MGTS1201 Final: Tort-laws1100
Tort of negligence
Established duty (ppt.11)
○
Occupier (Safeway v Zaluzna; Hackshaw v Shaw, ppt.12)
○
○Occupier-public authority
○Giving advice (ppt.28) & to a third party (ppt.30-31) & auditor (ppt.32-33)
They (Defendant) owe the other person (Plaintiff) a duty of care(Donoghue V
Stevenson, pp.78); and
1.
Was the risk reasonably forseeable? Or not?1)
Was the risk not insignificant?
2)
The probability of harm (Bolton v Stone );
a.
The likely seriousness of the harm (Paris v Stepney Borough Council);b.
The burden of taking precautions;c.
The social utility of the defendant’s activityd.
Would a reasonable person have taken precautions? Or not?3)
They (Defendant) breach the duty of care (S9 CLA) ; and
2.
But for test ppt.19 (Alexander v Cambridge Credit Corp; Yates v Jones)1)
Scope of liability ppt.20 (Donoghue v Stevenson;Overseas Tankships v Morts )2)
The breach of duty causes the other person(Plantiff) to suffer loss, damage or injury
and the injury was caused by the breach (S11 CLA) -ppt.19
3.
Test
Defences
Voluntary Assumption of Risk - fully informed-ppt.21 (Avran v Gusaroski)
Contributory Negligence ppt.22 (Cook v Hawkes; Ingram v. Britten)
Other defences ppt.22
Consequence Injunction, damages, mitigation- ppt.24-25
Occupier’s Liability
Public Authorities
(Ppt.26-27)
Is there a hidden risk that requires warning or prevention?
•
Is the risk so foreseeable or obvious to a reasonable person?•
Nagle v Rottnest, Swain v Waverley, Romeo v Conservation,
•
Graham v Ryan, Vairy v Wyong
Negligent Misstatement
(ppt.28; pp.91-98)
a duty of care to a third party (ppt.30-31) & reduce liability (ppt.31)
Liability of auditors (ppt.32-33)
Tort of trespass
Trespass to land (ppt.34)
•
•Trespass to goods: Conversion & Detinue (ppt.35)
Battery ; assault; False Imprisonment; Tort of Nervous Shock
○
Trespass to the person (ppt.36-38)
•
Type
Defences(ppt.43)
OTH
Private Nuisance (ppt.38)
•
Public nuisance (ppt.39)
•
Tort of Nuisance
Tort of Defamation (诽谤) & Defences (ppt.40)
Tort of Deceit (欺骗)(ppt.41)
tort of passing off (被误认为) (ppt.42)
Tort-summary
分区 LAWS1100 的第 1 页
TORT —— TORT —— TORT —— TORT —— TORT
In 2016, Vinny goes to SuperTough Bikes Bike store at the Gold Coast to buy a bicycle to go mountain biking (riding
bicycles in hilly and mountainous regions for sport and fitness).
Zebo owns and manages the SuperTough Bikes store. SuperTough Bikes stocks a wide range of bicycles form a
variety of manufacturers and SuperTough Bikes also manufactures its own bicycles in a workshop at the back of the
store which Zebo also supervises. SuperTough then sells their bikes directly to customers through the store.
Vinny looks at the bicycles on display on the store and tells Zebo that he wants a bike tough enough to withstand the
worst punishment when riding in the mountains. Zebo then recommends the 2106 model SuperTough Bike Series 10
Mountain Bike to Vinny as being the most suitable bike for his needs and says “It is the toughest bike for mountain
biking on the market today”.
Vinny is convinced by Zebo’s recommendation, says “That sound’s perfect” and then buys a SuperTough Bike Series
10 Mountain Bike from the store.
One week later, Vinny takes his SuperTough Bike Series 10 Mountain Bike to Tamborine Mountain to ride on the
mountain biking trails. After about 4 hours of riding his bike, Vinny jumps down a bike trail down the side of a small
hill. However, when he lands on the side of the hill, the bicycle frame snaps, causing Vinny to land face-first into a
large rock, fracturing his cheekbone and causing tendon damage to his neck.
It is discovered afterwards that the bicycle frame snapped because of a defect, namely SuperTough had been using
an inferior strength metal alloy when they cast the bike frames which made the frames weaker when absorbing
impacts.
SuperTough had used a stronger metal alloy prior to 2016 that would have solved this problem, but chose to use the
inferior strength alloy for all 2016 models of their bike to save money on production costs.
Advise Vinny if he can make a claim in the tort of negligence for his injuries against SuperTough Bikes? (ILAC)
Issue: Can Vinny bring a tort of negligent claim against SuperTough Bikes?
Law:
1. Owing a duty of care
An occupier owes a duty of care to all persons entering the premises to ensure that the premises are safe
(Safeway v Zaluzna).
2. Breach of a duty of care - S9 CLA- A defendant breaches their duty of care if:
The risk was foreseeable (a risk they knew about or ought reasonably to have known about),
The risk was not insignificant, and
In the circumstances, a reasonable person in their position would have taken precautions
To determine if a reasonable person would have taken precautions or not, the court will take into account
The probability of harm (Bolton v Stone)
The likely seriousness of the harm (Paris v Stepney Borough Council)
The burden of taking precautions
The social utility of the defendant’s activity (Cases?)
3. Causation - S11 CLA - The defendant is only responsible for the harm if:
There was factual causation - but for the defendant’s actions/inaction, would the plaintiff have still suffered
harm?; Scope of liability – was the actual harm a reasonable foreseeable consequence of the defendant’s
breach? (Cases?)
Defences:
Voluntary assumption of risk
If it can be established that the plaintiff was fully informed/aware of the risk at the time the harm was
caused and that they voluntarily assumed the risk, the defendant may be relieved of all liability (Avran v
Gusaroski )
Contributory negligence
If it can be established that the plaintiff contributed in some way to their own loss or injury, liability will be
apportioned between the defendant and the plaintiff (Ingram v Britten, S23 CLA)
Owe a duty of care – reasonably foreseeable – salient features (Donoghue V Stevenson) - occupier’s liability
(Australian v Zaluzna)
Breach of duty (S9 CLA) - reasonably foreseeable- not insignificant- precautions-probability-likely seriousness-
burden-social utility
Causation – but for test- scope of liability (Overseas Tankships v Morts)
Defences- voluntary assumption (Avran v Gusaroski)- Contributory negligence
Application:
Zebo(D) owns a duty of care under occupier’s liability because he being the owner, manager and supervisor of the
SuperTough Bike, may have power of control of how the bikes are made in the manufactory. (Australian v
Zaluzna)
It is reasonably foreseeable because a reasonable manufacturer would know if they use weaker material, it could
raise the risk of the product breaking.
Salient features are consistent because a reasonable manufacturer standing in his shoes may probably say I can’t
weaken the mountain bike that used in high impact, mountain and rough environment, I would probably would
still use the stronger one. If I use a weaker one, I will probably foresee that I will own a duty of care when people
get injured when the frame snaps.
A reasonable person staying in Zebo’s shoes would have either recommended not to buy, knowing that it was
made of inferior metal alloy or perhaps used the same superior strength of alloy they have used in the past.
The risk was foreseeable because Zebo has once used the stronger one and there was no accidents. A reasonable
manufacturer standing in Zebo’s shoes would know that there is a reasonably foreseeable risk that if they use
inferior alloy that could lower the quality of the product, which could lead to breaking and make people get
injured.
The risk was not insignificant because having a land face-first injury was not an insignificant injury, it was a
significant injury any reasonable person may foresee coming if they use inferior metal outline. This is for
mountain biking, not riding in the backyard, people may hurt on mountain where there is rocks and trees. If you
fall on one of those things, you probably will have a serious injury. Anyone who manufactures mountain bike
would own a duty of care to make sure that his product will not cause injuries to their customers.
A reasonable person would have taken precautions because:
The probability of harm is high because it was a bike made for writing in the mountains, not a bike for low
impact road situations. It means that there is a high chance if the metal is of inferior quality, it could be a
defect that causes injury.
There is likely seriousness of the harm when people ride in mountain areas, they are not going to suffer small
injuries, they are going suffer serious injuries if the mountain bike is not safe enough to use.
The burden of taking precautions is quite low because all Zebo needed to do is to use higher quality of metal
or have some type of procedure for testing the strength of the frame before they were sold and assembled
the bike before they were sold to the customers.
There is no social utility here because the purpose of a bike shop is to sell safe bikes to people, not to sell
bikes that people may get hurt, there is no social utility.
Document Summary
They (defendant) owe the other person (plaintiff) a duty of care(donoghue v. Occupier (safeway v zaluzna; hackshaw v shaw, ppt. 12) Giving advice (ppt. 28) & to a third party (ppt. 30-31) & auditor (ppt. 32-33) They (defendant) breach the duty of care (s9 cla) ; and. The probability of harm (bolton v stone ); The likely seriousness of the harm (paris v stepney borough council); The breach of duty causes the other person(plantiff) to suffer loss, damage or injury and the injury was caused by the breach (s11 cla) -ppt. 19. But for test ppt. 19 (alexander v cambridge credit corp; yates v jones) Scope of liability ppt. 20 (donoghue v stevenson;overseas tankships v morts ) Voluntary assumption of risk - fully informed-ppt. 21 (avran v gusaroski) Contributory negligence ppt. 22 (cook v hawkes; ingram v. britten) Nagle v rottnest, swain v waverley, romeo v conservation, Graham v ryan, vairy v wyong a duty of care to a third party (ppt. 30-31) & reduce liability (ppt. 31)
