BLAW10001 Lecture Notes - Lecture 10: Fiduciary, Contributory Negligence
10 Jun 2018
School
Department
Course
Professor
BLAW10001 Semester 1 – Tort Law
Liability for Wrongful Conduct Causing Harm
• Tort concerned with wrongful conduct that causes harm to another
• Made up largely of common law (court-made), some of which modified by
statute
• Encourages/discourages particular behaviours
• Legal obligations arise not by agreement, but imposed by law when one's
careless conduct harms another
Nature of Obligations Owed
• Provides private right of action for compensation, or order to stop
continuing/threatened har (injunction)
• Natural persons & corporations liable for wrongful conduct causing harm
Recognised Torts in Australian Law
• Liability limited to prevent courts being overwhelmed & economy damaged
• Desirable activities must not be discouraged
Tort of Negligence
• Imposes liability on those who fail to take reasonable care to prevent
loss/damage to others that was reasonably foreseeable & prevented
• Different rules apply depending on type of conduct & harm involved
• Categories of conduct:
o Positive act - doing something e.g. driving a car
o Failure to act (omission) - neglected to take action e.g. did not put up a
safety fence
o Making a statement or giving advice, or failing to do so
o Professional services
• Categories of harm:
o Physical injury to person
o Physical damage to property
o Purely economic loss
Essential Elements of Negligence
1. Defendant owed plaintiff duty of care, and
2. Defendant breached duty, and
3. As a result of breach, plaintiff suffered loss/injury that was not too remote
Duty of Care
• Legal duty to take reasonable care to avoid foreseeable harm
• Tort action may only be brought against someone who owes injured party a
'duty of care'
Establishing Duty of Care
1. It must have been reasonably foreseeable to person in position of defendant
that injury/harm would happen as a result of conduct engaged in by defendant
2. Plaintiff must be person/member of class of persons who it was foreseeable
might suffer harm due to defendant's conduct
3. Check whether the courts have previously recognised a duty in similar
contexts. If so, this will confirm that a duty is owed (the first two steps
will most likely point in this direction). If not, this does not necessarily
mean that there is no duty. Rather, you must be more confident about your
analysis of steps one and two if concluding that there is a duty
Document Summary
Nature of obligations owed: provides private right of action for compensation, or order to stop continuing/threatened har (injunction, natural persons & corporations liable for wrongful conduct causing harm. Recognised torts in australian law: liability limited to prevent courts being overwhelmed & economy damaged, desirable activities must not be discouraged. Essential elements of negligence: defendant owed plaintiff duty of care, and, defendant breached duty, and, as a result of breach, plaintiff suffered loss/injury that was not too remote. Duty of care: legal duty to take reasonable care to avoid foreseeable harm, tort action may only be brought against someone who owes injured party a. If so, this will confirm that a duty is owed (the first two steps will most likely point in this direction). If not, this does not necessarily mean that there is no duty. If conduct in question does not relate to a duty of care situation previously recognised, does not mean no duty owed.
