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To be alive at all involves some risk. Harold Macmillan

2. What is a tort?. A tort is a civil wrong (other than a breach of contract).The word tort' is taken from the French word meaning wrong'.The law of torts affords a remedy (usually monetary) for someone injured by the act or omission of another.. 3. Examples of torts. NegligenceConduct causin

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To be alive at all involves some risk. Harold Macmillan

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    1. 1 To be alive at all involves some risk. Harold Macmillan

    2. 2 What is a tort?

    3. 3 Examples of torts

    4. 4 Examples of torts

    5. 5 Intentional or direct torts

    6. 6 Intentional or direct torts

    7. 7 Defences to intentional or direct torts

    8. 8 Defences to intentional or direct torts

    9. 9 Torts and contracts

    10. 10 Torts and crimes

    11. 11 The modern tort of negligence

    12. 12 Donoghue v Stevenson [1932] AC 562

    13. 13 The neighbour principle

    14. 14 Negligence and harm Careless acts do not always amount to negligence In negligence, a person is only liable for harm that is the foreseeable consequence of their actions, that is, failure to exercise reasonable care and skill

    15. 15 Negligence defined Negligence is the omission to do something which a reasonable person would do, or doing something which a prudent and reasonable person would not do

    16. 16 Negligence

    17. 17 Duty of care

    18. 18 Positive action at common law At common law, there will be no breach of duty where the injury arises as a result of a failure to positively act/intervene (eg. no duty to effect a rescue) Exceptions include: doctor and patient CASE: Rogers v Whitaker (1992) school authority and students local councils statutory authorities

    19. 19 Positive action in the legislation Recent legislation has, in relation to professionals and statutory authorities, introduced a new test for standard of care professionals: Part X, Div 5 Wrongs Act 1958 (Vic) public or other authorities: Part XII Wrongs Act 1958 (Vic)

    20. 20 Duty of care

    21. 21 Duty of care

    22. 22 Duty of care

    23. 23 Proximity in psychological damage cases

    24. 24 Purely economic loss

    25. 25 Negligent misrepresentation

    26. 26 Can a disclaimer remove the duty of care?

    27. 27 Negligent misrepresentation

    28. 28 Duty of care defined narrowly

    29. 29 Relational interests

    30. 30 Element two - breach of duty

    31. 31 Breach of duty The standard of care is an objective one and the standard required is that of a reasonable person. This is a question of law. The defendant fails to show a reasonable standard of care if: the risk of injury was reasonably foreseeable (not insignificant risk) (a question of law); and there was a reasonable likelihood of the injury occasioned by it.

    32. 32 Breach of duty The defendant need only take precautions against foreseeable risks. The more likely/probable that the risk might occur, the greater the preventative measures are required. CASE: Bolton v Stone [1951] CASE: Wyong Shire Council v Shirt (1980) CASE: Nagle v Rottnest Island Authority (1993)

    33. 33 Breach of duty

    34. 34 Standard of care The standard of care that is expected is that of the reasonable person equipped with the same skills and expertise as a person exercising a particular trade or profession. The standard of care is flexible and varies from situation to situation CASE: Cook v Cook (1962) In relation to children, the standard is that of a child of similar age and experience CASE: McHale v Watson (1966)

    35. 35 Element three - damage Has P suffered damage? The plaintiff must suffer some loss or damage as a result of the defendants breach of duty. The plaintiff must show some link between the damage suffered and the defendants conduct. Two factors for consideration are: that the loss or damage was directly caused by the defendants breach causation; and that the loss was not too remote from the breach - remoteness.

    36. 36 Causation Onus on plaintiff to establish that the damage they suffered was caused by the defendants conduct. The most widely used test is the but for test (and is a question of fact): The breach caused the damage if the damage would not have occurred but for the breach. CASE: E H March v Stramare Pty Ltd (1991) CASE: Alexander v Cambridge Credit Corporation Ltd (in rec) (1987) Note: the but for test is not an exclusive test, e.g. there is the common sense test: CASE: approved in Chappel v Hart (1998)

    37. 37 Remoteness This permits the court to consider whether, and to what extent, the defendant should be responsible for the consequences of their conduct. It is a question of law and the test is whether a reasonable person could foresee such a happening. That is, the damage must be reasonably foreseeable.

    38. 38 Remoteness

    39. 39 Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29

    40. 40 Cole v South Tweed Heads Rugby League Football Club Ltd

    41. 41 Who was responsible for Ms Coles injuries?

    42. 42 Cole v South Tweed Heads Rugby League Football Club Ltd Breach of duty of care The evidence did not establish that the Club had failed to take reasonable care to protect Ms Cole from the risk of incurring the injuries sustained. This is because the Club would have discharged that duty when the manager offered Ms Cole a taxi to get home.

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