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Torts - Negligence Notes
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Torts - Negligence Notes

LAW2202 - Torts B

35 Pages 1 Student Found this helpful Monash University Complete Study Notes Year Uploaded: 2017

Exam notes cover tort of negligence. Includes flow charts, cases, duty of care, breach of duty, causation, remoteness and defences. Example: DUTY OF CARE (DOC) P must show that D owed P a duty of care. There a 3 types of situations: 1. Settled law that a duty of care exists 2. Settled law that a duty of care does not exist 3. No settled law on whether a duty of care exists or does not exist – general and particular duty situations To establish a DOC 1. Determine whether the law is settled as to the existence of a duty of care in the given scenario 2. If not settled (and also not a particular duty category) apply the current approach to determining duty of care in general scenarios 2.1 Reasonable Foreseeability test + 2.2 Salient Features Analysis Established duty of care (settled law) The DOC relationship between P and D falls within the established category of; • Driver and other Road users: Broadhil v Young • Driver/passenger: Chapman v Hearse • Doctor/patient: Rodgers v Whitaker • Employer/employee: Smith v Charles Baker co • Occupier/invitee: Heaven v Pender • Manufacturer/consumer: Donoghue v Stevenson • Negligent mistreatment/people being advised • School authorities/students • Local councils/persons requiring rezoning information • Dog owners/people who may be bitten • Council/ user of beach for waterski: Vairy v Wyong Shire Council • Jailer/ prisoner • Occupier of private land/ entrants on the land: Australian Safeway Stores v Zaluzna • Landlord/tenant: Parker v SA Housing Trust – daughter of tenant burt by faulty gas oven • Landlord/ 3rd parties: Jones v Bartlett – son walked into glass door not fitted with standard 2nd. If there is no settled law, D’s DOC to P can be established by implementing the reasonable foreseeability test. Reasonable foreseeability test – 2 stage test The test is whether it was reasonably foreseeable, in the sense that it was ‘likely to occur’ or ‘not unlikely to occur’ (Caterson) and was not far-fetched or fanciful (FFF) (possibility, not probability) (Sulivan v Moody), that a failure to exercise reasonable care could result in harm to the P or a class of person to which s/he belongs (Donoghue v Stevenson; Chapman v Hearse). Chapman v Hearse: Mr Chapman (the Appellant) drove negligently causing an accident. His car flipped over and he was thrown into the road where he lay unconscious. A Dr. Cherry, who was driving past, stopped his vehicle and went to help Mr Chapman. While he was attending to Chapman, Dr. Cherry was struck by a car driven by Mr Hearse (the Respondent) who was also driving negligently. Dr Cherry died as a result. 1.Reasonable Foreseeability Test • Don’t need to foresee the ‘precise sequence of events’ • The question is whether a consequence of the same general character of injury as what occurred is reasonably foreseeable. Eg If you don’t drive carefully, everyone on the road is at risk around you” • Eg it was reasonably foreseeable that someone would stop to help Mr Chapman, and that in doing so it was ‘not unlikely’ that they may themselves be injured. There was therefore a duty of care. Consider: 1. Class of person - What class of persons might possibly be put at some risk of injury in some way if the defendant failed in some way to take reasonable care? Either the P themselves; or The class of persons of which the plaintiff is a member (Chapman v Hearse)
 Eg road users or concert goers 2. Is the plaintiff one of those people or fall within this group?
 3. Was the injury/damage reasonable foreseeable? • ‘likely to occur’ or ‘Not unlikely to occur’ (Caterson v Commissioner for Railways) • The reasonable person must have foreseen a real, rather than far-fetched or fanciful, possibility of some harm to the P (Sullivan v Moody) What is the general class of injury? (ie personal injury, property damage, mental harm or pure economic loss) (Chapman)
 Reasonable person = reasonable person in the position of the defendant could reasonably forseen Reasonable foreseeability is necessary but not yet sufficient to establish a DOC where there is no settled law (Sulivan v Moody). This is because of the concern that claims of negligence may get out of hand, thus, P If the situation does not fall into one of these categories you will have to establish DOC by the salient features of the case (Sullivan v Moody)


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