Lecture 3

1. Lecture 3 Torts and Negligence

2. Torts – P. 84 • Civil Wrong • Protects against infringement of rights against • A person • Property • Reputation • Not necessary that tortfeasor to have intended to cause harm.

3. Negligence – P. 87 • Duty of Care is Owed • Breach of that Duty of Care • Loss / Injury as a result of Breach of Duty of Care

4. Duty of Care – P. 89 • Good Neighbour Principle • Donoghue v Stevenson

5. Duty of Care • Situations where a Duty of Care exists: • Certain professional business r/ships - adviser role (principal/agent, accountant/client, solicitor/client, financial planner) • Occupier of premises to entrant (occupiers liability) • Manufacturer (product liability) • Road Users • Schools • Councils • Cigarette Companies

6. Breach of Duty of Care – P. 92 • Likelihood of injury • Gravity of injury • Effort required to remove the risk • Social utility of defendants conduct

7. Damage as a Result of Breach of Duty – P. 96 • Remoteness of damage • Assessment of damage

8. Defences – P. 98 • Contributory Negligence • Voluntary Assumption of Risk • Vicarious Liability

9. Vicarious Liability – P. 111 • Not a tort • Employer responsibility for employee actions • Hollis v Vabu

10. Negligent Misstatement – P. 106 • No contractual relationship; • Professional advice; • DOC owed to individual seeking advice • Breach of DOC; • Eco loss suffered

11. Caselaw • Hedley Byrne v Heller (1964) • Owed duty of care when giving advice based on reasonable foreseeability of reliance; • Disclaimer on advice = not liable • MLC v Evatt (1968) • DOC owed when advice given in ‘serious circumstances’ • Discount social occasion?

12. Shaddock v Parramatta Council (1981) • Established modern tests for negligent misstatement in Aust. • Flow chart p108 textbook Liability of auditors to third parties • Page 111 textbook • Caparo Industries Plc v Dickman [1990] • No DOC owed to potential shareholders

13. Defamation – P. 134 • complex area of law; • “…publication of a statement that tends to lower a person in the estimation of right thinking members of society generally; or that tends to make them shun or avoid that person” (Winfield and Jolowicz on Tort) • Protection of reputation from comments affecting that reputation

14. Defamatory statements • Written, spoken, drawing, film, sign; • ‘publication’ – communicated to others; • Libel & Slander p. 136 Libel – defamation in permanent form eg film, writings etc Slander – transient form – gesture or speech;

15. Elements – p. 136 • Must be defamatory (eg injurious to reputation, third party reactions); • Refer to plaintiff (reasonable person would say statement about plaintiff); • Published; • Unable to rely on valid defence

16. Defences – P. 140 • Consent of plaintiff to publication (complete defence) • Justified (substantial truth) • Fair comment on matter of public interest(success only if based on true facts) • Absolute privilege – made in course of parliamentary, court, solicitor/client • Qualified privilege – maker of statement has, “interest or a duty, legal, social or moral to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it”