Foundations of Australian Law

Fourth Edition

Copyright © 2013 Tilde Publishing and Distribution

Chapter 6The tort of negligence

Chapter overview

This chapter looks at the concepts of Defining tort Negligence Elements of negligence Common law principles Statutory provisions

Defining tort

• Four general areas negligence defamation nuisance trespass

• Plaintiff person experiencing loss/injury

• Tortfeasor person who commits tort causing damage to

plaintiff or their property

Negligence

• Development of the tort of negligence

• Neighbour principle

Negligence concept summaryFigure 6.1

Elements of negligence

• Negligence: Figure 6.2

Common law principles

• Duty of care Reasonable foreseeability Vulnerability Duty of care and the positive infliction of

physical injury Duty of care and liability for omission to act

... Duty of care in cases of pure

economic loss- Economic loss flowing from damaged

caused by negligent misstatements- Economic loss flowing from damage to

property of a third party- Economic loss flowing from damage

caused by professional negligence- Economic loss arising from a defective

product or structure Re Ipsa Ioquitur – Speaks for itself

...

• Breach of duty of care• Standard of care• Breach of the standard of care

• Loss or injury• Causation• Remoteness

• Remedies for negligence• Special damages• General damages

...

• Defences for negligence Contributory negligence Volenti non fit injuria

- Section 5K definitions- Section 5L definitions

Vicarious liability

1. Parents are vicariously liable for the actions of their children where those actions cause harm or damage;

2. Contractors are vicariously liable for the actions of their sub-contractors; and

3. Employers are vicariously liable for the actions of their employees.

Limitation period

• See case example: Stingel v Clark [2006] HCA 37; [2006] 228 ALR 229; [2006] 80 ALJR 1339 (20 July 2006)

Statutory provisions

• Negligence law originally developed through common law

• More recently states and territories have passed Civil Liabilities and Wrongs Acts

see Table 6.2

• Enacted to codify civil law principles

Statutory provisions

• Duty of care• Causation• Assumption of

risk• Professional

negligence• Volunteers• Trade practices

• Contributory negligence

• Intoxication• Mental harm• Public authorities• Damages• Legal costs

Chapter review

In this chapter you have looked at Defining tort Negligence Elements of negligence Common law principles Statutory provisions