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Law Notes Tort Law Notes

Problem Question Flowchart Notes

Updated Problem Question Flowchart Notes

Tort Law Notes

Tort Law

Approximately 69 pages

Okay, so I study by grabbing information from lectures, textbooks, study groups and, pretty much anywhere someone is willing to have a chat about a relevant topic. I then curate them into this handy numbered and subtitled format to save me time in the long run - and in turn, to save you time as well. My notes are simplistically complex by outlining the legal jargon paired kindly with real people language (like a nice cheese and wine combo), you'll be nailing the exams in a flash. Good luck, I hop...

The following is a more accessible plain text extract of the PDF sample above, taken from our Tort Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Table of Contents

Duty of Care 2

Breach of Duty 2

Causation 3

Defenses 5

Damages 9

LAWS1061 Torts – Problem Question

Duty of Care

  • Established class of persons

  • Was it reasonable foreseeable that this class of persons who is of normal fortitude may be harmed as a result of negligence?

Breach of Duty

  • Identify relevant risk of harm and negligence

  • What is the standard of care? Who is the reasonable person?

    • Children (McHale)

    • Mental Illness (Carrier)

    • Learners or extra skill (Imbree)

      • If special skill, a “reasonable person” with that special skill

      • “Reasonable person exercising a special skill”

        • Not necessarily a professional under s5O CLA

  • Can D utilize CLA s5O and s5P? (The Boman Principle – Rogers)

    • Is the D a “professional” – s5O(1)

    • Is the D “providing services” – s5O(1)

    • Is the service/practice “widely accepted? – s5O(1)

    • Is this opinion “irrational”? – s5O(2)

    • Does not apply to duty to warn of risk of death or injury – s5P

  • Is the reasonable foreseeability of the risk of injury is “not significant”?

    • “Not far fetched and fanciful” (Wyong v Shirt)

    • Risk is foreseeable (D knew or should have known) – s5B(1)(a); (chapman v Hearse)

    • Consider, would a reasonable person in D position have taken those precaution (Romeo v NTCC)

  • Calculus of Negligence - s5B CLA (Some risks are worth taking)

    • A- Probability of harm if care is not taken (Romeo, Dederer, Bolton v Stone)

    • B -Likely seriousness of harm (Paris v Stepney)

    • C- Burden of taking precautions to minimize the harm (Woods)

    • D- Social utility of the activity that creates the risk of harm (E v Red Cross)

      • It is unlikely that social utility will be considered in determining breach

    • Balance A + B (probability of harm) with C+D (risk of seriousness of harm) against burden of completing a special skill – and among other things.


  • The But-For Test

    • The negligence was a necessary condition for the occurrence of harm – factual test s5D(1)(a) AND

      • More probable than not that, but for D’s act, harm would not have occurred

      • May be liable for further injuries brought about due to original injury (Pyne v Wilkenfeld)

    • It is appropriate for the scope of the negligent person’s liability to extend to the harm so caused – scope of liability – legal causation s5D(1)(b)

      • Consider intervening acts and remoteness

    • EXCEPTIONAL CASE – if negligence can not be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation (the but-for test), then the courts must consider: whether or not and why responsibility for the harm should be placed on the negligent party:

      • On the balance of probabilities

        • Multiple cause or defendants (Amaca v Ellis)

        • Inconclusive evidence but negligence sufficiently increased the risk of harm (Strong v Woolworths)

    • If failure to warn of risk eventuates:

      • A causal connection will exist between the failure (to warn) and the injury if it is probable that the P would have acted on the warning and desisted from pursuing the type of activity or course of conduct involved

        • No liability if it would have gone ahead anyway (Chappel v Hart)

      • Test is subjective - not what the reasonable person would have done- s5D(3)(a) (Rosenberg v Percival)

      • Any statement about what a person would have done after the harm is inadmissible, unless statement is against his or her interest - s5D(3)(b)

  • Novus Actus Interveniens – Is there an intervening act?

    • Was there a reasonably foreseeable event in a situation of risk created by D? (Chapman; Mahony) [Is it the very kind of thing that would be expected from the decision?]

      • If yes, was the new act the “very kind of thing” that was likely to happen due to D’s negligence

        • If yes, there is no novus actus and D is liable for the consequences (March v Stanmore; Chapman v Hearse)

      • If no, likely novus actus and D is not responsible for damage resulting from new act

    • Was there a voluntary human act by P or 3rd party? (Haber; Lothian; Caterson) OR

      • P’s act must be truly voluntary and not a consequence of the injury (Haber v Walker)

      • Deliberate act by 3rd party, especially criminal act likely to bring Novus Actus (Adeels Palace; SRA v Chu)

        • Unless, the very thing that D had a duty of care to protect against (March v Stanmore)

    • Was there a causally independent event unconnected with the negligence (Haber)

      • D is not liable for a coincidence, as long as risk to P has not been increased by actions of D (March v Stanmore)

    • For medical negligence, provided P acts reasonably, medical negligence is not a Novus Actus unless it is ‘inexcusably bad’ or ‘so unnecessary or improper’ (Mahoney v Kruschich)

  • Test of remoteness – the “reasonable foreseeability of risk” (Wagon Mound no.1)

    • Was the kind of damage reasonably foreseeable as a result of the breach? (Kavanagh; Nadar) [Kind = physical or mental]

      • Even if the extent of the injury is not RF consider egg shell skule rule (Stephenson; Nadar; Kavanagh)

        • The tortfeeser must return the P to how s/he found them

        • This is independent of whether the P had a different reaction to the reasonable person

      • As long as it is the kind of injury that is RF, the particular manner and extent of P’s injury does not need to be RF (Hughes v Lord Advocate; Jolley; Kavanah)

    • Consider if, values or policy based considerations might warrant/discount imposing responsibility for the harm caused – whether or not and why responsibility should be imposed upon the negligent party (s5D(4); Wallace v Kam) and whether it is appropriate to extend liability – s5D(1)(b)

      • S5D(1)(b) CLA “appropriate” + s5D(4) CLA “whether or not and why”


  • Contributory negligence – (Incomplete defense – ameliorated by appropriate legislation – ie Law Reform (Miscellaneous Provisions) Act 1965 (NSW))

    • How much care would a reasonable person in the P’s positin have taken, and did the P take less care (Objective standard) – s5R CLA

      • No dispensation is made if the P was incapable of achieving the standard of the reasonable...

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