✅ HD APPROVED - TORTS (UPDATED FOR 2026) - MLP213

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Secure your HD in Torts with the exact notes I used to score 87%. These notes provide an elite-level deep dive into Negligence and are meticulously updated for 2026 to help you navigate exam problems with speed and authority. These notes cover: 1 | INTRODUCTION, DAMAGES & COMPENSATION SCHEMES - OVERVIEW OF THE NATURE OF TORTS LAW - Objectives - Tort reform post-2002 - DAMAGES FOR PERSONAL INJURY - 1) COMPENSATORY DAMAGES - Damages (for living plaintiffs) - Fundamental principles of compensatory damages awards - Objectives of compensatory damages - Terminology - TYPES/HEADS OF COMPENSATORY DAMAGES - A) ECONOMIC LOSS - MEDICAL AND HOSPITAL EXPENSES - 1) Actual medical, hospital, rehabilitation expenses - 2) Damages for gratuitous attendant care services - Loss of ability to care for others - LOSS OF EARNING CAPACITY - Calculating LOEC - Adjustments/discounts - B) NON-ECONOMIC LOSS 12 - What is a significant injury? s 28LF - ‘Significant’ v not-significant injuries - Assessment of impairment ‘objective’ - LOSS OF AMENITIES/ENJOYMENT OF LIFE - Pain and suffering - Loss of expectation of life - AGGRAVATED AND 2) EXEMPLARY DAMAGES - Claims upon the death of a person - 1) Dependants’ claim - 2) Survival of causes of action claim - VICARIOUS LIABILITY - Vicarious liability (VL) of an employer - Two pre-requisites to VL - 1) Indicia of a relationship of employer and employee - 2) In the course of employment or reasonably incidental thereto - Vicarious liability (VL) for exemplary damages 5 | NEGLIGENCE: DUTY OF CARE - INTRODUCTION - Recognisable damage - Aims of negligence? - ELEMENTS OF NEGLIGENCE - Legislative reform - 1. DUTY OF CARE - Historical overview of duty of care - Modern requirements of a duty of care - 1) Factual duty question: ‘Reasonable foreseeability’ - 2) Legal or ‘notional’ duty question - Demise of ‘proximity’ and rise of an incremental and multi-factorial salient features approach - What are the salient features / control factors? - The scope of duty of care and issues of personal responsibility - Policy considerations: Immunity from liability - SPECIAL KINDS OF DUTIES AND LIABILITIES - ‘Wrongful birth’ claims - ‘Wrongful life’ claims - Liability of landlords to occupants - Occupier’s liability to entrants - Duty of parents to children and the rights of the unborn child 6 | NEGLIGENCE: BREACH OF DUTY OF CARE - RECAP: ELEMENTS OF NEGLIGENCE - 2. BREACH OF DUTY - FUNDAMENTAL PROPOSITIONS - STATUTORY PROVISIONS AFFECTING DETERMINATION OF BREACH - Section 48(1) Wrongs Act: General Principles - Section 48(2) ‘Calculus of negligence’ - a) Probability of harm occurring - b) Likely seriousness of the harm - c) Burden of taking precautions - Section 49 Wrongs Act - Section 14J: Apology - d) Social utility - Time for assessing the risk - Intoxication / illegality - Other factors relevant to whether D fell below standard of care - Specific breach situations: Failure to warn - Specific breach situations: Public authorities and recreational activities - Statutory provisions applying to public authorities - STANDARD OF CARE - Standard of the reasonable person - Modification of the standard of care - Children - Parental liability - Special skills - Unconsciousness or automatism - SPECIFIC STANDARDS - Industry standards - Professional standards - Medical professionals - Section 59 Wrongs Act - Failure to warn/provide advice - Professional standards - other professionals 7 | NEGLIGENCE: CAUSATION AND LIABILITY OF MULTIPLE TORTFEASORS - RECAP: ELEMENTS OF NEGLIGENCE - 3. CAUSATION - Section 51 Wrongs Act: Factual and Legal causation - ‘But for’ test - Wrongful diagnosis or treatment: Hotson v East Berkshire Area Health Authority [UK, 1987] - ‘Loss of chance’: Tabet v Gett [HCA, 2010] - ‘Exceptional’ cases: s 51(2) - Novus Actus Interveniens - Test for novus actus - Intervening negligent act of TP - Medical negligence and NAI - Intervening deliberate act of TP - Intervening negligent acts of P - Intervening deliberate acts of P - Multiple successive events - Factual causation: Failure to warn of a medical risk - Test for factual causation - Res Ispa Loquitur - Liability of multiple tortfeasors - Wrongs Act provisions re PL and CL 8 | NEGLIGENCE: REMOTENESS OF DAMAGE - GENERAL PRINCIPLES - General principles from Wagon Mound cases - Manner of occurrence of harm - Extent of harm suffered - ‘Egg shell skull’ rule - Summary 9 | SPECIAL DUTY SITUATIONS: OMISSIONS & PURE MENTAL HARM - PART 1: OMISSIONS - Definition of an ‘omission’ - Examples of failures to act that are not omissions - Exceptional cases where a duty to take affirmative action is required - Duty of care to act to prevent harm to P from criminal activities of third persons? - Exceptional situations - Duty to act to prevent P harming self? - Liability of publicans to drunken patrols - Liability of public authorities for omissions - ELEMENTS: Summary of ‘control factors’ - Policy vs operational decisions - Liability of Highway Authorities - ‘Highway rule’ - Footpaths - PART 2: LIABILITY FOR PURE MENTAL HARM - Part XI of Wrongs Act - Recovery for ‘pure’ mental harm - Common law background - Codification of law on recovery for mental harm - Important factors - Claims arising from the death or injury of another person: s 73 - Bystanders - Cases not falling within s 73 - Consequential mental harm 10 | NEGLIGENCE: DEFENCES TO NEGLIGENCE - 1. CONTRIBUTORY NEGLIGENCE - Test: 3 issues - Issue 1) Negligence by P - Reasonable foreseeability - Standard of care - Issue 1) Causation - Issue 2) Appointment - 100% reduction - Employment - 2. VOLUNTARY ASSUMPTION OF RISK - Actual and subjective knowledge of risk - ‘Obvious risk’: s 53 & 54 - 3. EXCLUSION OF LIABILITY CLAUSES/NOTICES - ACL provisions limit exclusion of liability - ‘Recreational Service Providers’ in ACL - Test: will exclusion/limitation of liability apply? - 4. LIMITATION OF ACTIONS 11 | PRIVATE NUISANCE - ELEMENTS - 1) TITLE TO SUE - 2) INTERFERENCE - a) Material damage - b) Intangible interferences - 3) SUBSTANTIAL AND UNREASONABLE - 4) WHO IS LIABLE? - 5) DEFENCES - 6) REMEDIES - A) Abatement using self help - B) Injunction - C) Damages 12 | BREACH OF STATUTORY DUTY - 1) The statute confers a right to bring a private tort action - 2) The statute imposes a duty on D - 3) P is within the class of persons protected by the statutory duty - 4) The harm suffered by P is within the class of risks to which the statute is directed - 5) D is in breach of the statutory duty - 6) P’s injury was caused by D’s breach - DEFENCES