EFB210 Lecture Notes - Lecture 11: Independent Contractor, Misrepresentation, Contributory Negligence
Lecture 11 – Negligence & Vicarious Liability
Objectives
- How is someone liable for negligence
- Steps needs to be in order
- Plaintiff: person harmed, Defendant: been alleged caused the harm
Forms of legal liability
- Whe a pesos odut auses ha to another person and that conduct is not justified or
excused by law, there will be legal consequences: criminal liability, tortious liability,
contractual liability, statutory liability and vicarious liability
- A person could bring a statutory action/contractual action/tortious action against the
wrongdoer
Tortious liability
- a civil wrong: an act that causes harm to another person and that gives that person to right
to commence a tortious action to recover compensation
- e.g. hitting someone could be both tortious and criminal
- tort law is concerned with the provision of a remedy to the victim of the harmful act.
- Tort law is primarily case law, developed by the courts
Examples:
- Liability for breach of duty to take reasonable care, which raises the question of negligence
- Direct interferences with person or property, which fall within the area of trespass
- Liailit fo isepesetatio that affet a pesos eputatio ad stadig i the
community which fall under the area of defamation
The tort of negligence
- A person commits the tort of negligence if the carelessly cause harm to another person
- Negligence is by far the most common tort
- The law of negligence traditionally consisted primarily of case law rules. Since the civil
liability reforms following the insurance crisis the law of negligence is now a combination of
case law and statutory rules
- In QLD, the relevant statue is the Civil Liability Act 2003 (Qld) (CLA)
Requirement 1: Duty of care (ESTABLISHED CATEGORIES)
- Motorists owe a duty of care to other road users
- Doctors owe a duty of care to their patients
- Manufacturers owe a duty of care to people who use their products
o DONOGHUE V STEVENSON (1932)
- Occupiers owe a duty of care to people who come onto their premises
o AUSTRALIAN SAFEWAT STORES V ZALUZNA (1987)
- Employers owe a duty of care to their employees
- Directors owe a duty of care to the company
- Agents owe a duty of care to their principal
find more resources at oneclass.com
find more resources at oneclass.com
Negligence
- For a legal action in the tort of negligence to succeed, the plaintiff must establish of the
following
1. The defendant owed the plaintiff a duty of care
- Is there an established category?
- A particular kind of person owe another particular kind of person?
- When we dot hae a estalished atego -> 2 steps -> determine
whether there is reasonable foreseeability (2) previous cases match the
current one
- Reasonable foreseeability test (21)
• Must show that at the time of the incident it was reasonably
foeseeale that the defedats odut ould ause ha to
someone in the plaitiffs positio
• E.g. driving a car -> owes a duty of car to those people he can
reasonably foresee are likely to be affected by his driving –
passenger, side walkers, motor cyclists, etc.
- Salient features (21)
• Plaintiff must show that the salient features of the case are
consistent with the existence of a duty of care
o The control the defendant has over the situation
o The relative vulnerability of the plaintiff
o The need for people to take responsibility for their own
actions
- Negligent misstatement
- A duty of care can also apply where there is careless advice that leads to
economic loss is given. This is known as negligent misstatement
o Relevant to accountants, auditors, financial advisers, investment
consultants, travel agents
o Establishment of duty of care for negligent misstatement is different
to the earlier slides
- A particular test
1. The advice was a business or serious nature
2. Defendant knew or should have known that the plaintiff
intended to rely on the advice
3. It was reasonable in the circumstances for the plaintiff to rely on
the defedats adie 30
- Another example – manufacturer -> retail -> customer
- So the person giving advice will as a general rule not owe a duty of care a
third party who relies on the advice except where the advisor is aware or
should be aware that the third party will be relying on the advice
2. The defendant breached the duty of care
3. The defendant’s reah aused the plaintiff to suffer harm
4. Even if all 3 elements are satisfied, the defendant must be able to reduce their
liability even if they can establish certain defences
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
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