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:
Breach of Duty
What is the issue? What is the standard of care and did the D breach it?
Who is the RP?
Section 48 (1) A person is not negligent in failing to take precautions against a risk of harm unless (c) in the circumstances, a reasonable person in the person’s position would have taken those precautions
Who is the reasonable person?
It is an objective test and is that of a person of “ordinary prudence” Vaughan v Menlove
Things that will affect the standard of care:
Minority: A child will be held to the standard of care of an ordinary child of comparable age
It is not an idiosyncrasy it is a normal stage of development Kitto J Mchale v Watson
The particular child’s intelligence probably do not modify the standard
Did the child exercise the care reasonably to be expected of an ordinary child of the same age, intelligence and experience McHale v Watson, supported in Ryan v State Rail Authority of NSW
Mental infirmities DON’T
Standard of care is assessed objectively disregarding any mental incapacity short of automatism Roberts v Ramsbottom
A D with a mental impairment – which may reduce their cognitive and foresight capacities – will still be held to the standard of a reasonable mentally competent person Carrier v Bonham
Physical Disabilities LIMITED
Where a man has a distinct defect of such a nature that all can recognise it as making certain precautions impossible, he will not be held answerable for not taking them Holmes, the Common Law
If a person is aware of their symptoms and still continues and then injures the P, they will be held liable Roberts
Intelligence DOES NOT
A person whose reactions are slower than average is not excused
Similarly, a person whose intelligence is superior than average is not liable for failing to use those qualities
Knowledge
Memory and experience
One is deemed to know what the reasonable person would have learnt from experience
One is deemed to know those things which adults are expected to know eg. law of gravity
Where the status of the person is relevant then the standard is that of a person in that position Wagon Mound
Knowledge of the facts and surrounding circumstances
Actual knowledge of the circumstances on the part of D increases the standard of care imposed Brooks v LNW Ry Co
The court expect specialists to keep abreast of advances in medicine, technology
Inexperience NOT RELEVANT
If you are inexperienced, you are held to the standard of a person who is experienced Imbree v McNeilly
Skill: If you have a special skill, you are held to the standard of peers with the same skills. Eg. if you are a doctor with 1 year experience, you are held to the one standard of all doctors SEE COMMON PRACTICE
Section 58 (a)what could reasonably be expected of a person possessing that skill; and (b)the relevant circumstances as at the date of the alleged negligence and not a later date.
Profession will be relevant Phillips v Williams
Section 59 (professionals): (1)A professional is not negligent in providing a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by a significant number of respected practitioners in the field (peer professional opinion) as competent professional practice in the circumstances.
(2)However, peer professional opinion cannot be relied on for the purposes of this section if the court determines that the opinion is unreasonable.
(3)The fact that there are differing peer professional opinions widely accepted in Australia by a significant number of respected practitioners in the field concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.
(4)Peer professional opinion does not have to be universally accepted to be considered widely accepted.
Time of the assessment
The standard of the reasonable person is assessed according to knowledge at the date of the alleged negligence and not at the date of judgment Roe v Minister for health
Section 58 (b)the relevant circumstances as at the date of the alleged negligence and not a later date.
Apply the RF and Not-insignificant test
Apply the reasonable foreseeability test. THIS TAKES INTO ACCOUNT SUBJECTIVE AND OBJECTIVE
Section 48 (1) A person is not negligent in failing to take precautions against a risk of harm unless (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known) CAN TALK ABOUT REASONABLE PERSON HERE
Question is, was it reasonably foreseeable that the kind of carelessness SPECIFIC (conduct) charged against the D might cause damage of some kind BROAD to the P’s person or property, or to a class of persons to which the P belongs LOOKING AT WHAT A RP WOULD FORESEE IN LIGHT OF SKILLS ETC AND THE KNOWLEDGE OF THE D Wyong Shire Council v Shirt
Apply the ‘not insignificant’ test
Section 48 (1) A person is not negligent in failing to take precautions against a risk of harm unless (b) the risk was not insignificant
Section 48 (3): For the purposes of subsection (1) (b) – insignificant risks include, but are not limited to, risks that are farfetched or fanciful; and risks that are not insignificant are all risks other than insignificant risks and include, but are not limited to, significant risks
How do we judge significance?
Amount of harm
Likelihood of harm
Would the reasonable person in the person’s position have taken those precautions?
Section 48 (1) A person is not negligent in failing to take precautions against a risk of harm unless (c) in the circumstances, a reasonable person in the person’s position would have taken those precautions
Apply the negligence calculus
The question is: what does the ‘reasonable person’ do in light of a foreseeable and not insignificant risk
Section 49: the burden of a precaution is determined in light of the burden of avoiding similarly placed risks....
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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