Tort Law

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Tort Law
2013-06-09 22:46:20
tort law pbl

Tort law
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  1. Donoghue v Stevenson
    • tort, negligence, duty of care, manufacturer's duty to consumer, product liability
    • Facts: bought ginger beer, ice-cream, decomposed snail - shock, ill. Sued manufacturer for damages in negligence. Basis - supplied contaminated food causing harm to her.
    • Issue: Did he owe her duty of care?
    • Decision: Yes.
    • Reason: reasonably foreseeable. Knowledge that absence of reasonable care in preparation/putting up of products will result in injury to consumer's life/property - owes duty to consumer to take reasonable care.
  2. Waverley Council v Ferreira
    • tort, negligence, breach of duty of care, standard of care, statutory criteria
    • Facts: child climbed onto roof, sat on skylight, collapsed, died. Father suffered depression.  Not disputed - council owed father duty of care - should have foreseen that parent might suffer mental harm if child died due to this.
    • Issue: Was was content of duty of care owed? Had council acted in accordance with required standard of care?
    • Decision: Under both common law, Civil Liability Act 2002 - defendant must do what a reasonable person in the position of the defendant would do to prevent forseeable harm. Council failed.
    • Reason: Civil Liability Act - person negligent if:
    • a) risk foreseeable
    • b) risk not insignificant
    • c) in circumstances, reasonable person in person's position would have taken precautions.
    • Factors - probability of harm, likelihood of it occurring, likely seriousness of harm, difficulty of preventing, social utility of risk.
  3. Perre v Apand Pty Ltd
    • tort, negligence, duty of care, economic loss
    • Facts: WA govnt prohibited import of potatoes grown anywhere within 20 km of outbreak of potato disease. Perre's neighbour got it from Apand's seeds - knew was prone to disease, unsuitable for seed production.
    • Issue: Perre suffered purely economic harm. Did Apand owe Perre a duty of care?
    • Decision: Yes.
    • Reason: "show that plaintiff & defendant in relationship - plaintiff vulnerable, dependent, powerless; defendant position of control, power".
    • Perre:
    • 1) limited class of identifiable persons who might suffer harm
    • 2) dependent on Apand acting responsibly
    • 3) Apand aware of risk and vulnerability, easily forsee potential harm.
  4. Woolcock Street Investments v CDG
    • tort, negligence, duty of care, purely economic harm, "vulnerability"
    • Facts: CDG - consulting engineers, designed foundations for warehouse. Owner of land decided against doing soil test. Complex sold to Woolcock, issues with building. 
    • Woolcock alleged CDG owed it a duty of care to avoid economic loss - failure to design adequate foundations.
    • Issue: Did CDG owe Woolrock a duty of care?
    • Decision: No.
    • Reason: "Vulnerability" - plaintiff's inability to protect itself. Woolcock could have taken independent steps to avoid risk of harm - e.g. getting building inspected before buying.
  5. Shaddock & Associates v Parramatta City Council
    • tort, negligence, duty of care, liability for misstatements causing purely economic harm
    • Facts: Shaddock phoned council to ask if any road widening proposals, sent certificate from council saying no. Actually wrong. Shaddock suffered financial loss.
    • Issue: Did council owe Shaddock duty of care when providing information?
    • Decision: No duty of care from phone advice - informal. But: duty of care from advice given in written certificate.
    • Reason: No duty to take reasonable care that advice/info correct unless:
    • - knows or ought to know, other relies on him to take such reasonable care
    • - other may act in reliance on advice/info given
  6. Rogers v Whitaker
    • tort; negligence; duty of care; breach of duty of care; relevance of defendant's specialist skills
    • Facts: Whitaker was advised about operation on blind eye, not warned about risks, developed condition, both eyes blind.
    • Issue: Had the defendant, a specialist ophthalmic surgeon, breached the duty of care that he owed his patient?
    • Decision: Yes. His DoC required him to warn patient of possible risks - failed to do so.
  7. Hawkins v Clayton
    • tort; negligence; duty of care; liability of professionals
    • Facts: Clayton - solicitor, did not contact Hawkins until 6 years after Braiser died. House disrepair, worth much less.
    • Issue: Was Clayton liable in negligence for delay in contacting plaintiff?
    • Decision: Yes.
    • Reason: Solicitor has duty to Hawkins to find him without delay, inform. Hawkins entitled to recover damages to compensate for economic loss.
  8. Imbree v McNeilly
    • tort; negligence; breach of duty of care; determining standard of care; contributory negligence
    • Facts: Imbree, adult driver, allowed McNeilly, 16 yr old unlicenced driver to drive, lost control, overturned. Imbree severely injured.
    • Issue: What standard of care was owed by McNeilly as driver of car to his passenger?
    • Was duty of care to be determined by reference to an unqualified and inexperienced driver?
    • Decision: Standard of care properly determined by reference to standard licenced driver.
    • Reason: Well recognised - motorist on highway subject to duty of care to avoid injury to person or property of another.
    • Learner driver owes all other road users duty of care, requires learner to meet same standard of care as any other driver on road.

    • Issue: Had Imbree's own negligence contributed to harm suffered?
    • Decision: Yes, to a significant extent.
    • Reason: In taking reasonable care of his own safety, should have warned McNeilly, instructed him. Failure to do so - negligence, responsible for 30% of consequent harm.
  9. Hole v Hocking
    • tort, negligence, liability for physical harm cased, acceleration of harm
    • Facts: injuries from car accident - brain hemorrhage  damage. Medical evidence - hemorrhage was going to occur at some point anyway.
    • Issue: Was driver liable to pay compensation for hemorrhage suffered by plaintiff?
    • Decision: Plaintiff not entitled to damages for him he would have suffered regardless of driver's negligence.
    • Reason: "Would the harm have occurred but for the defendant's conduct?"
    • Driver cannot be held responsible for something that would have occurred even if he had not been negligent.
    • Plaintiff entitled to damages for period of which hemorrhage accelerated, and for the extent to which hemorrhage was more severe that might otherwise have been.