UWA

Semester 2, 2017


Torts Notes FInal

52 pages

22,216 words

$34.00

10

Description

TORTS NOTES - used in final exam

INTRODUCTION: NEGLIGENCE 3
The Civil Liability Act 2002 (WA) 3
Elements of an Action in Negligence 4
DETERMINING A DUTY OF CARE 8
Pre-Existing Categories 8
Development of (and alternatives to) current approach to Duty of Care 9
Current approach to duty of care in Australia 10
EXISTENCE OF A DoC - NOVEL FACT SITUATION 10
SCOPE OF DUTY 11
SCOPE: ILLEGALITY 12
4. SPECIAL CASES 13
STANDARD OF CARE AND DUTY OF BREACH 15
(A) DETERMINANTS OF BREACH 15
(B) ESTABLISHING BREACH 16
STANDARD OF CARE: The reasonable person 16
BREACH OF DUTY 17
1. the risk of harm was foreseeable s5B(1)(a) 17
2. the risk of harm was not insignificant s5B(1)(b) 17
3. in the circumstances, a reasonable person would have taken precautions against the risk s5B(1)(c) 17
(a) Probability of Harm: s5B(2)(a) 17
(b) Likely Seriousness of Harm s5B(2)(b) 17
(c) Burden of Taking Precautions s5B(2)(c) 18
(d) Social Utility s5B(2)(d ) 18
(e) Other factors (common law) 18
(f) Balancing the factors: 19
(C) PROOF OF BREACH 21
(D) PARTICULAR BREACH OF DUTY SITUATIONS 22
Medical Negligence 22
Public Bodies and Officers 22
Occupier's Liability 23
CAUSATION 24
(A) DAMAGE 24
(B) FACTUAL CAUSATION 25
1. ‘But for’ test / necessary condition 25
2. Proving causation 25
(C) LEGAL CAUSATION: SCOPE OF LIABILITY 26
3. Intervening events (novus actus interveniens) 26
(a) Plaintiff’s own conduct 26
(b) Conduct of third parties 27
(c) Extraordinary inanimate events or coincidences 27
4. Remoteness 28
MENTAL HARM 30
A. History of Mental Harm 30
B. Modern Common Law Position on Mental Harm 32
C. Liability Under the Civil Liability Act 2002 (WA), Part 1B 33
ECONOMIC LOSS 35
1. INTRODUCTION to Economic Loss 35
2. RELATIONAL ECONOMIC LOSS - Negligent Physical Conduct Causing Pure Economic Loss 35
3. NEGLIGENT STATEMENTS 36
DEFENCE: CONTRIBUTORY NEGLIGENCE 39
Introduction 39
(a) Common law 39
(b) Statute 39
Nature of contributory negligence 39
(a) No need for duty of care 39
(b) Standard of care 39
(c) Causation and remoteness 41
Apportionment 41
DEFENCE: VOLUNTARY ASSUMPTION OF RISK 42
Introduction 42
Volenti – Three Requirements: 42
(a) Knowledge of risk 42
(b) Voluntary acceptance 42
(c) Damage must result from risk 43
Volenti Examples: 43
Employer-employee cases 43
Driving cases 43
Sport and recreation cases 43
DEFENCE: ILLEGALITY 45
Plaintiff involved in illegality 45
Both parties involved in illegality 45
DEFENCE: STATUTORY IMMUNITIES AND EXCLUSIONS 46
LIABILITY FOR HARM DONE BY OTHERS 47
INTRODUCTION 47
VICARIOUS LIABILITY 48
(1) Defendant and actual wrongdoer must have been in relationship of Employer and Employee 48
(2) Conduct in course of employment and within scope of employee’s authority 49
(3) Act or omission of actual wrongdoer must have been wrongful. 51
Liability of an Employer for the Wrongs of An Independent Contractor 52
Vicarious Liability in Principal and Agent Relationships 52
PERSONAL LIABILITY 52

Author

Lucy

Campus

UWA, Crawley

Member since

August 2017