TORTS Negligence, Vicarious Liability, Nuisance, and Defamation NEGLIGENCE …………………………………………………………………... 1 - 4 VICARIOUS LIABILITY………………………………………………………....5 - 6 NUISANCE……………………………………………………………………….. 7 - 9 DEFAMATION…………………………………………………………………….10 - 13 NEGLIGENCE NOTES DUTY Physical Harm It is reasonably foreseeable that physical harm would occur → Tabet v Gett (2010) 240 CLR 537 ​ Established Duty Category (ESD) ➢ Road/road user (Cook v Cook) ➢ Occupier/Invitee (Neindorf v Junkovic) ​ ​ ​ ➢ Employer/employee (Koehler v Cerebus) ➢ Licensee/Third Party (Club Italia v Richie) ​ ​ ➢ Lawyer/Client (Giannarelli v Wraith) ➢ Parent/Third Party (Smith v Leurs) ​ ​ ​ ​ ➢ Doctor/Patient (Rogers v Whitaker) ➢ Parent/Child (Robinson v Swincer) ​ ​ ​ ​ ➢ Manufacturer/user (Donoghue v Stevenson) ➢ School/Student (Cth v Introvigne) ​ ​ ​ ​ ➢ Prison authority/Prisoner (NSW v Buidoso) ​ ​ Mental Harm Begin with Section 53 1. Were they injured or at the scene (or in recognised illness) or is a parent/spouse/partner/child ​ ​ ​ ​ of victim and; 2. Do they suffer from recognised psychiatric illness. Next see legal test in Section 33(1) ➢ Is it reasonably foreseeable that a person of normal fortitude would suffer mental harm these circumstances? Relevant factors a. Whether or not the mental harm was suffered as the result of a sudden shock b. Whether the plaintiff, at the scene, a person being killed, injured or put in peril c. The nature of the relationship between the plaintiff and any person killed, injured or put in peril. d. Whether or not here was a pre-existing relationship between the plaintiff and the defendant This DOES NOT apply when the defendant knows of the plaintiffs mental instability. BREACH General Standard Established in s31 of the Civil Liability Act 1936 (SA) (CLA) a standard of care must be that of a ​ ​ ​ reasonable person, and to determine this the court will use the calculus of negligence outlined in s32 of the CLA. Pursuant to s32(1), ____ was negligent because the risk was foreseeable (s32(1)(a)), and ​ ​ the risk was not insignificant (s32(1)(b)). A reasonable person would likely follow ___ . In failing to do so, ____ has breached his duty of care Sections to use: ➢ s31/32: General standard test (use s31 ➢ s20: Occupier (if the location/premises as definition); OR caused the injury, use this) ➢ s40: Special skill ➢ Rogers v Whitaker: Failure to advise ➢ s41: Professional as a medical practitioner (if it’s bad treatment, use s41) 1 DEFENCES Contributory Negligence Important to remember: ➢ Plaintiff’s failure to meet standard of care for personal protection ➢ Plaintiff’s failure must contribute to the injury (along with the defendant’s negligence) Standard of Care ➢ s44(1) CLA – The principles that are applicable in determining whether a person has been negligent also apply in determining whether a person who suffered harm (the plaintiff) has ​ ​ been contributorily negligent. Process 1. Calculate damages plaintiff would be entitled to in the absence of contributory negligence (s50(2) CLA) ​ ​ 2. Reduce the damages by the amount that is ‘just and equitable’ taking into account relative contribution of the plaintiff and the defendant to the harm (s50(3)(a) and (b) CLA) ​ ​ a. Say: “according to s50(3)(a) and s50(3)(b) CLA the damages will be reduced” ​ ​ 3. Consider whether to make ‘fixed statutory reductions’ (s50(4), (5) of the CLA) a. ss46, 47 and 48: Fixed reduction for intoxication 25% or 50% depending on intoxication level b. ss49: Fixed reduction for failure to wear a seatbelt, safety helmet (if on motorcycle or bicycle) or failure to sit in passenger compartment – 25% reduction. Volenti Non Fit Injuria (Voluntary assumption of risk) The defence has three elements: 1. The plaintiff must have knowledge of the facts creating the risk (Insurance Commissioner v ​ Joyce (1948) 77 CLR 39) ​ 2. The plaintiff must have understood and appreciated the risk created by the particular facts 3. The plaintiff must have voluntarily undertaken the risk. (Imperial Chemicals v Shatwell[1965] ​ ​ ​ ​ AC 656) Section 36, 37, 28: Obvious risk Section 39: Inherent risk → A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk. Illegality ➢ The plaintiff is engaged in conduct at the amount of an indictable offence at the time of the incident. ➢ Now largely governed by statute. s43 Civil Liability Act 1936 (SA) excludes liability if the ​ ​ court is satisfied: ○ Beyond reasonable doubt that the injury/loss was sustained whilst the plaintiff was engaged in conduct amounting to an indictable offence, and ○ on the balance of probabilities that the injured person’s conduct contributed materially to the risk of the injury 4 .