BLAW10001 Lecture Notes - Lecture 10: Ratio Decidendi, Bleeding, Ginger Beer
14 May 2018
School
Department
Course
Professor
Tort Law
1. Liability for wrongful conduct causing harm
•The word Tort comes (via French) from ‘tortus’ - Latin for twisted; crooked; wrong.
•Tort law is concerned with wrongful conduct by one person that causes harm to another.
•Tort law provides a private right of action for compensation; or for an order to stop continuing or
threatened harm.
•Both natural persons and corporations are liable for wrongful conduct causing harm.
•Tort law encourages or discourages particular behaviour.
2. Recognised torts in Australian law
•Liability in tort must be limited to prevent the courts being overwhelmed and the economy
damaged
•Also, desirable activities must not be discouraged
•Liability in tort therefore only exists in for particular recognised types of harm
3. The Tort of Negligence
•The tort of negligence means a failure to take reasonable care to prevent loss or damage to
others that was foreseeable, and should have been prevented.
-A very broad concept that potential applies to a great number of situations.
•Different types of conduct and harm must be distinguished because different rules apply when
establish liability for negligence.
-Depends on what type of conduct and harm is involved
•Categories on conduct include:
-A positive act;
-A failure to act (omission);
-Making a statement or giving advice, or failing to do so.
•Categories of harm include:
-Physical injury to the person;
-Physical damage to property;
-Purely economic loss.
4. The essential elements of negligence
•To establish liability for negligence it must be established on the facts of the particular case that:
(a) The defendant owed the plaintiff a duty of care; AND
(b) The defendant breached the duty of care; AND
(c) As a result of the defendant's breach, the plaintiff suffered loss or injury that was not too
remote.
Hawkins v Clayton (1988) 164 CLR 539
Summary: Clayton (solicitor) given will in which Hawkins was executor/beneficiary. Hawkins
not notified for six years after death and house had fallen into disrepair and worth much less.
Hawkins sued for negligence.
Decision: Clayton was liable in negligence
Ratio decidendi: Clayton owed Hawkins a duty of care to inform him he was the beneficiary
of will.
Rogers v Whitaker (1992) 175 CLR 479
Summary: Whitaker blind in one eye, Rogers operated, failed, and caused blindness in other
eye. Whitaker not warned of this risk.
Decision: As a surgeon, Roger has duty of care to explain risks.
Ratio decidendi: Duty owed by defendants that have special skills.
Hole v Hocking (1962) SASR 128
Summary: Hole suffered brain damage due to haemorrhage caused in car accident by
Hocking. However, haemorrhage was going to occur later in Hole’s life anyway.
Decision: Hole only entitled to damages for harm suffered by negligence of driver
Ratio decidendi: Driver cannot be held responsible for something that would have occurred
without his negligence. Only need to pay damages for period of which the haemorrhage was
accelerated.
Perre v Apand Pty Ltd (1999) HCA 36; (1999) 198 CLR 180
Summary: Perre exported potatoes to WA, cant export if crops close to disease. Apand sold
contaminated seeds to nearby farm, Perre unable to export to WA, sued Apand for negligence.
Decision: Apand owed duty of care to Perre
Ratio decidendi: Per belonged to class of persons who might suffer harm (potato farmer).
Perre dependant on Apand acting responsibly, could not protect himself from harm, therefore
vulnerable - Apand aware of this. Perre suffered purely economic loss.
Document Summary
A very broad concept that potential applies to a great number of situations: different types of conduct and harm must be distinguished because different rules apply when establish liability for negligence. Depends on what type of conduct and harm is involved: categories on conduct include: Summary: clayton (solicitor) given will in which hawkins was executor/bene ciary. Hawkins not noti ed for six years after death and house had fallen into disrepair and worth much less. Ratio decidendi: clayton owed hawkins a duty of care to inform him he was the bene ciary of will. Making a statement or giving advice, or failing to do so. Summary: whitaker blind in one eye, rogers operated, failed, and caused blindness in other eye. Decision: as a surgeon, roger has duty of care to explain risks. Ratio decidendi: duty owed by defendants that have special skills: categories of harm include: Summary: hole suffered brain damage due to haemorrhage caused in car accident by.
