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Negligence

-Duty of care (Donoghue V Stevenson)


-Proximity (Jaensch V Coffey) (Wicks & Sheehan V SRA) types of proximity: physical, circumstantial, causal -reasonably foreseeable (Chapman V hearse) (Nagle v Rottnest Island Authority) (prior occurrence of risk? did not enter minds) note: risk is still reasonably foreseeable even if it is unlikely; Wyong Shire Council v. Shirt

-Breach of standard of care (Mercer v Commissioner for Road Transport)


-Probability of accident occurring where there may plaintiff may suffer damage (Bolton v Stone) -Gravity of the result of breach of care (Paris V Stepney Borough Council) -Burden or practicality of eliminating risk (Woods V Multi-sport holdings) -Justification or social utility of act or omission which caused risk ( Watt V Hertfordshire CC)

-Damage resulted from this breach of care.


-Causal (but-for test) (Yates V Jones) (Cork v Kirby Maclean Ltd) (Lindeman Ltd v Colvin) And no novus actus interveniens (break in the chain of causation) -Reasonable foreeability of damage occurring due to the risk. (Overseas Tankship Ltd v Miller Steamship Co Pty) -Eggshell Skull principle is the exception (Smith v leech brain & co)

Defences to Negligence
-Volenti non fit injuria (Agar V Hyde) Plaintiff knew the risk, accepted it, and took the risk anyway. -Contributory Negligence (s 26 wrongs act (vic) 1958) -Plaintiffs own Negligent actions caused or partly caused the risk.

Damages
A plaintiff can claim damages on: -Property damage -Personal injury -Economic loss -from physical damage to person or property -Third party physical or property damage (Perre V Apand) -Pure economic loss (rules established in woolcock investments Pty Ltd V CDG Pty Ltd. -Reasonable foreseeability -Interdeterminacy of liability (liability must be limited in scope of # of claimaints, damages & time) -The individual autonomy factor (legitimately protecting own interests in business of society does not create duty of care to competitors) -The vulnerability to risk -Negligent misstatement

Vicarious liability of employer


(Humberston V Northern Timbre Mills)

Oversears tankship (uk) ltd V. Miller steam ship co P TY

4. Defence

Joint Illegal enterprise Gala v Preston Smith v Jenkins Jackson v Harrison

Volenti non fit injuria (Voluntary Assumption of Risk) The plaintiff must have fully appreciated the risk and accepted it freely and willingly. Smith v Charles Baker & Sons [1891] Agar v Hyde Cuterson v Commissioner for Railways ICI v Shatwell Dann v Hamilton casually related to actual accident occurred Gent-Diver v Neville [1953] Rootes v Shelton

Contributory Negligence damages recoverable in respect thereof shall be reduced to such an extent as the court thinks just and equitable having regard to the claimants share in responsibility. (The apportionment between the plaintiff and the defendant will be on the basis of their respective culpability) Astley v Austrus Wynbergen v Hoyts Corporation Pty Ltd - Pennington v Norris - Gough v Thorne Cook v Kirby Mclean - Cook v Cook - Neindorf v Junkovic s26 Wrongs Act (Victoria) Agreeing to be a passenger knowing the defendant was tired or intoxicated Blakeney v Scheulen Tickling the defendant driver - Braund v Henning Plaintiffs failure to take adequate care for his own wellbeing Davies v Swan Motor Co (Swansea Ltd [1949] Contributing negligence can never amount to 100% - Wynbergen v Hoyts Corporation Pty Ltd It is not necessary that the defendants negligence be the sole cause of the plaintiffs damage Bonnington Castings Ltd v Wardlaw [1956]

Denial - I didnt do it.

Res Ipsa Loquitur (The Accident Speaks for itself) Byrne v Boadle GIO v Best GIO v Frederichberg Scott v London & St Katherine Dock Co.

If there are multiple explanations, but all involve negligence by [D], then [P] must succeed, whichever explanation is chose: GIO v Best: where three possible causes where identified, all supposing [D] was negligent while driving The court may find one explanation is more probable than any others: TNT Management v Brooks