'Law of Negligence: 1st and 2nd essentials of Negligence Essay\r'

'INTRODUCTION\r\nNegligence is a mathematical function of that branch of Civil virtue known as Tort right. Hence, dis map is a civil wrong. Other civil wrongs intromit nuisance, trespass (to mortal or goods or democracy), deceit, firing off, defamation and so on. This point out willing analyze the tort of failure, and will focus on the get-go two ‘essentials’ need to lay down an betionable font. chitchat 4 will consider the third essential, defences and remedies in Negligence.\r\nOn successful completion of this lecture, you should (within the scope of the course) be able to: * plant the sloppeding of tort\r\n* define negligence\r\n* identify and strike the tether essentials needed to show up a side in negligence * describe and talk approximately the legal principles utilise to chip in calling of take for heedless exertionions * describe and discuss the legal principles utilized to establish calling of put up for neglectful advice * identify the attributes of the hypothetical ‘ liable psyche’ * identify and describe the road maps used to establish disrespect in the streamer of anguish\r\nTORT\r\nA tort is defined as a well-bred wrong ( early(a) than a transgress of guide) in the take shape of a breach of province for which the legal right is an award of impose on _or_ oppresss. Tort Law is quite plain from the Law of Contract. Pentony, Graw, Lennard and Parker (2003, p.367) puts the distinction this way:\r\nâ€Å"The main difference between tort and lead is that the integrity of contract essentially deals with the bring downment of rights that the parties surrender created for themselves through their agreement objet dart the virtue of torts deals with the enforcement of rights that pull in been conferred by virtue †regardless of agreement.”\r\nA tort will impose a barter of some mental on a mortal or persons in certain sh be, and its breach put forward ent itle the complainant to abuses as compensation for the loss or psychic trauma suffered. The rights that the tort law protects intromit the rights of individuals non to have their property, reputation, person or certain interests injured.\r\nNEGLIGENCE\r\nAs no(prenominal)worthy in a higher place, Negligence is but one of a enactment of torts, albeit the most important one. Negligence is the doing of something which a sensitive person would non do or the misfortune to do something that a level-headed person would do, which unwittingly inflicts reproach. That is, the complainant does not have to prove that the suspect either intended his act or its consequences. However, negligence involves more than just cargonless have a bun in the oven, and involves a gang of the concepts of commerce, breach and sufficient lodge in law.\r\nAccordingly, in that location argon 3 essentials which the plaintiff moldiness(prenominal) prove ‘on the balance of probabilitiesà ¢â‚¬â„¢ in order to play along in an action in negligence: 1. the suspect owed the plaintiff a barter of flush;\r\n2. the suspect failed to conform to the inevitable regular of heraldic bearing; and 3. in that respect was a sufficient connection in law between the defendant’s stomach and the damage (i.e. loss or injury) suffered by the plaintiff (note: the tertiary essential is often discussed in the literature on a lower floor the heading of ‘damage’ instead of ‘sufficient connection in law” (for example, the discernment pedigree Law text at scallywag 718). There is petty practical difference between the two equipment casualty for our purposes, and the essentials as listed higher up will be used in our discussions.\r\nThe Law of Negligence has evolved dramatically during the ordinal century. Donoghue v. Stevenson [1932] AC 562 was a addmark case which set down the shew for duty of forethought and held that a manufacturer was l iable to the ultimate consumer for whatever damage or injury arising from the consumption or use of goods which were faulty be stool of the manufacturer’s inattentive act. A further watershed in negligence law in Australia came with pomelo tree and Associates v. Parramatta City Council (1981) one hundred fifty CLR 225, where the motor inn held that those who pass along gratuitous advice could be held liable for any\r\ndamage if the advice was negligent. *\r\n* DUTY OF CARE\r\nThe Defendant must owe the complainant a duty of direction, which the plaintiff must prove on the balance of probabilities. If no duty of safeguard is owed, the Plaintiff’s convey must fail. The judge at the trial has the problem for deciding whether or not a duty of feel for exists as the issue is a move of law having regard to the facts of the case. The method used to sieve the existence of a duty of mete out will differ depending on whether the action involves negligent advice or a negligent act. The test for duty of safeguard in negligent acts is now comparatively complicated, although it evolved from the relatively straightforward test from Donoghue v. Stevenson [1932] AC 562 which was ground on whether or not the injury was sanely foreseeable, and the nearness or law of proximity of the plaintiff to the defendant.\r\nOn the early(a) hand, the test for duty of care in negligent advice developed from Shaddock and Associates v. Parramatta City Council (1981) 150 CLR 225 and is based on whether or not the advice was for a practiced matter which the adviser is expected to give his or her best advice and it was reasonable that the telephone receiver act on the advice. *\r\n* Duty of fretting for Negligent bears *\r\n* Historical backdrop: Doctrine of Reasonable Foreseeability and Proximity The historic test for establishing the existence of a duty of care in actions involving negligent acts was laid down by the brook of churchmans decisiveness in D onoghue v. Stevenson [1932] AC 562. In that decision, the double duty of care elements of ‘reasonable foreseeability’ and ‘proximity’ were express in the ‘ live test’ by sea captain Atkin: *\r\n* The order that you are to love your neighbour becomes in law, you must not injure your neighbour; and the attorney’s question, Who is my neighbour? stimulates a restricted reply. You must take reasonable care to avoid acts or omissions which you stop reasonably foresee would be apparent to injure your neighbour. Who, then in law is my neighbour? The answer seems to be persons who are so most and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question. *\r\n* Hence, for Lord Atkin’s neighbour test, two issues needed to be satisfied: reasonable foreseeability and proximity. For reasonable foreseeability , the question was †would a reasonable person, in the position of the Defendant, have foreseen the likeliness of injury to the Plaintiff arising out of the Defendant’s behaviour? For proximity, the question sess be represent thus †was the proximity (closeness) of the injured Plaintiff much(prenominal)(prenominal) that the Defendant ought to have had him/her in mind when doing the asseverate(a) negligent act?\r\nThe test of reasonable foreseeability is an butt one: that is, what would a reasonable person have foreseen, rather than what the Defendant in truth foresaw at the time. Further, it is not necessary that the exact nature of the loss or injury been foreseen, just the likeliness of injury of the resembling general character as that suffered. Both aspects do not require the Defendant to be actually aware of or know the Plaintiff as an individual †it is sufficient that the plaintiff belong to a class of persons of whom the Defendant ought to have bee n aware when doing the alleged negligent act. *\r\nâ€â€â€â€â€â€â€â€â€â€â€â€â€â€â€â€-\r\n baptistry abridgment instruction †catch argument Law (2008) text, page 695/696 â€â€â€â€â€â€â€â€â€â€â€â€â€â€â€â€-\r\nDonoghue v. Stevenson [1932] AC 562\r\n*\r\n* modern situation * From a number of decisions in the 1990s, the gamy beg moved decidedly forward from a ‘one-best’ onward motion for duty of care for negligent actions and opted for a ‘b way approach’. In particular, the broad(prenominal) judgeship expressed dissatisfaction with ‘proximity’ †â€Å"proximity is no thirster accepted as the defining test [authors’ italics] to establish whether thither is a ‘duty of care’ in any particular case” (Pentony, Graw, Lennard and Parker, 2008, p. 698). As the understand Business Law text (at page 698) notes, the in terest pattern appears to best represent current elevated Court thinking in the establishment of a duty of care: *\r\n* 1. Determine whether or not a reasonably foreseeable essay of injury existed; without reasonable foreseeability, no duty of care bottom of the inning exist. In some cases (especially those involving direct physical molest from the negligent action), reasonable foreseeability may be satisfactory in establishing a duty of care by itself. *\r\n* 2. Determine whether or not the present case is kindred to cases in which a duty of care has already been realised (or is in a family in which a duty of care has been held not to exist). For example, employers are under a general duty of care, which cannot be delegated to others, to provide a safe system of transaction for their employees. The driver of a motor fomite owes a duty of care to pedestrians, other road users and adjacent property owners. Other relationships which may give rise to a duty of care include: employmentals to clients, schools to students and manufacturers to consumers. *\r\n* 3. If the case does not fall into an established category, the Court may look at the important features of the case to establish whether a sufficiently close ‘neighbourhood’ relationship exists to justify a duty of care. In establishing this, the courts can consider the plaintiff’s picture in the matter, along with their reliance on the wrongdoer, the wrongdoer’s assumption of responsibility (if any) and the wrongdoer’s level of control in their actions. *\r\n* 4. Determine whether or not ‘ policy’ considerations exist which may work against the purpose of a duty of care in much(prenominal) circumstances, especially where a defendant mogul otherwise be subjected to financial obligation of an indeterminate finis; such considerations â€Å"allow the courts to weigh competing considerations of legal policy to determine whether, despite proof of f oreseeability and neighbourhood, a duty should not be imposed” (Pentony, Graw, Lennard and Parker, 2003, p. 374). *\r\n* â€â€â€â€â€â€â€â€â€â€â€â€â€â€â€â€- Specific interlingual rendition from the Understanding Business Law (2008) text * â€â€â€â€â€â€â€â€â€â€â€â€â€â€â€â€- Chapter 22, divide 22.22 through 22.29 discusses the coetaneous approach in detail. *\r\n* formerly the facts of the case support the finding that the Defendant owed the Plaintiff a duty of care when doing the alleged negligent act, it does not automatically lead to an award of restoration, as the plaintiff must still prove the other essentials: *\r\n(i) the defendant was in breach of the ideal of Care (refer second Essential downstairs) (ii) there was a able club in Law (refer 3rd Essential, tantalise 4)\r\nDuty of Care for Negligent Advice\r\nThere are clear differences between negligent words and neglig ent acts. According to Chief Justice Gibbs in Shaddock and Associates v. Parramatta City Council (1981) 150 CLR 225, there are three key points of departure, summarized as follows. First, negligent words cannot cause loss by themselves †they cause loss sole(prenominal) because persons act on them in reliance. Second, it is not unwonted for people in social or lax contexts to make statements less carefully than if they were giving advice in business or professionally. Last, words may foreseeability receive such a coverage or circulation that the lotion of Donoghue v. Stevenson (i.e. neighbourhood) might lead to many claims for large metres of damages. Accordingly, the High Court in Shaddock developed the next test involving the sideline three questions, all of which must be answered in the affirmative for a duty of care to exist:\r\n1. Was the advice given on a serious matter?\r\n2. Did the speaker documentaryise, or ought he to have realised, that his advice would be ac ted upon? 2. Was it reasonable for the recipient to act on the advice?\r\nâ€â€â€â€â€â€â€â€â€â€â€â€â€â€â€â€-\r\nCase Summary version †Understanding Business Law (2008) text, pages 729-730 â€â€â€â€â€â€â€â€â€â€â€â€â€â€â€â€-\r\nShaddock and Associates v. Parramatta City Council (1981) 150 CLR 225\r\nOnce the facts of the case support the Shaddock tests, it can be concluded that the adviser owed the plaintiff a duty of care. However, such a finding does not automatically lead to an award of damages, as the plaintiff must still prove the other essentials:\r\n(i) the defendant was in breach of the Standard of Care (refer 2nd Essential below) (ii) there was a Sufficient Connection in Law (refer 3rd Essential, talk 4).\r\n* come apart OF STANDARD OF CARE\r\nGiven that a duty of care is owed, then how much care has to be exercised? The defendant has to take reasonable care, that is, to act as a reasonable person would have in the circumstances. The ‘reasonable person’ is not a real person †merely a hypothetical benchmark or device used by the courts, and is deemed to have the following attributes:\r\n1. Intelligence\r\nThere is a trust of sightly intelligence. If a defendant has above fair intelligence, this person is not judged according to above average intelligence. On the other hand, if a person has below average intelligence, this person is judged according to the same banal †the standard for a person of average intelligence.\r\n2. association and Skill\r\nThere is a presumption of a certain level of fellowship and achievement that can reasonably be expected of persons in the position, duty, qualifications or profession of the defendant. The defendant’s actual fellowship and skill are generally irrelevant, as the presumed amount depends on the qualifications the person possesses. For example, drivers must have the skill of a competent driver, and people in a trade, profession or business are mensural by standards of knowledge and skill which one can reasonably expect in the trade, profession or business. These standards are set by objectively analysed confederacy standards and not the prevailing standards of the particular profession which may have lagged behind perceived community standards.\r\nIf a person holds out that they have special knowledge or skill not normally associated with the trade, business or profession, then that person will be judged on the basis that he does have these A-one standards. However, if people who have additional expertise do not hold themselves out as having such additional expertise, then they will only be judged by the standards applicable to the trade, business or profession they are practising. There are some exceptions, including minors, who are judged against normal children of the same age. *\r\n* Guidelines as to Breach of Standard of Care The Courts have dev eloped various signposts which may be relevant and useful in find a breach in the standard of care in the circumstances:\r\n* The Probability of Harm\r\n* The serious-mindedness of Possible blemish\r\n* The Costs and Opportunities of reducing or avoiding the try * The\r\nValue of the Defendant’s organise\r\n* Conformity with Established Standards\r\n*\r\n* The Probability of Harm\r\nThe guideline establishes that the great the prospect of defile, the greater the amount of care which has to be taken. That is, the greater the encounter of some kind of harmful injury or loss occurring in the circumstances, the greater the standard of care that would be shown by a reasonable person in their actions and consequently, the greater the prospect of a breach if such reasonable care is not exercised. *\r\nâ€â€â€â€â€â€â€â€â€â€â€â€â€â€â€â€-\r\nCase Summary reading †Understanding Business Law (2008) text, page 709 â€â€â €â€â€â€â€â€â€â€â€â€â€â€â€â€-\r\nBolton v mark [1951] AC 850\r\n*\r\n* The Seriousness of Possible Injury\r\nThe guideline establishes that the more serious the possible consequences of injury, the greater the degree of care which has to be shown. That is, the greater the likelihood that some serious injury will turn in the circumstances, the greater the standard of care that would be shown by a reasonable person in their actions and consequently, the greater the probability of a breach if such reasonable care is not exercised. *\r\nâ€â€â€â€â€â€â€â€â€â€â€â€â€â€â€â€-\r\nCase Summary reading †Understanding Business Law (2008) text, page 708 â€â€â€â€â€â€â€â€â€â€â€â€â€â€â€â€-\r\n capital of France v Stepney Borough Council [1951] AC 367\r\n*\r\n* The Cost and Opportunities of cut back/Avoiding the Risk\r\nThe guideline establishes that when foll ow and difficulty of avoiding adventure is great and the actual risk is small, then there is less likelihood of a breach, and vice versa. That is, if the cost and difficulty of avoiding the risk is small and the actual risk is great, then there is a greater likelihood of a breach if remedial action is not taken.\r\nâ€â€â€â€â€â€â€â€â€â€â€â€â€â€â€â€-\r\nCase Summary reading †Understanding Business Law (2003) text, page 381 â€â€â€â€â€â€â€â€â€â€â€â€â€â€â€â€-\r\nLatimer v AEC Ltd [1953] AC 643 ( slit 16.40)\r\n*\r\nâ€â€â€â€â€â€â€â€â€â€â€â€â€â€â€â€-\r\nCase Summary reading †Understanding Business Law (2008) text, page 712 â€â€â€â€â€â€â€â€â€â€â€â€â€â€â€â€-\r\nHaley v London electricity board [1965] AC 778\r\n*\r\n* The Value of the Defendant’s accept\r\nThe guideline establishes t hat the less the social or stinting value of the defendant’s conduct the greater the likelihood of a breach in the standard of care and vice versa. This of course does not mean that providers of essential services can be careless. The guideline arguably imposes a public policy attribute on the standard of care issue.\r\n* Conformity with established standards\r\nConformity with established standards in any trade or profession is important evidence that reasonable care exercised, and vice versa.\r\nâ€â€â€â€â€â€â€â€â€â€â€â€â€â€â€â€-\r\nCase Summary reading †Understanding Business Law (2008) text, page 714 â€â€â€â€â€â€â€â€â€â€â€â€â€â€â€â€-\r\nDerrick v Cheung (2001) 181 ALR 301\r\nâ€â€â€â€â€â€â€â€â€â€â€â€â€â€â€â€-\r\nCase Summary reading †Understanding Business Law (2008) text, page 715 ( department 22.46) Mercer v Commissioner for Road channelize and Tramways (NSW) (1937) 56 CLR 580\r\nThe standard of care is set by reference to objectively assessed community values. Indeed, just because a defendant follows common practice does not needfully show that he is not negligent as a common practice may be shown by evidence to be itself negligent. *\r\n* â€â€â€â€â€â€â€â€â€â€â€â€â€â€â€â€- tapeing for this lecture from the Understanding Business Law text * â€â€â€â€â€â€â€â€â€â€â€â€â€â€â€â€- Read Chapter 22, regions 22.1 through 22.47.; sections 22.67 through 22.74 *\r\n*\r\n*\r\nSelf test exercises †Lecture 3\r\nMultiple choice questions\r\n1. Which of the following is square(a) of torts?\r\na) includes any civil wrong\r\nb) has an award of damages as the legal remedy\r\nc) does include breaches of contract\r\nd) all of the above\r\ne) both (b) and (c) above\r\n2. Which of the following is not relevant in establ ishing Negligence? a) there was a contractual agreement between the plaintiff and the defendant\r\nb) the defendant failed to show the require standard of care\r\nc) the defendant owed the plaintiff a duty of care\r\nd) the defendant intended to harm the plaintiff\r\ne) both (a) and (d) above\r\n3. The twin tests of reasonable foreseeability and proximity have historically been used to establish a) whether or not a breach in the required extent of care has arisen b) a duty of care for negligent actions\r\nc) that the damage suffered by the plaintiff was not too remote d) the defendant’s liability for damages in tort generally e) none of the above\r\n4. Which of the following is relevant to the contemporary approach to establishing a Duty of Care for negligent conduct? a) determine whether or not a reasonably foreseeable risk of injury existed b) determine whether or not the case before the court is analogous to previous cases in which a duty of care has been found to exist c ) determine whether a sufficiently close ‘neighbourhood’ relationship exists to justify a duty of care d) determine whether or not policy considerations exist which may work against the finding of a duty of care e) all of the above\r\n5. In which of the following is Donoghue v Stevenson [1932] most associated in this unit? a) value of the defendant’s conduct\r\nb) remoteness of loss\r\nc) causation\r\nd) duty of care for negligent acts\r\ne) contributory negligence\r\n6. Under the contemporary approach to establishing a Duty of Care, which of the following relationships would promising give rise to a duty of care? a) Alan, an employer and Bob, an employee of Alan\r\nb) Echo, a driver of a motor vehicle, and Foxtrot, another(prenominal) road user c) Alpha, a doctor, and Bravo, his patient\r\nd) Maker, a manufacturer, and User, a consumer of his products e) all of the above\r\n7. Which of the following is a requirement for establishing duty of care in negligent ad vice from Shaddock v Parramatta City Council (1981)? a) the\r\nadvice must be true and correct\r\nb) it was reasonable for the recipient to act on the advice b) the speaker realised or should have realised that the recipient would act on the advice c) the recipient paid for the advice\r\ne) both (b) and (c)\r\n8. In relation to an action in Negligence, how much care must the defendant have shown in the circumstances to avoid breaching the required standard of care? a) the amount of care a reasonable person would have shown\r\nb) the amount of care the plaintiff would himself have shown c) the amount of care the defendant actually showed\r\nd) the amount of care an ordinary person standing nearby would have shown e) the amount of care a lawyer would have shown in the circumstances\r\n9. In which of the following is Haley v London Electricity Board [1965] most associated in this unit? a) probability of harm\r\nb) seriousness of possible injury\r\nc) be and opportunities of avoiding t he risk\r\nd) value of the defendant’s conduct\r\ne) compliance with established standards\r\n10. In which of the following is Paris v Stepney Borough Council [1951] most associated in this unit? a) probability of harm\r\nb) seriousness of possible injury\r\nc) cost and opportunities of avoiding the risk\r\nd) value of the defendant’s conduct\r\ne) pact with established standards\r\n11. In which of the following is Derrick v Cheung (2001) most associated in this unit? a) probability of harm\r\nb) seriousness of possible injury\r\nc) costs and opportunities of avoiding the risk\r\nd) value of the defendant’s conduct\r\ne) conformity with established standards\r\n12. In which of the following is Bolton v Stone [1951] most associated in this unit? a) probability of harm\r\nb) seriousness of possible injury\r\nc) costs and opportunities of avoiding the risk\r\nd) value of the defendant’s conduct\r\ne) conformity with established standards\r\n*\r\n*\r\n*\r\n * Short Answer promontorys *\r\n* Question 1\r\nIn a negligence case, name and describe one (1) guideline which the court may use to determine whether the required standard of care has been met.\r\nQuestion 2\r\nBriefly explain the significance of the decision in Donoghue v. Stevenson.\r\nQuestion 3\r\nIn the tort of negligent advice, how does the law determine whether the defendant owed the plaintiff a duty of care?\r\nQuestion 4\r\nWho or what is a ‘reasonable person’?\r\nLAW1100D\r\ntutorial 3\r\nQuestion 1\r\nThe WA sevens passes legislation and an industry body is concerned about the adaptation and application of a particular section which states:\r\nâ€Å"no person shall sell or proffer to sell an worthless weapon in a shop.”\r\nUnfortunately, there is no definition of the term ‘offensive weapon’ in the legislation. The industry body’s concern about the possible application of the Act to quaternity of its members (a supermarket, a hobby shop, a cocoa shop proprietor and an antiques shop owner) centres around four possible scenarios:\r\n(i) Would the section gain to a supermarket which gives away a free steak knife for every grease ones palms of goods over $100? (ii) Would the section apply to a hobby shop which sells a plastic miniature gun for $20 to a customer? (iii) Would the section apply to a coffee shop in which a customer drinking coffee at a table also sells a flick-knife for $15 to another customer? (iv) Would the section apply to an antique shop which sells a Napoleonic gymnastic horse sword to a collector for $25,000?\r\nWhat is the likely reading of the statute for each of these scenarios? Use the rules of statutory rendition to support your answer.\r\nQuestion 2\r\nA section of an Act provides as follows:\r\nâ€Å"Where a mortgagee sells land to recover the amount of a loan right on the security of the land and the sales events agreement of the land provides more than the balance of the mortgage, the balance after sale shall go to the person entitled to the property.”\r\n mark owe his land to ABC Bank in make for a loan of $200,000. Mark is unable to hark back the loan, and the ABC Bank (which was given the power of sale by the mortgage document) sold the land to Fred for $250,000. utilise the rules of statutory interpretation, which party gets the balance of $50,000 †is it ABC Bank, Mark or Fred?\r\nQuestion 3\r\nâ€Å"We are told that law is a set of rules that is ultimately enforced in the Courts. One source of law is statute law. To enforce a rule in a statute, the substance of it must be understood. To understand the meaning, the words of the rule must be interpreted. If we are to have authorisation in the law, this interpretation must be ordered case after case.”\r\nReflect on the above statement, and then describe the aids to interpretation provided by the Parliament and the common law statutory interpretation rules used by the Court s. In your answer, discuss whether or not you think these aids to interpretation and rules are sufficient to ensure the consistent interpretation of statutes.\r\n'