Negligence: THE LAW Oftorts

NEGLIGENCE
THE LA W O FT O R T S
THE NATURE OF TORTS
• A tort is a civil wrong
• The law of torts deals with the rights and

obligations people owe to others and the
infringement of these rights and obligations
• The purpose of the law of torts is to provide

compensation or damages to the people
whose rights have been infringed.
LAW OF TORTS
• Torts are separated into categories and

include:
• Negligence
• Defamation
• Nuisance
• Trespass
NEGLIGENCE
• Negligence is defined as
… ?
NEGLIGENCE
• Negligence is defined as a failure to take

reasonable c are.
• A person is obliged to take reasonable care in

regard to other people, where it is reasonably
foreseeable that other people could be harmed
by their actions or omissions.
NEGLIGENCE
• When bringing an action for negligence it must

be
proved that:
• The person who was negligent owed a duty of

care
to the person injured,
• The duty of c are was breached and
• The breach of duty of c are caused harm.

NEGLIGENCE
• So, what does Donohue v. Stevenson (1932)

and Grant v. Australian Knitting Mills (1936)
have to do with the tort of negligence?
NEGLIGENCE
• The law of negligence has grown to cover a

range of areas where people must take
reasonable care so that their acts or omissions
do not harm others.
• What are some areas you can think of where

the law of negligence would apply?
NEGLIGENCE
• So, if I believe someone has been negligent

toward
me, what do I need to do?
• In small groups, answer the following:

• if I believe someone is negligent toward me, do I
take action, or do the police? What is this
called?
• When taking civil action for negligence, what 3 things
need to be present?
You have 6 mins for this task.

NEGLIGENCE
if I believe someone is negligent toward me, do I

take action, or do the police? What is this called?
• The plaintiff brings the civil action

against the defendant. This is called
the ‘burden of proof’ as the burden
(or the task, the job, the responsibility)
falls on me to prove the defendant
caused me a loss or damage.
NEGLIGENCE
• When taking civil action for negligence, what 3

things need to be present?
• I need to prove a duty of care exists,
• There was a breach of that duty of

care
• And that I suffered injury, harm of loss

as a result of that duty of care
DEFENCES TO NEGLIGENCE
• The defendant can claim the plaintiff has not

established the three elements of negligence.
The defendant will try to prove that a duty was
not owed, or a duty was not breached or that
the damage or injury was too remote from the
defendant’s act or omission.
DEFENCES TO NEGLIGENCE
• There are 2 defences to negligence:
• Contributory negligence
• Voluntary assumption of risk
• What definitions can you come up with to explain

these
defences?
YOUR TURN…
• Form your groups appointed by Mrs Fleming
• Appoint a scribe (someone to write answers

down)
• Appoint a spokesperson who will report back

to class
• Complete the following c ase studies

STOCKS & ANOR V. BALDWIN, NSW
COURT OF APPEAL
• The pedestrian sued the driver of the car that hit
and injured him. In the original case, the court
heard a pedestrian walked across stationary
traffic and without pausing, walked into the path
of the defendant’s car.
The driver had been travelling at 30-35km/h in a
kerbside lane on a wet, murky afternoon.
The court found the driver was 60% to blame
because he should have been looking out for
pedestrians who might be doing foolish things. In
other words, it was reasonably forseeable a
pedestrian might walk out into the path of his
car. The defendant did not agree and
appealed. The court of appeal dismissed the
appeal.
• What are the main elements that must be proved
in
a case of negligence?
• Who is the neighbour in this case?
• Who is the plaintiff and who is the defendant in
the
original case?
• Do you think the injury caused to the plaintiff
was reasonable foreseeable? Give reasons.
• Do you think that a duty of care was owed to
the
pedestrian by the driver? Explain.
BOURHILL V. YOUNG
• Mrs Bourhill was getting off a tram when a

motorcyclist sped past on the other side. She heard
the c ollision between the motorcycle and a car. Mrs
Bourhill was 8 mths pregnant and the collision
occurred 15m from Mrs Bourhill. She walked
around the tram and saw the aftermath. There was
blood everywhere and the motorcyclist was dead.
She suffered shock and as a result had a miscarriage.
Mrs Bourhill sued the estate of the motorcyclist
claiming his negligence had caused her shock. The
court ruled Mrs Bourhill had been protected by the
tram and didn’t see the a ccident. It was held the
motorcyclist did not owe her a duty of care as he
could not have foreseen the potential danger and the
damage was too remote from the negligent act.
• Why did Mrs Bourhill claim that the motorcyclist
had
been negligent?
• What is the meaning of ‘remoteness of damage’?
• What did the court decide in this case?
• What were the reasons for the decision in this

case?
VICTIM OF A FALLEN TREE
• Mrs Harper was camping at a nature reserve and

was badly injured when a 28m tree fell on her. A
County court judge found the Dept of Natural
resources and environment had breached their
duty of care by failing to put up signs warning of
the danger of hazardous trees. The judge ruled
the injuries were a foreseeable consequence of
the defendant’s breach of duty.
The Victorian court of appeal reversed the
decision.
• Why did the court of appeal reverse the decision?
• What defence/s could apply here?

Negligence: THE LAW Oftorts

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Negligence: THE LAW Oftorts

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NEGLIGENCE

• A tort is a civil wrong

• The law of torts deals with the rights and

• The purpose of the law of torts is to provide

• Torts are separated into categories and

• Negligence is defined as a failure to take

• A person is obliged to take reasonable care in

• When bringing an action for negligence it must

• The person who was negligent owed a duty of

• The duty of c are was breached and

• The breach of duty of c are caused harm.

• So, what does Donohue v. Stevenson (1932)

• The law of negligence has grown to cover a

• What are some areas you can think of where

• So, if I believe someone has been negligent

• In small groups, answer the following:

You have 6 mins for this task.

if I believe someone is negligent toward me, do I

• The plaintiff brings the civil action

• When taking civil action for negligence, what 3

• I need to prove a duty of care exists,

• There was a breach of that duty of

• And that I suffered injury, harm of loss

• The defendant can claim the plaintiff has not

• There are 2 defences to negligence:

• Voluntary assumption of risk

• What definitions can you come up with to explain

• Form your groups appointed by Mrs Fleming

• Appoint a scribe (someone to write answers

• Appoint a spokesperson who will report back

• Complete the following c ase studies

• Mrs Bourhill was getting off a tram when a

• What is the meaning of ‘remoteness of damage’?

• What did the court decide in this case?

• What were the reasons for the decision in this

• Mrs Harper was camping at a nature reserve and

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