LawsW3Tortofnegligence过失侵权

LawsW3Tortofnegligence过失侵权
W3 Tort of negligence 过失侵权
Issue: Has _____ committed the tort of negligence against _______?
Laws
A person commits the tort of negligence if they carelessly cause harm to another person.
（解释相关法律定义）
To successfully sue a Def in the tort of negligence, a plaintiff must establish 3 things:
1. The defendant owes the plaintiff a duty of care, and
2. The defendant breaches that duty of care, and
3. The defendant’s b reach causes the plaintiff to suffer reasonably foreseeable harm.
Requirement 1: Duty of care
The onus is on the Plaintiff to establish the existence of the duty of care.
Donoghue v Stevenson [1932] established the ‘Neighbourhood principle’ that identified a number of relationships which, by law, automatically owe a duty of care.
o Established categories选出案例相关人
1. Motorists owe a duty of care to other road users;
2. Doctors owe a duty of care to their patients;
3. Accountants owe a duty of care to clients;
4. Bankers owe a duty of care to their clients;
5. Occupiers owe a duty of care to people who come onto their premises;
6. Manufacturers of products owe a duty of care to their customers;
7. Employers owe a duty of care to their employees;
A manufacturer of products owes a duty of care to their customers
Case: Donoghue v Stevenson [1932] AC 562
Stevenson, as the manufacturer of the ginger beer (an article intended for consumption and contained in a container that prevented inspection) owed a duty to Donoghue as the consumer of the article to take care that there was no noxious element in the goods. The court decided that manufacturer owed the Plaintiff a duty of care in negligence.
An occupier of premises owes a duty of care to all persons entering the premises to ensure that the premises are safe Case: Australian Safeway Stores Pty Ltd v Zaluzna (1987)
Where the danger is unnatural or hidden, a public authority will owe a duty of care to warn of foreseeable risks to persons using the area as intended by the public authority. （公共当局：政府、机构等。

管理公共设施：公园，道路等）
1. Duty of care to warn of hidden risks有责任提醒人们隐藏风险
Nagle v Rottnest Island Authority (1993) 写着游泳区，隐藏风险不明显
Swain v Waverley (2005)
2. The danger is obvious, the public authority is entitled to assume that most people will
take reasonable care for their own safety. 风险显而易见，当局假定人们都知道。

Romeo v Conservation Commission (1998) Vairy v Wyong Shire Council (2005)
若Not Established categories
2 tests must then be satisfied
Test1: Was it reasonably foreseeable that the Defen dant’s
conduct could cause harm to someone in the Plaintiff’s position?
See: Donoghue v Stevenson(neighbourhood principle:You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.) Test 2: Are the salient features of the case consistent with the existence of a duty of care?选出相关
-Relationship between parties;
-Control;
-Relative knowledge;
-Experience;
-Vulnerability and reliance;
-Personal responsibility
若Negligent Misstatement（若存在过失错误陈述，继续完成步骤2.3）
提供建议
When a person is giving advice to another, they might owe a duty of care to the other person if:
1.The advice is of a business or serious nature; and
2.They know or should know that the other person intends to rely on the advice;
and
3.It is reasonable in the circumstances for the other person to rely on the advice. （若某人声称具有特殊技能，则reasonableness的要求更容易满足）
CASE: Hedley Byrne v Heller (1964)Rentokill v Channon (1990) 第三方受伤
A person giving advice will ONLY owe a duty of care to a third party if:
1.They knew or should have known that the information or advice would be
communicated by their client to the 3rd
party;
2.The information or advice was likely to lead the 3rd
party to enter into a particular type
of transaction; and
3.It was likely that the 3rd
party would suffer financial loss if they enter into that
transaction and the advice or information is wrong. See: Esanda Finance v Peat Marwick (1997)
Requirement 2: Breach of duty(s9 Civil Liability Act)
Section 9(1): A defendant breaches their duty of care if:
1. The risk was foreseeable (that is, it is a risk that they knew about or ought
reasonably to have known about);
2. The risk was not insignificant; and
3. In the circumstances, a reasonable person in their position would have
taken the precautions.
Section 9(2): To determine what a reasonable person would do, the Court will take into account:
(a) The probability of harm.
Case: Bolton v Stone [1951] The cricket ball hit Stone. Stone claimed damages. The court decided that CCC did not breach their duty of care to Stone because a reasonable person would not have taken precautions given the very low risk of injury.
(b) The likely seriousness of the harm.
Case: Paris v Stepney Borough Council [1950]
(c) The burden of taking precautions.
Case: Bolton v Stone [1951]在application里结合使用in Bolton v stone The
probability of harm was low and burden of taking precautions was high, so he did not breach the duty
(d) The social utility of the defendant’s activity.
Case: Watt v Hertfordshire County Council [1954]
Requirement 3: Harm Caused by Breach (s11 Civil Liability Act):
The defendant is only responsible for the harm if:
1.The breach of duty was a necessary condition of the occurrence of the harm –the
careless act caused, either directly or indirectly, the harm (“factual causation
test”) –the “but for” test
Case: Yates v Jones [1990] But for Jones’s carelessness, would Yates have become addicted to heroin? The court decided that the heroin addiction was not caused by the car accident but was rather ca used by the actions of Yates’s friend
考虑是否有material contribution test
Occurs if the Def’s actions/inactions increase the risk of injury and the risk eventuates, whether or not other factors also contributed
See: Chappel v Hart (1998)See: Cook v ACT Racing Club Inc and the AJC Inc [2001]
2. It is appropriate for the scope of the liabi lity (“scope of liability test”) of the person in breach to extend to the harm so caused.考虑是否有material contribution test
Case: Overseas Tankships v Morts [1961] and
Schneider v Smith & Anor (2016)
Defences：选择自愿承担还是共同分摊Voluntary Assumption of Risk/Contributory Negligence
自愿承担：If it can be shown that the plaintiff voluntarily
assumed the risk, the defendant may be relieved of all liability.
See: Agar v Hyde(2000)
共同分摊：If it can be established that the Plaintiff contributed in some way to their own loss or injury, liability will be apportioned between the Defendant and the Plaintiff. Case: Ingram v Britten [1994] , Manley v Alexander。