Here you will find both extended and summarised torts law notes for the entire Monash University topic (Both Torts A and Torts B).
The summary notes are an excellent exam help, with steps to work out whether a particular tort is found in a problem question, and relevant precedent and case citations for that HD answer. They are short enough for use in an exam, but detailed enough that you will never miss a point.
The extended provide comprehensive information about all areas of the subject...
The following is a more accessible plain text extract of the PDF sample above, taken from our Torts Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Defences
Contributory Negligence
As a result of IPP reforms, Victoria have allowed a finding of contributory negligence to defeat the claim
A wrong is (S. 25) an act or omission that gives rise to a liability in tort in respect of which a defence of Contributory Negligence is available at common law.
Section 26, Wrongs Act
If a person suffers damage partly as the result of the claimant’s failure to take reasonable care (contributory negligence) and partly of the wrong of any other person or persons: -
(a) except as provided in section 63, a claim in respect of the damage is not defeated by reason of the contributory negligence of the claimant; and
(b) the damages recoverable in respect of the wrong must be reduced to such an extent as the court thinks just and equitable, having regard to the claimant’s share in the responsibility for the damage.
Section 63, Wrong Act
In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated
Section 26, Requirements
In order to show contributory negligence the P must have:
Failed to take reasonable care for her safety (breach), and
This failure contribute to her harm (causation).
Section 62, Wrongs Act
(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm
(2) For that purpose:
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and
(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time
Sudden Emergency
Caterson v Commissioner for Railways (1973) 128 CLR 99 (CB 332)
Train case where the husband jumped off and was injured
At the time, contributory negligence was a complete defense
Held:
HC found that where a plaintiff has by reason of the negligence of D be so placed that he can only escape by taking a risk, the question whether his action in taking the risk is unreasonable is to be answered by weighing the degree of inconvenience against the risk he takes in order to try and escape from it
The appeal by P was allowed, HC allowed a degree of leniency in addressing P’s behavior
This is know as the sudden emergency doctrine
Anticipating Negligence
In determining how to act with care, a reasonable person would account for the possible carelessness of others
This is unlikely to apply where carelessness by others could not be anticipated – e.g. gross negligence
Jones v Livox Quarries [1952] 2 QB 608
Facts:
P was riding on the tow bar of a vehicle for loading and carting materials on building sites
another vehicle negligently ran into him from behind and he was crushed
Held: Denning said a person will be liable if he ought to have foreseen that if he did not act as a reasonable and prudent man, then he might hurt himself
He must take into account the possibility that other might be careless
Gross negligence would not be anticipated
Minority
Kelly v Bega Valley County Council (unreported, 13 Sept 1982, Court of Appeal (NSW) (CB 338)
Facts:
P was 11 and suffered electrocution when he came into contact with a high voltage terminal
It was on a light pole put there by the council
Council denied negligence and raised defense of contributory negligence
Held:
The standard is that of a reasonable child of the same age as the P
This is assessed, not according to the P’s actual intelligence, experience and development, but according to notional levels of intelligence, experience and development for that age
However, if the P suffered from some mental or physical impairment, that may be taken into account to lower the standard of care
Causation
According to s 26 the P’s harm must be partly a result of the P’s failure to take care
According to s 62 we determine this according to same principles for determining negligence
Same principles of causation applied as per earlier topic: the contribution to harm may arise where:
a) the P’s failure to take care contributed to the accident occurring
b) the P’s failure to take care contributed to the injury – i.e. its nature or extent
Froom v Butcher [1976] QB 286 (CB 327)
Facts:
P suffered from multiple injuries when he was involved in a motor vehicle accident caused by D’s negligence
P was not wearing a seatbelt at the time of the accident and many of his injuries were attributed to this lack of care
Although P was not negligent in causing the accident, contributory negligence could still be taken into account in relation to the cause of injury
Held: Court held that bar his broken finger, P’s injuries were attributable to contributory negligence arising out of the failure to wear a seatbelt
Question is not what is the cause of the accident, rather, what was the cause of the damage
D need not show that the P’s negligence was a cause of the accident in question, it is enough if her or his negligence contributed to the harm suffered as a result of the accident
It is a key requirement in establishing the defence, the D is able to show that an action specifically contributed to the loss or injury
Apportionment
Determining apportionment based on what is ‘just and equitable’ involves a comparison of culpability
This does not equate to moral blameworthiness
Rather it is a comparison of each parties’ degree of departure from their respective standards of care
Relevant considerations might include:
The number of people put at risk by the failure to take care;
The obvious dangerousness of the act/omission;
Relative importance in causing the damage
Pennington v Norris (1956) 96 CLR 10 (CB 329)
Facts:
P was struck by D’s car as he was crossing the road at night
At trial, judge reduced P’s...
Buy the full version of these notes or essay plans and more in our Torts Law Notes.
Here you will find both extended and summarised torts law notes for the entire Monash University topic (Both Torts A and Torts B).
The summary notes are an excellent exam help, with steps to work out whether a particular tort is found in a problem question, and relevant precedent and case citations for that HD answer. They are short enough for use in an exam, but detailed enough that you will never miss a point.
The extended provide comprehensive information about all areas of the subject...
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