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What is tort?
“The word tort in modern law now refers to
conduct which is a civil wrong. In
particular, a tort in the law refers to a
breach of some duty, other than a duty
arising under a contract, which gives rise
to a civil cause of action and for which
compensation may be recoverable…”
What is tort?
Tort derives from Latin word ‘tortus’
meaning ‘twisted’ or ‘crooked’ act.
This word found its way into English
language by French as a general
synonym for ‘wrong’. Tort means
‘civil wrong’ for which the remedy is
common law action for damages.
How does tort differ from
contract?
• Tort law protects
general rights
enjoyed by all
individuals
• Such rights are
imposed by law on
individuals
• Action in tort law
may exist
independent of any
contractual
relationship.
• Contract law is
concerned with parties
right to have a
contractual promise
performed.
• Such rights created by
parties themselves
• Both tort and contract
laws aim to compensate
the innocent party for
their loss/injury
• Both tort and contract
laws have primarily been
How does tort differ from crime?
Tort law
1. Plaintiff must prove the
case on the balance of
probability
2. Plaintiff initiates the
action in his/her name
3. Tort law is concerned
with compensation to
plaintiff for his/her
injury
Criminal law
• Crown proves case beyond
reasonable doubt
• An action is brought
against the alleged
offender in the name of
State (Rex; Regina)
• The offender receives
criminal penalty
• Victims of crime may
apply of compensation
under The Victims of
Crime Compensation Act
Sorts of torts
•
•
•
•
•
•
Negligence
Defamation
Trespass: to person or property
Nuisance
Passing off: unfair competition
Interference with contractual relations
Negligence
In strict legal analysis negligence means more
than heedless or careless conduct, whether in
omissions or commission: it properly connotes
the complex concept of duty, breach and
damage thereby suffered by the person to
whom the duty was owing.
Lord Wright in Lochgelly Iron and Coal Co Ltd –vM’Mullen [1934] AC 1 at 25
Negligence
The cardinal principle of negligence is that
the party complained of should owe to the
party complaining a duty to take care
and the party complaining should be able
to prove that he [she] has suffered
damage as a consequence of a breach of
that duty.
Donoghue -v- Stevenson [1932] AC 562
Negligence
NO
• Does D owe a duty of care to P?
YES
• Has D breached the duty of care?
NO
YES
• Has D’s breach caused damage to P?
NO
YES
NO
• Is P’s damage too remote?
YES
D is liable in negligence
Does D have a valid defence to refute P’s claim of negligence?
Negligence as a specific tort
Donoghue -v- Stevenson [1932] AC 568
House of Lords
[You must take reasonable care to avoid acts or omissions which you
can reasonable foresee would be likely to injure your neigbour].
Grant-v- AKM [1936] Privy Council
• Initially the claims based on negligence were
restricted to:
– physical injury and injury to property and where
– Injury was the result of faulty manufacture or
repair of goods
• Later on the principle was applied to a variety of
situations and various kinds of injury claims.
Elements of negligence
• Duty of care
• Breach of duty of care
• Damage/injury
• Causal connection between the
breach of duty of care and
damage
Duty of care
Duty may be defined as an
obligation, recognised by
law, to avoid conduct fraught
with unreasonable risk of
danger to others.
Duty of care
Duty of care is not a “moral
obligation, or social responsibility,
but a legal duty of care, breach of
which might result in liability of
damages…”
Gleeson CJ in Agar –v- Hyde (2000) 201 CLR 552
at 560
Determinant of duty of care
• Reasonable foreseeability
• Proximity
• Public policy
“How wide the sphere of the duty of care in
negligence is to be laid depends ultimately on
the courts’ assessment of the demands of the
society for protection from the carelessness of
others”
Lord Pearce in Hedley Byrne –v- Heller
[1964] AC 465
Reasonable foreseeability
The plaintiff must be able to show that:
• he/she belonged to that class of persons whom the
defendant should have regarded as being at risk
though the precise loss/injury/damage actually
suffered by the plaintiff may not have been
foreseeable• all that is required that it was reasonably
foreseeable that the class of people, of whom the
plaintiff was one, could have suffered some
loss/injury as a result of defendant’s acts or
omissions. Chapman –v Hearse (1961) 106 CLR 112
The concept of proximity
“[The] world of commerce would come to a
halt and ordinary life would become
intolerable if the law imposed a duty on
all persons at all times to refrain from
any conduct which might foreseeably
cause detriment to another.”
Widgery J., Weller &Co -v- Foot and
Mouth Disease [1966]
What is proximity?
“It involves the notion of nearness or
closeness and embraces physical
proximity...circumstantial
proximity... and what may be
referred to as causal proximity.”
Recent approach of the High Court to
establish the question of duty of care
Proximity is no longer accepted as the
defining test to establish whether there is
duty of care in a particular case.
Perre-v-Apand (1999) 198 CLR 180
Modbury Triangle Shopping Centre –vAnzil (2000) 205 CLR 254
Approaching the
question of duty of care
• Consider firstly whether the case falls within
the established category ;
• If no, consider whether the plaintiff’s harm was
reasonably foreseeable result of the defendant’s
act or omission. If no, duty of care is not owed;
• If foreseeability test is satisfied, consider cases
where the courts have held that the duty of care
does or does not exist.
McHugh J. in Perre –v- Apand (1999) 164 ALR 606
Standard of care of a
professional person
‘...the test is the standard of the ordinary
skilled man exercising and professing to
have that special skill’ (Bolam test)
What standard of care is expected of a
professional person?
• The standard of care expected of a professional
person is of a reasonable professional person in
the circumstances of the defendant.
• “The general test for a reasonable standard of
care owed by a professional person is that of an
ordinary competent practitioner exercising
ordinary professional skill” (Bolam –v – Friern
Hospital Management Committee [1957].
Roger -v- Whitakar (1992) 175 CLR 479
[Dr Roger was held liable for Mrs Whitakar’s
injury]
Standard of care of a
professional person
“The ultimate question...is not whether the
defendant’s accords with the practices of his [her]
profession.... but whether it conforms to the
standard of reasonable care demanded by the law.
That is a question for the court and the duty of
deciding it cannot be delegated to any profession
or group in the community” (King CJ F-v-R
(1983) 33 SASR 189)
• Mercer –v- Commissioner for Road Transport and
Tramways (NSW) (1936) 56 CLR 580
Damage
Merely creating a risk of injury is not
actionable; injury must have become
actual.
• Physical injury
• Nervous shock
• Economic loss
• Damage to property
Defences to a case of negligence
•
•
•
•
•
Contributory negligence
Voluntary assumption of risk
Disclaimer clauses
Inevitable accident
Denial of negligence