The document summarizes key aspects of negligence law in Australia from the textbook "Concise Australian Commercial Law". It outlines the elements required to establish negligence - duty of care, breach of duty, causation and damages. It discusses situations where a duty of care may exist between parties, as well as defenses to negligence claims such as voluntary assumption of risk and contributory negligence. It also examines professional standards of care and vicarious liability of employers for acts of employees.

1. Law of Torts
Negligence Chp 14
The document is a summary of the Concise Australian Commercial Law, 3rd
Edition, Turner, Trone, and Gamble 2015. Material distribution is protected to its
author’s Intellectual Rights.
2015
Ezat
Mohammad
7/28/2015

2. Table of Contents
1.0 [14.30] the law of torts and contract law: 364 ............................................................................................................3
2.0 [14.40] Negligence: P. 364 .........................................................................................................................................3
2.1 [14.40] Scope of the tort of negligence: P.364........................................................................................................3
2.2 [14.40] Civil Liability reform: P. 365........................................................................................................................3
2.3 [14.50] Limitation: P.366.........................................................................................................................................4
3.0 [14.55] Negligence criteria P.367................................................................................................................................4
3.1 [14.57] Duty of care: P. 368 ....................................................................................................................................4
3.1.1 [14.70] Threshold for duty of care: P. 369......................................................................................................4
3.1.2 [14.80] Duty of care situation in unusual satiations: P.369............................................................................4
3.1.3 [14.80] Duty of care situation in specific satiations: P.372.............................................................................5
3.2 [14.390] breach of duty of care: P. 386 ..................................................................................................................6
3.2.1 [14.420] the two stage process to determine breach: P. 387 ........................................................................6
3.2.2 [14.480] the standard care from professionals- the statutory test: P. 393....................................................6
3.3 [14.500] Damages: P. 393 .......................................................................................................................................6
3.3.1 [14.500] Causation: P. 393..............................................................................................................................6
3.3.2 [14.510] Remoteness of damage: P.396.........................................................................................................7
3.4 [14.550] Defenses to an action in negligence: P. 398.............................................................................................7
3.4.1 [14.560] Contributory Negligence: P. 398.......................................................................................................7
3.4.2 [14.570] Voluntary assumption of risk: P. 399................................................................................................7
3.4.3 [14.600] Torts of strict liability P.403..............................................................................................................7
3.4.4 [14.620] Vicarious Liability: P. 404..................................................................................................................7

3. Law of Torts (Negligence) Chp. 14 P. 363
1.0 [14.30] the law of torts and contract law: 364
Torts: a wrongful act (or, careless behavior) to a right leading to legal liability. Tort law protects general rights
to all public, whereas, contract law protects only the parties engaged.
2.0 [14.40] Negligence: P. 364
2.1 [14.40] Scope of the tort of negligence: P.364
• Damages are recoverable from who fail to perform reasonable care. (Doctors, solicitors, accountants,
financial advisers)
• Cause: Donoghue v Stevenson [1932] AC 562. P.364
2.2 [14.40] Civil Liability reform: P. 365
• Negligence was formed by Civil Liability Act 2002 (NSW)
Civil Law reforms
(General Principles) 5B
S 5b(1) No
negligence unless:
Risk was
forseeable, (risk
was known)
Not insignificant,
and
a reasonable
person would have
taken precautions.
S5b(2) Factors for
the court to
consider:
Probability of
harm
likely seriousness
of harm
cost of taking
precautions
social utility

4. 2.3 [14.50] Limitation: P.366
• Claim for damages can be recovered whether brought in tort, contract, under statue, other.
• Coverage for personnel injury, property damages, economic loss.
• However, not applicable to: recreational activities, professionals (if service provided with reasonable care),
public authorities, volunteers, food donors.
3.0 [14.55] Negligence criteria P.367
3.1 [14.57] Duty of care: P. 368
• (Donoghue V Stevenson [1932] AC 562) P. 368
• “Reasonable forseeability” would a reasonable person have seen that his actions could cause the
damage.
3.1.1 [14.70] Threshold for duty of care: P. 369
• (Donoghue V Stevenson [1932] AC 562) P. 368
• Proximity: “Neighbor principle” persons who are directly affected by your actions, the law to love
your neighbor and must not injure.
3.1.2 [14.80] Duty of care situation in unusual satiations: P.369
• Lirby J in Perre v Apand Pty Ltd (1999) 198 CLR 180, P.396
4-Are there any defences?
Contributory negligence Voluntary assumption of risk
3-If so, Has P suffered damage?
S 5d(1)(a) of Civil Liability Act 2002 (NSW)
Was damage caused by the breach? (BUT FOR TEST)
"Causation"Strong v Woolworths Limited (2012) CLR
182 at [18] P.394
S 5d(1)(B) of Civil Liability Act 2002 (NSW)
Is the Damage too remote? (Resonably forseeability
Test)
Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The
Wagon Mound No 1) [1961] AC 338. P.397
2-If so, Has D Breached that duty of care? Wyong Shire Council v Shirt (1980) 146 CLR 40
Civil Liability Act 2002 (NSW)
Was is forseeable risk?
If Yes, How would a reasonable person in D's position
have responded?
1-Does D owe a duty of care to P?
Reasonable forseeablilty of
Harm(Donoghue V Stevenson
[1932] AC 562) P. 368
Proximity “Neighbor principle”
(Donoghue V Stevenson [1932] AC
562) P. 369
Broader policy considerations

5. • Duty of care can be established on proximity only; for example: “Psychological Harm” in Tame v New
South Wales (20020 211 CLR 317. P. 370
o Would the community regard it as reasonable for a duty of care to exist?
o Is it foreseeable that a reasonable duty of care is owned by the defendant to the plaintiff?
o However, where a person’s acts in good faith and in compliance, he incurs no civil liability in
respect of that action” s95 (5). The Statue of the Community Welfare Act 1972 (SA).
3.1.3 [14.80] Duty of care situation in specific satiations: P.372
1- Was it reasonably forseeable for the wrongdoer that his actions would cause damage to the
persons suffered damage or other potential persons who could suffer the same.
2- Does proximity and neighbourhood exist between the wrongdoer and such a person?
3- If so, is it just and reasonable that the law should impose duty to benifit such potential
person.
• was it Reasonably forseeable to injury?
• is there Proximity?
• Broader policy factors
• Chapman v Hearse [1961] 106 CLR 112. P. 373
Duty of care and negligent acts causing physical harm
• Reasonable forseeability
• limits on proximity; e.g. metal harm for grief as a result of family member death or injury.
• Jaensch v Coffey [1984] HCA 52. P. 373
Duty of care and negligent acts causing mental harm
• Law Limits duty to act (the common law does not impose duty to act e.g. save a person life,
only if there is a positive relationship; e.g. pre-existing relationship of reliance, dependance,
or control).
• Doctors: "Failure to warn"Rogers v Whitaker (1992) 175 CLR 479. P. 375
• Public Authorities: "Duty of care to prevent harm" Nagle v Rottnest Island Authority (1993)
177 CLR 423 AT 430. P. 376
Laibility for Omissions (or failing to act)
• A laibility is refused by court if the laibility is an indeterminate, or unknown, for
indeterminate time and to indeterminate class on the deffendant:
• Caltex Oil (Aust) Pty Ltd v The Dredge "Willemstand" (1976) 136 CLR 529. P. 378
• Perre v Apand Pty Ltd (1999) 198 CLR 180. P. 378
• Johnson Tiles Ltd v Esso Australia Pty Ltd [2003] Aust Torts reports 81-692. P. 379
Negligent acts causing pure economic loss
• there must be a "special relationship", close reliance, and that a Negligent statement may
give rise to action for damages:
• Hedley Byne & Co Ltd v Heller & Partners Ltd [1964] AC 465. P. 381
• Duty extends to supply of information as well as advise:
• Shaddock & Associates Pty Ltd v Parramatta City Council (1981) 150 CLR 225. P. 382
• Third Party e.g. accountacts , auditors and investors:
• the Esanda Finance Crop Ltd v Peat Marwich Hungerfords (1997) 188 CLR 241
Negligent statements causing pure economic loss

6. 3.2 [14.390] breach of duty of care: P. 386
• From the concept of “Reasonable person” Negligence is the omission to do something which a
reasonable person would do:
• Blyth v Birmingham Waterworks Co (1956) 11 Exch 781, 165 ER 1047. P. 386
3.2.1 [14.420] the two stage process to determine breach: P. 387
• Wyong Shire Council v Shirt (1980) 146 CLR 40
• Civil Liability Act 2002 (NSW)
3.2.2 [14.480] the standard care from professionals- the statutory test: P. 393
Civil liability act 2002 (2002), s 50:
1- A professional does not incur liability in negligence if it is established that the profession was acted in a
manner which is accepted widely by other peer professionals in Australia.
2- However, the peer opinion is not relied on.
3- The fact that there are different peer opinions widely accepted that does not prevent the opinion being
relied on.
4- Peer opinion does not require to be universally accepted to be considered widely accepted.
3.3 [14.500] Damages: P. 393
3.3.1 [14.500] Causation: P. 393
• S 5d(1)(a) of Civil Liability Act 2002 (NSW)
• The plaintiff must prove on the balance of probabilities that he/she have suffered damages due to the
defendant’s negligence.
Breach of duty
test
S 5B1
Foreseeable
Risk of Harm:
A risk which
the
defendant
knew or
should have
known.
S 5b2
The
Probabilit
y of the
risk of
injury.
Bolton v
Stone
[1951] AC
850 P. 389
The gravity of
the harm.
a) was the
defendant'
s activity
dangerous
?
Swinton v
Mercantile
Navigation
Co Ltd
(1951) 83
CLR 553
b) was the
plaintiff
and to the
knowledge
susceptibil
e to the
risk?
Paris v
Stepney
Borough
Council
[1951] AC
367. P. 391
The burden of
eliminating the
risk, and
Defednant
can argue:
the
burden to
take
precaution
s to avoid
risk inclues
burden for
to avoid
other
risks.
if risk was
to be
avoid by
doing
something
a different
way does
not it self
rise
liability.
taking
action is
not an
admission
of liability.
the utility of the
defendant's
conduct ( the
gravity of risk is
weighed against
the social value of
the defendant's
conduct)

7. • “But for” Test: would the same damage be caused as to the facts of the case if the negligence of the
defendants was removed from the case? If yes: then the damage is not caused the defendants negligence.
• Applying the “but for” in medical surgery causes, the courts have concluded, that failing to warn a
patient of complications or risk is not a cause of the patient harm: March v E & MH Stramare Pty Ltd
(1991) 171 CLR 506. P. 395
• Better outcome was not enough: Tabet v Gett (2010) 240 CLR 537. P. 396
3.3.2 [14.510] Remoteness of damage: P.396
• “Remoteness of damage” determining the degree to which the defendants negligence is directly
connected or directly caused the damage.
• Or, the damaged caused must be foreseeable by the defendant; meaning that the harm was expected by
the defendant but acted in negligence which has caused the damage.
• That is “First: the damage suffered by the plaintiff must be reasonably foreseeable. Second: or it is
of the same type/kind as the foreseeable damage”
• Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound No 1) [1961] AC
338. P.397
3.4 [14.550] Defenses to an action in negligence: P. 398
• Contributory negligence.
• Voluntary assumption of risk.
3.4.1 [14.560] Contributory Negligence: P. 398
• In the Law reform (Miscellaneous Provisions) Act 1965 (NSW), S (10): P.398
o If a person suffers damage from partly of his own fault and partly of another person/persons, the
damages caused partly by the other parties cannot be eliminated, but the court will reduce the
liability as it sees just and equitable.
• Later on, and as to the Civil Act 2002 (NSW) the court can reduce the plaintiff damages depending of
the degree of contribution that can reach 100%.
• Liftronic Pty v Unver (2001) 179 ALR 321 [33]. P. 399
3.4.2 [14.570] Voluntary assumption of risk: P. 399
• Successful plea of voluntary assumption of risk is a complete defense; meaning
• Civil Liability Act 2003 (Qld), s 48; Civil Law (Wrongs) Act 2002 (ACT), S 96: “No wrong can be done
to a person who consents”
• To repeal the above, the plaintiff must show he/she was not aware of the risk.
• Bathurst Regional Council v Standard & Poor’s, Local Government Financial Services and ABN Amro
[2012] FCA 1200. P. 400
3.4.3 [14.600] Torts of strict liability P.403
• For a Land occupier, tort liability can be attached even if there was no intention or negligence from the
defendant. In circumstances of bringing dangerous substance to carry on a dangerous activity owns a
duty of care to avoid foreseeable injury or damage to the person or other property.
• Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520. P. 403
3.4.4 [14.620] Vicarious Liability: P. 404
• “Vicarious Liability” A person is regarded by the law as liable for acts or omissions of another person.
• E.g. Employer and employee relationship.
• Not liable for an independent contractor; but the “Control Test” must be used: if the employer has legal
authority on the employee what to do and how to do it; this is called “Master-servant relationship”.
Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at [32] P. 404
• Other factors: who pays superannuation, uniform worn, and power of dismissal? Stevens v Bodribb
Sawmilling Co Ltd (1986) 160 CLR 16. P. 404 END