Negligent

Chapter 8 and 9

Tort vs Contract

Both can result in a civil action where remedies are compensation

Some actions can result in concurrent liability (where contractual duty is one
of reasonable care)
o Liability can arise in both tort and contract for the same conduct
o Doctor who negligently treat a patient
Implied term in contract to take reasonable care
May have broken their duty of care in regards to their patient
BUT must show duty of care existed and actual damage was suffered as a
result of breach

Contract
Concerned with enforcement of promises and compensation

Tort

Concerned with protection of rights.

Mostly derived from case law
Include the right to protection of ones person
o Reputation
o Property
o Business
o Economic interests
Provides remedies in the form of damages as compensation for:
o Direct financial consequences : loss of wages earning, profits and
expenses incurred as a result of the loss or injury
o Non-pecuniary consequences:
Pain and suffering
Loss of some amenity
Not being able to engage in a pleasurable activity

To Establish Negligence (page 179-203)

1. There must exist an identifiable duty of care between the parties
The plaintiff was owed a duty of care
2. The standard of care expected must be able to be identified
The required standard of care was breached
3. There must have been resulting and measurable damage
The breached caused the damage which was of a kind that was a
foreseeable consequence of the breach

Duty of Care
The duty owed by one person to another and based on the relationship between
them, that is, foreseeable risk of injury and establishing the satisfaction of the
judge.

There must be a foreseeability

Careless acts are not necessarily amount to negligence

A person is only liable for the harm that is a foreseeable consequence of their
actions that is their failure to exercise reasonable case and skill

There must be proximity

Physical, circumstantial or causal
Donoghue v Stevenson (1932) AC 562

Neighbour principle The principle is that one must take reasonable care to
avoid acts or omissions that could reasonably be foreseen as likely to injure
one's neighbour

Reasonable reliance

There is NO breach in duty where physical haem or loss arises as a result of a

failure to act liability for omission involves the imposition of a duty to take
positive action
There is no duty to effect a rescue even when the defendant has the means
to affect a rescue

Positive duty may be imposed where a pre-existing protective relationship exists. It

is more than just a careless action

Parent/child
Employer/ employee
Occupier of premises

Determining of Breach

Consumer protection
A person is Consumer if:

The person acquires good or services values less than $40,000

The person acquires goods or services of a kind ordinarily acquired for
personal, domestic or household use (of any value)
The person acquires a commercial road vehicle (of any value)
The goods were not acquired for resupply, or for use or transformation in
trade or commerce

Property
Ownership vs Possession
Acquiring Ownership

By purchase
By gift
By will/ intestacy
Possessing abandoned property

Type of property
Real property

Definition of real property and fixture Page 883

Land
Fixture

Personal property/ chattels

Intellectual property

Finder rights

Business structure