Chapter 3 - The law of torts. After reading this chapter, you should be able to do the following: Know why most legal systems have tort law, identify the three kinds of torts, show how tort law relates to criminal law and contract law, understand negligent torts and defenses to claims of negligence.
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Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning Copyright © 2000 McGraw-Hill Australia The law of torts Chapter Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning Torts • Unintentional – Tort of negligence • Intentional – Torts against the person • assault • battery • false imprisonment – Torts against chattels • trespass against goods • conversion of goods • detinue Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 3-3 Australia Copyright © 2000 McGraw-Hill Torts • Intentional (continued) – Torts against land • trespass against land • public nuisance • private nuisance – Tort of defamation Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 3-4 Australia Copyright © 2000 McGraw-Hill Tort • A 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 Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 3-5 Australia Copyright © 2000 McGraw-Hill Tort of negligence Pre-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 Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 3-6 Australia Copyright © 2000 McGraw-Hill Duty of care • The “neighbour principle” indicates to whom a duty of care applies, based on: - foreseeability - proximity Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 3-7 Australia Copyright © 2000 McGraw-Hill Neighbour 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) Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 3-8 Australia Copyright â 2000 McGraw-Hill Foreseeability Test: ã Would a reasonable person foresee that damage may result from the defendant’s action? i.e preventable and consequently avoidable Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 3-9 Australia Copyright â 2000 McGraw-Hill Proximity ã There must be some relationship between the parties, namely: - physical proximity - circumstantial proximity (i.e relationship between parties exist) - causal proximity Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 3-10Australia Copyright © 2000 McGraw-Hill Defences to a claim in negligence • Contributory 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) Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 3-17Australia Copyright © 2000 McGraw-Hill Precedents existing for tort of negligence • Motor vehicle accidents • Occupier’s liability • Product liability Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 3-18Australia Copyright © 2000 McGraw-Hill Motor vehicle accidents All drivers owe other road users a duty of care Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 3-19Australia Copyright © 2000 McGraw-Hill Insurance areas • Personal injury – Compulsory third party (included in car registration fee - Qld.) • Property damage – Comprehensive (for all property damage incurred) – Third party property insurance (for damage to another person’s property) Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 3-20Australia Copyright â 2000 McGraw-Hill Occupier ã A 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 Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 3-21Australia Copyright © 2000 McGraw-Hill Product liability Donoghue 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 goods Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 3-22Australia Copyright â 2000 McGraw-Hill Torts against the person ã Assault: 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 Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 3-23Australia Copyright © 2000 McGraw-Hill Torts 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 Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 3-24Australia Copyright © 2000 McGraw-Hill Torts against land • Trespass 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) Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 3-25Australia Copyright © 2000 McGraw-Hill Tort of defamation • “Defamation” is the publication of a statement which tends to lower a person in the estimation of rightthinking members of society generally; or which tends to make them shun or avoid that person.” (Winfield & Jolowicy on Tort p 78) Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 3-26Australia Copyright © 2000 McGraw-Hill Elements of the tort of defamation The 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 Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 3-27Australia Copyright © 2000 McGraw-Hill Remedies for defamatory statements • Damages (Apology may reduce amount) • Injunction (To stop publication) Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 3-28Australia Copyright © 2000 McGraw-Hill Doctrine of vicarious liability • Where 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 Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 3-29Australia Copyright â 2000 McGraw-Hill Vicarious liability ã Vicarious liability – employee (told what to and how to it – CONTROL TEST) • No vicarious liability – independent contractor Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 3-30Australia Copyright © 2000 McGraw-Hill Liability Employer will be vicariously liable for the employee if: • acts or omissions are committed in the course of their employment • acts occur while carrying on an authorised task, even if carried out in an unauthorised manner Copyright 2003 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 3-31Australia Copyright © 2000 McGraw-Hill ... 20 03 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 3- 13Australia Copyright © 2000 McGraw-Hill Breach of the duty of. .. 20 03 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 3- 26Australia Copyright © 2000 McGraw-Hill Elements of the tort of. .. suffered as a result of the breach of duty Copyright 20 03 McGraw-Hill Australia Pty Ltd PPTs t/a Fundamentals of Business Law 4e by Barron & Fletcher Slides prepared by Kay Fanning 3- 6 Australia Copyright