Tort Of Negligence

Tort of negligence Issues Duty of care is owned

P

D

Yes. Physical loss

No. Physical loss

Donoghue v Stevenson Mental harm Jaensch v Coffey (Reasonable person test CLA 33) Economic loss Esso Petroleum Co Ltd v Mardon

No need to prevent form harm Good Samaritans/Volunteer Disclaim D has control or not P’s vulnerability Special relationship

Breach standard duty of care

Not effective Yes. Australian Safety Stores v Zaluzna Cant stray away/ Lack of special knowledge Exists. Chapel v Hart Yes

Modbury Triangle shopping centre v Anzil Mental loss Tame v New South Wales Economic loss Esanda Finance v Peat Marwick

Yes and effective Heyley v Heller No Modbury v Anzil Does not exist. No

O’Dwyer v Leo Buring

Romeo v Conservation Commission of NT

Section 31 Standard care

Could have done better

(Reasonable person in D’s position) Section 32

Have done a what a reasonable person could be expected

O’Dwyer v Leo Buring

Romeo v

1 Not reasonably expected of that person

2 Reasonably expected of that person

1 Foreseeablity

2 Risk not insignificant 3 Probability of risk/seriousness of risk/cost of taking precautions Section 40 Skilled person

A person professing to have a particular skill

2 Relevant circumstances

Esanda Finance v

Causation of loss

Yes

No

Section 34 Definition of causation

Yes. Chapel v Hart

No

No According to Section 44 standard of P’s negligence. P is not negligent Not involved in

Yes . P is also negligent.March v Stramare Pty Ltd Involved in

1 Necessary condition of the occurrence of the harm 2 D be responsible for P’s loss Section 50 Contributory negligence Section 42 Maintenance of road Section 43 Criminal activity

Unsafe goods Issues Corporation Trade or commerce

P

D

Yes. By the virtue of “Ltd”

Not a corporation

Yes

Supplier (Sales/Lease/Hire/Hire-

Yes

Not within course of trade or commerce Not supplier

lease/Exchange) Defective (Objective community test)

Manufactured Actual manufacturer (Grown/processed/produced/assembled/extracted) Deemed manufacturer Holds out as manufacturer/permitting names to be applied to goods/imported goods with actual manufacturers have no branches in Australia

Liability of intermediaries Real manufacturers unknown/30 days limit for

Good’s safety is not such as persons generally are entitled to expect. All relevant information ought to be disclosed. Yes. ACCC v Glendale

Goods reached general people’s expectation. Goods are inherently dangerous. (Inherent defect)

intermediaries to reply with details (Otherwise deemed manufacturers) Goods (Ships, aircraft and other vehicles/ Animals, including fish/Minerals, trees and crops/ Gas and electricity)

Type of losses Bodily injury or death/Financial loss to dependants/damage to domestic(PHD) goods/damage to domestic buildings

Yes. Thomas v Southcorp Australia Ltd

Total defences to TPA VA

Ryan v Graham Barclay Oysters (Undetectable defect)

Subsequent defect (did not exist at time of supply/time supplied by actual manufacturers (except electricity when generated)) Compliance with mandatory standard (Liability shift to commonwealth) Undetectable defect (State of scientific or technical knowledge unable to find defect) Goods are components of other goods and defect attribute to design/markings/instructions or warnings of finished goods

Partial defences to TPA VA

No. Caused solely by D

Contributory Acts or Omissions (Caused by both D and P)

Exclusion Any exclusion purports to exclude, restrict or modify liability under TPA VA void

Time limitation Supplied less than 10 yrs/Action started within 3 yrs

Manufacturer’s liability Issues

P

D

Corporation

Yes

No

Trade or commerce Supplies Manufactured

Yes

No

D is the actual manufacturers plus deemed manufacturers

No

Caused by both P and D and thus damage or compensation reduced

Goods Consumer Six situations (Similar to TPA V Div 2) Note: Resupply (There must not be a contract between manufacturers and P otherwise contract law applies)

PHD

Not PHD

Yes. Graham Barclay Oyster Ltd v Ryan

Misleading conduct Issue

P

D

Corporation Trade or commerce

Yes. By virtue of “Ltd” Yes. Evidence for commercial purpose Yes. Doing sth or not doing sth. 1 Make claim about future without reasonable grounds

Not expressly or impliedly suggest….

Engage in conduct Misleading or deceptive 1 Statement about future

2 Objective test (Audience defined particularly including the gullible and uneducated, of which the vast majority will think it is misleading. Also, it is caused by D)

2 Define misleading

Collins Marrickville Ltd v Henjo investments

If people believe this, it is not caused by D. In this scenario, P is supposed to ….. ACCC V Glendale

Total defenses 1 s65 News stories 2 s85 advertisement in magazines and newspapers Proportionate Liability Act

Liability of a concurrent wrongdoer is limited to that proportion of the total loss.

Note: this one has nothing to do with P’s mistakes or contributory act

Court just considers to the extent of that person’s responsibility for the loss.

Unconscionable conduct Types

51AA

51AB

51AC

Corporation

Same

Same

Common

Trade and commerce

Conditions for D

Supply or possible supply

Special condition for P

Use at last resort (When 51AB AND 51AC do not apply)

PHD

For commercial purpose (Not public company/under 10 Million/for trade and commerce purpose)

Special definition for unconscionable

P has special disadvantage

Relative bargaining power

D took advantage of P’s weakness

Understanding of document

Conduct in similar transaction

P relies on D’s misrepresentative advice

Price elsewhere Undue influence Harsh conditions

Successful case for P

CBA V Amadio

ACCC v Lux Pty Ltd

Applicable industry code Failure to disclose risk Willingness to negotiate Whether act in good faith Coggin v Telstar Finance Company