Torts Law (Negligence, Financial Harm and Consequences)

Question 1

What is a tort of negligence?

Answer 1

When the defendant owes the plaintiff a duty of care, but breaches the duty of care causing the plaintiff to suffer reasonably foreseeable harm.

Question 2

What are some examples of duty of care relationships?

Answer 2

• Motorists / other road users.
• Doctors / patients.
• Solicitors / clients.
• Manufacturers / consumers.
• Occupiers / visitors.
• Architects / clients.
• Agents / principal.
• Directors / company.
• Employers / employees.

Question 3

The defendant will have breached their duty of care if:

Answer 3

• The risk of harm was foreseeable and significant.
• They failed to do what a reasonable person would have done in the circumstances.

Question 4

What is the reasonable person test?

Answer 4

Proclaims that a defendant does not breach their duty of care unless the defendant fails to do what a reasonable person would have done in the circumstances.

Question 5

What are the three requirements for a person to breach their duty?

Answer 5

1. The risk was foreseeable.
2. The risk was not insignificant.
3. In the circumstances, a reasonable person in the person’s position would have taken those precautions.

Question 6

What are the two tests required for the court to determine a breach of duty?

Answer 6

1. Factual causation test.
2. Scope of liability test.

Question 7

What is the factual causation test?

Answer 7

Was the breach of duty a necessary condition of the occurrence of the harm. Did the careless act directly or indirectly cause the harm suffered by the plaintiff?

Question 8

What is the scope of liability test?

Answer 8

If the harm suffered by the plaintiff was not reasonably foreseeable, then the defendant will not be liable for that harm.

Question 9

What are two defences to a tort of negligence?

Answer 9

1. Voluntary assumption of risk.
2. Contributory negligence.

Question 10

What is voluntary assumption of risk?

Answer 10

A defence where the plaintiff had full knowledge and appreciation of the risk, and still freely and willingly agreed to the precise risk that eventuated.

Question 11

What is contributory negligence?

Answer 11

If it can be established that the plaintiff contributed in some way to their own loss or injury, liability will be apportioned between the defendant and the plaintiff.