What is tort?

1. What is tort? “The word tort in modern law now refers to conduct which is a civil wrong. In particular, a tort in the law refers to a breach of some duty, other than a duty arising under a contract, which gives rise to a civil cause of action and for which compensation may be recoverable…”

2. What is tort? Tort derives from Latin word ‘tortus’ meaning ‘twisted’ or ‘crooked’ act. This word found its way into English language by French as a general synonym for ‘wrong’. Tort means ‘civil wrong’ for which the remedy is common law action for damages.

3. Tort law protects general rights enjoyed by all individuals Such rights are imposed by law on individuals Action in tort law may exist independent of any contractual relationship. Contract law is concerned with parties right to have a contractual promise performed. Such rights created by parties themselves Both tort and contract laws aim to compensate the innocent party for their loss/injury Both tort and contract laws have primarily been developed by courts. How does tort differ from contract?

4. Tort law Plaintiff must prove the case on the balance of probability Plaintiff initiates the action in his/her name Tort law is concerned with compensation to plaintiff for his/her injury Criminal law Crown proves case beyond reasonable doubt An action is brought against the alleged offender in the name of State (Rex; Regina) The offender receives criminal penalty Victims of crime may apply of compensation under The Victims of Crime Compensation Act How does tort differ from crime?

5. Sorts of torts • Negligence • Defamation • Trespass: to person or property • Nuisance • Passing off: unfair competition • Interference with contractual relations

6. Negligence In strict legal analysis negligence means more than heedless or careless conduct, whether in omissions or commission: it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing. Lord Wright in Lochgelly Iron and Coal Co Ltd –v- M’Mullen [1934] AC 1 at 25

7. Negligence The cardinal principle of negligence is that the party complained of should owe to the party complaining a duty to take care and the party complaining should be able to prove that he [she] has suffered damage as a consequence of a breach of that duty. Donoghue -v- Stevenson [1932] AC 562

8. Negligence NO • Does D owe a duty of care to P? • Has D breached the duty of care? • Has D’s breach caused damage to P? • Is P’s damage too remote? D is liable in negligence Does D have a valid defence to refute P’s claim of negligence? YES NO YES NO YES NO YES

9. Negligence as a specific tort Donoghue -v- Stevenson [1932] AC 568 House of Lords [You must take reasonable care to avoid acts or omissions which you can reasonable foresee would be likely to injure your neigbour]. Grant-v- AKM [1936] Privy Council • Initially the claims based on negligence were restricted to: • physical injury and injury to property and where • Injury was the result of faulty manufacture or repair of goods • Later on the principle was applied to a variety of situations and various kinds of injury claims.

10. Elements of negligence • Duty of care • Breach of duty of care • Damage/injury • Causal connection between the breach of duty of care and damage

11. Duty of care Duty may be defined as an obligation, recognised by law, to avoid conduct fraught with unreasonable risk of danger to others.

12. Duty of care Duty of care is not a “moral obligation, or social responsibility, but a legal duty of care, breach of which might result in liability of damages…” Gleeson CJ in Agar –v- Hyde (2000) 201 CLR 552 at 560

13. Determinant of duty of care • Reasonable foreseeability • Proximity • Public policy “How wide the sphere of the duty of care in negligence is to be laid depends ultimately on the courts’ assessment of the demands of the society for protection from the carelessness of others” Lord Pearce in Hedley Byrne –v- Heller [1964] AC 465

14. Reasonable foreseeability The plaintiff must be able to show that: • he/she belonged to that class of persons whom the defendant should have regarded as being at risk though the precise loss/injury/damage actually suffered by the plaintiff may not have been foreseeable- • all that is required that it was reasonably foreseeable that the class of people, of whom the plaintiff was one, could have suffered some loss/injury as a result of defendant’s acts or omissions. Chapman –v Hearse (1961) 106 CLR 112

15. The concept of proximity “[The] world of commerce would come to a halt and ordinary life would become intolerable if the law imposed a duty on all persons at all times to refrain from any conduct which might foreseeably cause detriment to another.” Widgery J., Weller &Co -v- Foot and Mouth Disease [1966]

16. What is proximity? “It involves the notion of nearness or closeness and embraces physical proximity...circumstantial proximity... and what may be referred to as causal proximity.”

17. Recent approach of the High Court to establish the question of duty of care Proximity is no longer accepted as the defining test to establish whether there is duty of care in a particular case. Perre-v-Apand (1999) 198 CLR 180 Modbury Triangle Shopping Centre –v- Anzil (2000) 205 CLR 254

18. Approaching the question of duty of care • Consider firstly whether the case falls within the established category ; • If no, consider whether the plaintiff’s harm was reasonably foreseeable result of the defendant’s act or omission. If no, duty of care is not owed; • If foreseeability test is satisfied, consider cases where the courts have held that the duty of care does or does not exist. McHugh J. in Perre –v- Apand (1999) 164 ALR 606

19. Standard of care of a professional person ‘...the test is the standard of the ordinary skilled man exercising and professing to have that special skill’ (Bolam test)

20. What standard of care is expected of a professional person? • The standard of care expected of a professional person is of a reasonableprofessional person in the circumstances of the defendant. • “The general test for a reasonable standard of care owed by a professional person is that of an ordinary competent practitioner exercising ordinary professional skill” (Bolam –v – Friern Hospital Management Committee [1957]. Roger -v- Whitakar (1992) 175 CLR 479 [Dr Roger was held liable for Mrs Whitakar’s injury]

21. Standard of care of a professional person “The ultimate question...is not whether the defendant’s accords with the practices of his [her] profession.... but whether it conforms to the standard of reasonable care demanded by the law. That is a question for the court and the duty of deciding it cannot be delegated to any profession or group in the community” (King CJ F-v-R (1983) 33 SASR 189) • Mercer –v- Commissioner for Road Transport and Tramways (NSW) (1936) 56 CLR 580

22. Damage Merely creating a risk of injury is not actionable; injury must have become actual. • Physical injury • Nervous shock • Economic loss • Damage to property

23. Defences to a case of negligence • Contributory negligence • Voluntary assumption of risk • Disclaimer clauses • Inevitable accident • Denial of negligence