Elements of Negligence - PowerPoint

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					INTRODUCTION TO
      LAW
    LAW1101
           Week 7
    Module 6: Torts - Part 2
http://www.abc.net.au/rn/talks/8.30/lawrpt/audio/la
            wrpt_03092002_2856.ram




                                                      1
              This Week
 VicariousLiability
 Negligent Misstatement

 Defamation

 Conversion

 Detinue

 Nuisance




                           2
Summary of Elements of Negligence
  Elements
1. Duty of care
    Reasonable foreseeability
    Proximity
2. Breach of Duty of Care
    Risk of harm
    Seriousness of harm
    Burden of eliminating the risk
    Utility of the conduct
3. Causation
    “but for” test
4. Remoteness
    Reasonable foreseeability of the kind or type of damage
   Defences
     Contributory negligence
     Voluntary assumption of the risk
                                                              3
          Vicarious Liability
 Definition
 Employers responsible for
  the tortious acts of
  employees in the normal
  course of their
  employement.
 Employee or independent
  contractor?
 Some tests


                                4
       Professional Negligence
 To third parties R E Hill & Associates
  v Van Erp
 Negligent Misstatement

 Earlier cases
  Hedley Byrne v Heller
  MLC v Evatt
 Shaddock& Associates Pty Ltd v
 Parramatta City Council

                                           5
          Elements of Negligent
              Misstatement
 Person gives information or advice
 On a serious matter
 Realising that advice may be relied upon
 Where the best information or advice is
  sought
 It is reasonable for the other party to rely on
  it
 And it is the basis of action
THEN a Duty of Care Exists
The remaining elements of neglignce must also
  exist
     Breach
     Causation
     Damage not too remote.                        6
               An example
   The foreign currency
    loan cases
    Liability of Auditors
   Esanda Finance
    Corporation Ltd v Peat
    Marwick Hungerfords




                             7
              Defamation
 Matter

 Defamatory

 Reference  to the plaintiff
 Publication

 No valid defences




                                8
     Defences to Defamation
 Absolute  privilege
 Truth [and public benefit]

 Protection – fair comment

 Qualified privilege or protection




                                      9
              Conversion
          has a right to possession
 Plaintiff

 Defendant intentionally acts
  inconsistently with that right




                                      10
              Detinue
 Plaintiff has a right to possession
 Plaintiff has made a demand for the
  return of the goods
 Defendant refuses




                                        11
                Nuisance
 Public   nuisance
  Public right infringed
  Plaintiff has a special interest
 Private   nuisance
  Defendant’s use of land
  Substantial and unreasonable
   interference
  With plaintiff's use and enjoyment of
   land

                                           12
                Torts
 Negligence    – including
  professional negligence and
  negligent misstatement
 Defamation
 Detinue
 Conversion
 Nuisance
 Defences
 Vicarious liability


                                13
             Next week
 CONTRACT   LAW




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