Commercial Law

Law of Torts

Week 5 Lecture

BUS107 Commercial Law

• What does Scottish industrialist

Andrew Carnegie mean when he says:

Small Group Discussion

Do your duty and a little more and

the future will take care of itself

On 7 December 2012, Jacintha Saldanha, a nurse from India working in a London hospital was found dead in her nurse’s quarters. She had hanged herself. Three days prior, two Australian radio show hosts made a prank call to Jacintha impersonating the Queen and Prince Charles.

They asked to speak to the Princess of Cambridge who was a patient at the hospital. Jacintha transferred the call to another nurse who spoke to the pranksters for around two minutes.

In groups, describe the nature of the relationship between Jacintha and the radio hosts.

Small Group Challenge

What is a duty of care?

• Our words and actions can have deep and lasting impact on other people

• Others can suffer injury because of your carelessness

• An important relationship arises between you and anyone else who could be injured by your actions

• In circumstances where you should be able to predict that someone else could be injured by your actions you owe that person a duty to refrain from those actions

What’s in the bottle?

Who is your neighbour?

When you are about to do something …

… or not do something …

… any person that may be affected …

… that you should consider their wellbeing

before you act …

… is your neighbour

: see Donoghue v Stevenson

Recognised duties of care

• Authorities – government, police

• Builders – to clients, homeowners

• Drivers – to passengers, road users

• Manufacturers – to consumers

• Advisers – to those relying on advice

• Occupiers – to visitors, tenants

But I didn’t realise lighting firecrackers in the

schoolyard would burn the children. Honestly!

Well … you should have

Why?

Because a reasonable person would have

A what?

A reasonable person is a typical community

member with the common sense of that community

• Do you agree with German statesman

Johann Wolfgang von Goethe when he

says:

Small Group Discussion

Precaution is better than cure

On 24 March 2015, Germanwings co-pilot Andreas Lubitz

intentionally crashed a plane in the French Alps killing all

144 passengers and 6 crew members. According to

French and German prosecutors, Lubitz locked the pilot

out of the cockpit after he left to use the toilet.

In response to the incident, aviation authorities in

Australia implemented new regulations that require at

least two authorised personnel in the cockpit at all times.

In groups, consider whether or not the new

regulations will be an effective precaution to stop a

similar incident from happening again.

Small Group Challenge

Calculating Risk

• Every action we take carries some degree of potential risk to ourselves and to others

• Risk can be categorised according to seriousness: insignificant, low, medium, high, extreme

• Risk can be determined by assessing the likelihood of occurrence and the seriousness of the consequences

Standard of Care

• We are expected to take reasonable

precautions to prevent our actions from

causing injury to other people

• Your actions will fail to meet the standard

of care and breach your duty of care to

your neighbour if the risk of injury was

reasonably forseeable, not insignificant,

and you failed to take reasonable

precautions: see Civil Liability Acts

• What does American poet Ralph Waldo

Emerson mean when he says:

Small Group Discussion

Shallow men believe in luck.

Strong men believe in cause

and effect

On a sunny morning in 1943 a black South African woman and her

young son were out walking in Sophiatown, the slum they lived in

near Johannesburg. A white priest named Trevor Huddleston tipped

his hat towards the woman as he passed, a small but extremely

unconventional gesture of courtesy between two races separated by

apartheid. But the boy never forgot it. To him it suggested that not all

white people were oppressive. He grew up to become an

instrumental activist in the struggle against apartheid and headed

the Truth and Reconciliation Commission. He won the Nobel Peace

Prize in 1984 for his efforts in resolving and ending apartheid.

In groups, discuss whether Trevor Huddleston’s gesture caused

apartheid to end in South Africa.

Small Group Challenge

Causation

• To be recoverable from the defendant

the losses incurred must actually be

caused by the negligent act

• We can ask the question, ‘If the

negligent act had never happened would

the plaintiff have suffered a loss?’

• This is called the ‘but for’ test:

see Cork v Kirby MacLean

Remoteness

• To be recoverable the losses incurred must actually be caused by the negligent act and not be too remote

• This means that the damage must not only be a direct consequence of the negligent act, but must have also been reasonably forseeable: see Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty Ltd

• Would it be reasonably forseeable to a ship’s engineer that furnace oil spilled into the harbour might catch on fire?

• Do you agree with Austrian psychologist

Alfred Adler when he says:

Small Group Discussion

The chief danger in life is that you

may take too many precautions

The Association is shocked by a recent case from New Zealand

where an injured customer successfully sued an adventure tour

business in negligence for the damage done to her spine whilst

performing a bungee jump.

The President of the AAA is worried that adventure services

businesses in Australia that offer high risk activities such as

skydiving, hang gliding, and jet boat cruises may also be exposed to

negligence claims if their customers sustain injuries.

The President of the AAA seeks your advice.

In groups, prepare at least two strategies that AAA can

recommend to its members to protect them from negligence

claims.

Small Group Challenge The Australian Association of Adventurers (AAA) has a serious

problem …

Voluntary Assumption of Risk

• We cannot blame or sue others for

injuries sustained where we have

understood and accepted the risks

involved

• Voluntary assumption of risk is a

complete defence to an action in

negligence

Contributory Negligence

• Where a person is also careless regarding

their own safety the court will apportion the

negligence between the plaintiff and the

defendant and award damages

accordingly: see Imbree v McNeilly

• If you cross the road carelessly and get hit

by a car being driven carelessly then your

own negligence will have contributed to

your damages

Negligent Misstatement

• People providing information such as

professional advisers and information

officers owe a duty of care to those they

advise to avoid making careless

statements that cause harm

Civil Liability Acts

• Claims for personal injuries under the common law of negligence have now been limited by the Civil Liability Acts

• This legislation promotes personal responsibility

• The Civil Liability Acts place a statutory cap on general damages for claims for personal injury and death around $400,000-$500,000