
- Pre-existing relationship between the plaintiff and the defendant.
What are the elements of contributory negligence?
To establish contributory negligence, the defendant must prove:
1. The plaintiff failed to meet the standard of care of a reasonable person in their position.
2. The plaintiff’s negligence contributed to the foreseeable loss.
What are the effects of contributory negligence?
If contributory negligence is established, the court will reduce the plaintiff’s damages by an amount that is considered just and equitable, having regard to the plaintiff’s share in the responsibility for the damage. The apportionment can be up to 100%, meaning the plaintiff may receive no damages.
How does intoxication affect negligence claims under the Civil Liability Act?
- Plaintiff Intoxicated: There is a presumption of contributory negligence, and the plaintiff must prove their intoxication did not contribute to the harm. Unless rebutted, a minimum reduction of 25% in damages applies (50% if driving).
- Defendant Intoxicated: No specific defence, but a mandatory reduction of 25% in damages applies (50% if driving).
What are the elements of voluntary assumption of risk?
- Freely and voluntarily accepted the risk.
- Knew the full nature and extent of the risk.
- Actually perceived the risk of danger.
What is the effect of a risk warning for recreational activities?
If a risk warning is given for a recreational activity, the defendant does not owe a duty of care to the plaintiff in respect of the risks covered by the warning. The warning must be given in a manner reasonably likely to result in people being warned before engaging in the activity. The defendant does not need to prove that the plaintiff received, understood, or was capable of understanding the warning.
When does the defence of dangerous recreational activities apply?
The defence of dangerous recreational activities applies when:
- The plaintiff was engaged in a recreational activity as defined in s 5K of the CLA.
- The recreational activity was a dangerous recreational activity, meaning it involved a significant risk of physical harm.
- The harm suffered by the plaintiff was a result of the materialisation of an obvious risk of that dangerous recreational activity.
What are the key considerations in negligence claims against public authorities?
Negligence claims against public authorities raise specific issues:
Statutory Authority Definition: A body authorised by parliament to carry out duties and powers in the performance of a public function.
Two Liability Situations:
1. Omission to act: Failure to exercise a statutory power or duty, leading to negligence.
2. Negligent act: An act carried out negligently by the authority.
Policy Considerations: Courts are hesitant to hold authorities liable due to policy considerations, including limited resources and public policy objectives.
What is the threshold test for liability of public authorities for failure to exercise a function?
Under s 44 of the CLA, a public authority is not liable for failing to exercise a function to prohibit or regulate an activity unless the plaintiff can demonstrate they had “public law standing” to bring the action, meaning the authority could have been required to exercise the function in proceedings instituted by the plaintiff.
What is the “road authority defence” under the Civil Liability Act?
Under s 45 of the CLA, a road authority has a complete defence for nonfeasance (failure to act), except where the authority is actually aware of a particular risk that materialised and caused harm. This means a road authority is generally not liable for failing to repair or maintain a road, even if that failure results in an accident, unless they were specifically aware of the hazard that caused the accident.
What is vicarious liability?
Vicarious liability is a legal doctrine that holds an employer liable for the torts of their employees committed in the course of their employment. This means the employer is responsible for the employee’s wrongful actions even though the employer did not directly cause the harm.
What are the requirements for vicarious liability in employment?
To establish vicarious liability in employment, the following must be proven:
- Existence of Employment Relationship: The tortfeasor must be an employee of the defendant, not an independent contractor.
- Tort Committed in the Course of Employment: The employee’s tort must have been committed within the scope of their employment, including:
- Authorised acts.
- Acts incidental to authorised acts.
- Acts closely connected to authorised tasks.
What is a non-delegable duty of care?
A non-delegable duty of care is a duty that cannot be delegated to another party, even an independent contractor. This means the principal remains liable for any harm caused by the delegate’s negligence in carrying out the duty.
When does a non-delegable duty of care arise?
A non-delegable duty of care arises in situations where:
- The defendant has control and responsibility regarding the safety of the person or property of others.
- The plaintiff is especially dependent or vulnerable.
- The relationship falls within a recognised category for a non-delegable duty, such as:
- Hospital and patient.
- School and pupil.
- Employer and employee.
- Occupier and entrant (in relation to hazardous activities).
