LAWS4016 TORTS - detailed and exam structured notes

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NEGLIGENCE 1. Established duties of care 2. Novel duties of care Doctor & patient Solicitor & client Teacher & student 2) whatever the scope, all DoC are to be discharged by the exercise of reasonable care OMISSIONS Is there an ILLEGALITY or IMMUNITY? – Extension of scope 1) Illegality of a 3rd party 2) Joint illegality of the parties 3) Illegality of the P themselves Advocates immunity NO duty to rescue Police NOVEL FACT SCENARIOS INCREMENTALIST APPROACH ELEMENTS Foreseeability Degree of control Vulnerability of the Plaintiff Coherency of the law Nature of r/ship between D and P (Tame; Annetts) PUBLIC BODIES Section 5AA: exercise of function or decision to exercise does not in of itself create a duty Section 5 W: principles to consider ( relevant to duty but mainly breach) Section 5 X: policy defence ( relevant to breach) MENTAL HARM 1. Is there a recognised psychiatric illness? (CLA s 5 S(1)) 2. What is the type of harm? (s 5 Q) 3. If there is a recognised psychiatric illness - apply the Reasonable Test (s 5 S(1)) For both pure and consequential 4. Provisions of the CLA 2) Secondary victim (2) in respect of pure mental harm, the circumstances of the case include (c) Nature of the r/ship between P and person killed/injured (d) Whether or not pre-existing relationship between the P and D **NB: if public body and mental harm PURE ECONOMIC LOSS 1. Negligent statements causing economic loss; (NB, other actions MDC under ACL) 2. Negligent acts causing economic loss (“relational economic loss”) Novel fact scenarios BREACH STANDARD OF CARE (s 5 B(1)(c) CLA s 5B(1)(c) BREACH of duty CLA s 5 B -- BREACH REQUIREMENTS Foreseeability (per s 5B(1)(a)) – categorise the risk Risk was not insignificant (s 5B(1)(b)) (a) Probability of harm (b) Likely seriousness of harm (c) Burden of taking precautions Other things (s 5B(2) OBVIOUS and INHERENT risks OCCUPIER’S LIABILITY CAUSATION STRUCTURE ELEMENTS of causation 1) DAMAGE (s 5C(1)) 2) FACTUAL CAUSATION 3) SCOPE OF LIABILITY (“legal causation”) REMOTENESS DEFENCES CONTRIBUTORY NEGLIGENCE Inconvenience Agony of the moment Carelessness of others Causation and remoteness Effect of intoxication Elements of COMMON LAW volenti Volenti – STATUTORY MODICATION OBVIOUS RISKS DANGEROUS RECREATIONAL ACITIVIES ILLEGALITIES AND IMMUNITIES LIABILITY FOR OTHERS VICARIOUS LIABILITY Elements of VL (for employee-employer) Element 1 – WHO IS AN EMPLOYEE? (Nb; no VL for IC) Element 2 – CONNECTION between the ACT of the TF and the R/SHIP with the DD Element 3 – the Act/Omission MUST be WRONGFUL Liability of an employer for the wrongs of an IC PERSONAL LIABILITIES FAILURE TO CONTROL NON-DELEGABLE DUTIES INTENTIONAL TORTS TO THE PERSON TRESPASS: In General Three distinctive characteristics – consider each then go to specifics BATTERY (trespass to person) 4 ELEMENTS TO PROVE ASSAULT ELEMENTS TO PROVE FALSE IMPRISONMENT ELEMENTS TRESPASS TO LAND ELEMENTS Examples of trespass DEFENCES NUISANCE