Kinh tế học - Chapter 3: The law of torts

This is the prescribed textbook for your course.Available NOW at your campus bookstore!Copyright © 2000 McGraw-Hill AustraliaThe law of torts Chapter 31Copyright © 2000 McGraw-Hill AustraliaTortsUnintentionalTort of negligenceIntentionalTorts against the person assaultbatteryfalse imprisonmentTorts against chattels trespass against goodsconversion of goodsdetinue2Copyright © 2000 McGraw-Hill AustraliaTortsIntentional (continued)Torts against land trespass against landpublic nuisanceprivate nuisanceTort of defamation3Copyright © 2000 McGraw-Hill AustraliaTortA civil wrong between members of society, as opposed to a criminal wrong. It allows individuals who have suffered as a result of a tort to be compensated.4Copyright © 2000 McGraw-Hill AustraliaTort of negligencePre-requisites that must exist:A duty of care must be owed by one person to another.There must be a breach of that duty of care.Damages (physical or financial) must have been suffered as a result of the breach of duty.5Copyright © 2000 McGraw-Hill AustraliaDuty of careThe “neighbour principle” indicates to whom a duty of care applies, based on: - foreseeability - proximity.6Copyright © 2000 McGraw-Hill AustraliaNeighbour principle “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.” “Who in law is my neighbour? “Persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as to being so affected when directing my mind to the acts or omissions which are called in question.”(Lord Atkin - Donoghue v Stevenson (1932) AC 562 at 580)7Copyright © 2000 McGraw-Hill AustraliaForeseeabilityTest: Would a reasonable person foresee that damage may result from the defendant’s action? i.e. preventable and consequently avoidable8Copyright © 2000 McGraw-Hill AustraliaProximityThere must be some relationship between the parties, namely: - physical proximity - circumstantial proximity (i.e. relationship between parties exist) - causal proximity.9Copyright © 2000 McGraw-Hill AustraliaRecovery of economic lossResulting from:Negligent misstatementLoss flowing from damage to the property of a third partyLoss as a result of a defective product or stereotypeProfessional negligence and economic loss.10Copyright © 2000 McGraw-Hill AustraliaDuty of care appliesNegligent misstatements - in respect to persons being advisedRoad users – to other road usersSchool authorities – to studentsOccupier of premises – to persons entering the premisesBailee of goods – to bailor11Copyright © 2000 McGraw-Hill AustraliaDuty of care appliesSupplier of goods or services – to persons being suppliedLocal Councils – to persons requiring zoning informationTobacco Companies – to potential customersSolicitor holding will – to executor named in willDog owners – to people who may be bitten12Copyright © 2000 McGraw-Hill AustraliaBreach of the duty of careStandard of care expected (i.e. the amount of care that must be taken in particular circumstances) varies, depending on:likelihood of injurygravity of injuryeffort (expense and inconvenience) required to remove the risk of injurysocial utility of the defendant’s conduct (balance risk against measures necessary to eliminate the risk).13Copyright © 2000 McGraw-Hill AustraliaBreach of duty of careDamage must flow from the breach of the duty of care. Causation based on the “but for” test: “But for the conduct of the defendant, would the damage have been suffered?”The type of damage resulting must have been reasonably foreseeable.14Copyright © 2000 McGraw-Hill AustraliaAssessment of damages Financial compensation, to place the plaintiff in the position that they would have been in, had the tort not taken place, is calculated for:Loss of incomeLoss of enjoyment of lifePain and sufferingEconomic lossCost of repairs to damaged propertyMedical expensesMental distress (Duty to mitigate their loss i.e. to reduce the loss as far as possible)15Copyright © 2000 McGraw-Hill AustraliaDefences to a claim in negligenceContributory Negligence: Involves the failure of a plaintiff to take reasonable care to avoid injury. (Damages pro rata)Voluntary Assumption of Risk: Involves the plaintiff voluntarily assuming the risk of negligence. (Complete defence - no damages)16Copyright © 2000 McGraw-Hill AustraliaPrecedents existing for tort of negligenceMotor vehicle accidentsOccupier’s liabilityProduct liability17Copyright © 2000 McGraw-Hill AustraliaMotor vehicle accidents All drivers owe other road users a duty of care.18Copyright © 2000 McGraw-Hill AustraliaInsurance areasPersonal injuryCompulsory third party (included in car registration fee - Qld.)Property damageComprehensive (for all property damage incurred)Third party property insurance (for damage to another person’s property)19Copyright © 2000 McGraw-Hill AustraliaOccupierA person will be regarded as an occupier of premises if they have the occupation and control of land or a structure.An occupier owes a duty of care to all persons (invited and uninvited) entering their premises.20Copyright © 2000 McGraw-Hill AustraliaProduct liabilityDonoghue v Stevenson: The manufacturer owes a duty of care to ensure that the product does not cause harm.Part VA-Trade Practices Act 1974 (Cwlth) Imposes liability on manufacturers and importers of defective goods21Copyright © 2000 McGraw-Hill AustraliaTorts against the personAssault: Occurs when the act of one person causes another to believe that they are going to be physically harmed by the person.Battery: Is the intentional application of force to another person.False imprisonment: Occurs when a person’s freedom of movement is removed so that there is no reasonable means of escape.22Copyright © 2000 McGraw-Hill AustraliaTorts against chattels (i.e. goods)Trespass against goods: A wrongful interference with the enjoyment of the possession of goods.Conversion of goods: An act in relation to a person’s goods that eliminates the owner’s rights to the good.Detinue: The wrongful retention of another person’s goods.23Copyright © 2000 McGraw-Hill AustraliaTorts against landTrespass against land: Where owner’s/ occupier’s consent not obtained before entering. (Direct interference with plaintiff’s possession)Public nuisance: An act that interferes with the enjoyment of a right to which all members of the community are entitled.Private nuisance: An unlawful interference with a person’s use or enjoyment of land, or with a person’s right over or in connection with the land. (Indirect interference with plaintiff’s possession)24Copyright © 2000 McGraw-Hill AustraliaTort of defamation“Defamation” is the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally; or which tends to make them shun or avoid that person.”(Winfield & Jolowicy on Tort p 78)25Copyright © 2000 McGraw-Hill AustraliaElements of the tort of defamationThe statement must be defamatory, i.e. making a statement which can’t be proven to be true, which tends to damage a person’s reputation.Statement must refer to the plaintiff.The statement must be communicated to a third party.The defendant is unable to rely on a valid defence, namely: - consent - justification (or truth) - fair comment - absolute privilege - qualified privilege 26Copyright © 2000 McGraw-Hill AustraliaRemedies for defamatory statementsDamages (Apology may reduce amount)Injunction (To stop publication)27Copyright © 2000 McGraw-Hill AustraliaDoctrine of vicarious liabilityWhere a particular relationship exists (e.g. between employer and employee), a person can be held responsible for the acts or omissions, i.e. torts, of another person.28Copyright © 2000 McGraw-Hill AustraliaVicarious liabilityVicarious liability – employee (told what to do and how to do it – CONTROL TEST)No vicarious liability – independent contractor29Copyright © 2000 McGraw-Hill AustraliaLiabilityEmployer will be vicariously liable for the employee if:acts or omissions are committed in the course of their employmentacts occur while carrying on an authorised task, even if carried out in an unauthorised manner.30Copyright © 2000 McGraw-Hill Australia