Week 8- LAWS1104

• Tort

  A civil wrong. All torts are civil wrongs, not all civil wrongs are torts. A tort is a wrong because it's a departure from what the law determines should happen.
• Differences between torts and crimes

  • Law of torts is part of private law, public law includes criminal law
  • Some torts can also be crimes
  • Aim of criminal law is to punish the defendant and deter crime, aim of torts is to provide the plaintiff with compensation
• Compensation in tort law


  Aim is to put the plaintiff back into their pre-tort position. Not always possible, e.g. person who has lost a leg in a car accident. The law can't give them back their leg, but can provide financial compensation for their loss of earning capacity and medical expenses.
• Negligence


  A failure to exercise reasonable care and skill. Not about intention, whether you meant to cause injury or not isn't relevant. Negligence is a form of carelessness that is recognised by the law and carries legal consequences. It can involve the defendant doing something carelessly or not doing something that they should have done.
• Basics for a negligence action

  • Plaintiff - the person who brings the case
  • Defendant - the party who defends the claim
  • Appellant and respondent
  • Plaintiff must prove all the factual elements of their case, must prove that the defendant was negligent and that the negligence caused the injury
  • Defendant must prove the elements of any defence they wish to use
  • Burden of proof = the balance of probabilities
• Elements of a negligence action

  • Duty of care - Did the defendant owe the plaintiff a duty of care?
  • Breach of duty - Did the defendant breach the duty of care which was owed to the plaintiff?
  • Damage - Did the breach cause the damage?
• Duty of care situations

  • Established duty categories
  • Novel categories
• Examples of established duty categories

  • Doctor - patient
  • Solicitor - client
  • Accountant - client
  • Driver - passenger
  • Driver - other road user / pedestrian
  • Employer - employee
  • Occupier of premises - entrant
• Novel duty relationships

  The neighbour principle tells us that a duty of care can arise in any circumstances where the defendant's activity posed a risk of injury to others, whether or not the law had imposed a duty in that kind of case before. Essentially a test for reasonable foreseeability of harm. Was it reasonably foreseeable that the plaintiff or a class of persons of which the plaintiff is a member will suffer harm?
• Salient features for novel duty relationships


  • Reasonable foreseeability
  • Control
  • Vulnerability
  • Knowledge
• Where a physical injury has resulted from a positive act, it is accepted that if the reasonable foreseeability test is satisfied, the elusive additional component of a duty of care will generally exist
• Pure economic loss

  Economic loss that is not a consequence of physical damage. E.g. 1: You own a shop, you are injured in an accident, you cannot work, that's consequential economic loss. E.g. 2: There's an accident right outside your shop that prevents customers accessing your shop, the loss you suffer is pure economic loss - you have not suffered any physical injury or property damage.
• Salient features considered in Perre v Apand

  • Reasonable foreseeability
  • Indeterminate liability
  • Autonomy: Would the imposition of a duty of care impose an unreasonable burden on the autonomy of the defendant?
  • Vulnerability
  • Knowledge: Did the defendant know that its conduct could cause harm to individuals such as the plaintiffs?
• Conditions for a duty of care for negligent misstatements

  • The advice was given about a serious or business matter
  • The person giving the advice knew or should have known that they were being relied upon to give correct advice
  • It was reasonable for the other person to have relied on the advice