Foundations of Australian Law Fourth Edition Copyright © 2013 Tilde Publishing and Distribution Chapter 6 The 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 summary Figure 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