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DIVISION 3 Causation
Step 3: Has the plaintiff suffered damage?
Harm caused by breach
Was the breach a necessary condition of the occurrence of harm? YES Is it appropriate for the scope of the defendants liability to extend to the harm? NO Harm was not caused by breach YES Harm was caused by breach
Source: James (2010: 172) amended by Verity Greenwood, 2011 BUSL250 Sem 1, 2012
FACTUAL CAUSATION
Factual causation X must establish that your careless act caused, either directly or indirectly, the harm suffered by X:
: Yates v Jones [1990] Aust Torts Rep 81-009 : March v Stramare Pty Ltd (1991) CLR 506
: Chappell v. Hart (1998) 195 CLR 232
was the sole cause of the harm. It is sufficient to show that the carelessness was a contributing cause along with other causes.
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Remoteness
The court considers whether, and to what extent, the defendant should be responsible for the consequences of their conduct.
It is a question of law and the test is whether a reasonable person could foresee such a happening.
The Wagon Mound (No. 1) (1961) (see p. 187)
Step 4 Defences
What defences will D raise?
Two defences can be raised by a defendant and the burden of proof rests with them: 1. Voluntary assumption of risk 2. Contributory negligence
Plaintiff must have accepted the precise risk : Rootes v Shelton (1967) 116 CLR 383
This Division applies only in respect of liability in negligence for harm to a person (the plaintiff) resulting from a recreational activity engaged in by the plaintiff This Division does not limit the operation of Division 4 in respect of a recreational activity
If the plaintiff suffers harm as a result of engaging in a dangerous recreational activity they are assumed to have been aware of the risk : Agar v Hyde [2000] HCA 41
Damages
Contributory negligence
Yes
Voluntary assumption
of risk
Yes
Peer Professional Opinion defence : Dobler v Kenneth Halverson & Ors [2007] NSWCA 335
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Occupiers liability
An occupier of premises owes a duty of care to all persons
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Non-delegable duties
Non-delegable duties & strict liability
A non-delegable duty of care includes:
Employer employee relationship Landlord tenant relationship Hospital patient relationship Teacher pupil relationship The rule in Rylands v Fletcher
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another person
Burnie Port Authority v General Jones Pty Ltd (1994) ALJR 331
negligent employee for breach of a term of their contract of employment: Lister v Romford Ice & Cold Storage (1957)
Arises most frequently within the relationship of employer and employee Deatons Pty Ltd v Flew (1949) 79 CLR 370
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NEGLIGENT MISSTATEMENT
In cases of pure economic loss the law has additional requirements:
1.
To establish duty of care, reasonable foreseeability of harm to a plaintiff is not enough. A duty of care will not arise where it is not reasonable for the plaintiff to rely on the statement: : San Sebastian Pty Ltd v The Minister Administering Environmental Planning and Assessment Act [1986] HCA 68 Plaintiff must prove existence of a special relationship between the Defendant and the Plaintiff (proximity) : Hedley Byrne & Co Ltd v Heller & Partners [1964] AC 465 : Rentokil Pty Ltd v Channon [1990] Aust Torts Reports 81-019
2.
3.
An inadequate response can amount to a negligent misrepresentation if it is relied upon by the plaintiff: Pyrenees Shire Council v Day (1998)
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: Shaddock & Associates Pty Ltd v Parramatta City Council [1981] HCA 59 Reasonable reliance by plaintiff
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Esanda Finance Corporation Ltd v Peat Marwick Hungerfords [1997] HCA 8 AWA v Daniels t/a Deloitte Haskins & Sells (No 2) (1992) 10 ACLC 933
When seeking a remedy for negligent advice given in trade or commerce, the recipient of the advice can also rely on Australian Consumer Law
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Next week
Business Related Torts
Reading: Chapter 10
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