#6119 - Torts Legislation List (Nsw) - Tort I (Intentional & Negligence)

Torts I Legislation s56 Definition: Good samaritan s57 Emergency will be a defence Physical Injury Good Samaritans ss 55-58 CLA Intoxication ss 47-50 CLA Mental Harm ss 27-33 CLA Mental Harm ss 27-33 CLA s58 No protection to rescuer (creator of the injury, failed to exercise reasonable care, unqualified professional level) s48 Definition: Intoxication s49 No additional DOC owed to the intoxicated s50 Criteria (intoxicated when injured; no liability owed to the intoxicated unless no fault on his side; contributory negligence; assessment of contributory negligence) s28 Mental harm arising from negligence Duty of Care s27 Pure mental harm or consequential mental harm s31 Recognised psychiatric illness s32(1) "Normal fortitude" required in legislation Psychiatric Injury s32(2) List of the circumstances for the judgment of "normal fortitude" s29 Claims arising from nervous shock recoverable s30(1) Pure mental harm only s30(2) Plaintiff "witness" the accident or "a close family member" of the victim s30(5) Definition of "a close family member" s30(3) Contributory negligence by the victim Duty of Care Physical Injury s30(4) Defendant's complete defence s33 Recovery for consequential mental harm Torts I Legislation s 5B(1) s 5B(2) Breach of Duty s 5C s 141 Foreseeable = not far-fetched or fanciful: Wyong Shire Council v Shirt Not-insignificant: Paris v Stepney Borough Council Not an exhaustive test: *Probability: Bolton v Stone; The "Wagon Mound" (No 2); *Likely seriousness: Paris v Stepney Borough Council *Burden of taking precaution: RTA v Dederer *Social utility: Romeo v Conservation Commission Of the NT; s 5B CLA Breach General Other Principle: *The extent of taking precaution, no need more than that *Not a defence to ask others to do things in a different way *Defendant's later action no defence The victim's (plaintiff's) knowledge as to the skill or experience of the driver is irrelevant to the judgement of damages. s 5C CLA Knowledge to the experience MACA Professional Negligence ss 5O 5P CLA Causation & Remoteness ss 5D 5E CLA (1) Reintroduce the Bolam Principle Breach of Duty (2) Courts' discretion. s 5O (3) Different opinion does not affect liability. (4) Peer's opinion does not necessarily to be universally or widely accepted. s 5P Causation and Remoteness Failure to warn in respect of the risk of death or injury constitutes a breach of duty. s 5D(1)(a) Talks about factual causation, in order to establish the factual causation, we need to show the "necessary condition requirement", what is formerly called the "but for" test March v E& MH Stramare; Strong v Woolworths s 5D(1)(b) Scope of Liability: consider remoteness, which includes policy, reasonable foreseeability, common sense, eggshell skull rule, and novus actus interveniens s 5D(2) Exceptional case if you cannot get over the hurdle of 5D(1), need to include the reason why and whether it is reasonable to impose liability on the defendant. s 5D(3)(a) The test of what the plaintiff would have done is subjective.