Question Based on Tort Law

 

Need to answer question based on Tort Law.

Question : Explain what a ‘tort’ is from a historical perspective and why is it different from a crime?

 

Answer: Tort is a civil wrong, remedy of which lies in compensating the victim or the injured party. So, the legal liability is on the wrong does to compensate the aggrieved party. So, determination of the origin of tort is quite hard since the concept of tort was vague at the beginning. Tort basically is the evolution from the examination of facts and circumstances, that every individual has some moral as well as civil obligation towards the society at large. So, in order to commit a tort, there must be an act or an omission of certain act and which must be related to fault on the protected interest of an individual, thereby causing damage and finally accruing liability. 
Crime is different from Tort, in many aspects. Tort seeks to remedy the aggrieved party, while the Crime punishes the wrong doer. Tort cases are personal cases, i.e. In Personam, but the Crime is always In Rem, i.e. imposition of general liability on the general public. So, basically crime is a public wrong and is the violation of public rights, whereas Tort is private wrong. 

 

Question 2. As discussed in class, what are some defences to a negligence case?

 

Answer: The defenses in a case of negligence are as follows:
Obvious risk, is that risk which is obvious to a reasonable person, so if the plaintiff is not into seeing the obvious risk, then the defendant will not be liable for that (Windley v Gazaland Pty Ltd T/A Gladstone Ten Pin Bowl, 2014)
Inherent risk cannot make the defendant liable to negligence since this is the type of risk which cannot be avoided even by exercising the reasonableness ((Pollard v Trude , 2008)
Voluntary assumption of risk occurs mostly in the cases of surgery when the patients themselves voluntarily assumes the risks and is fully aware of it. 
Dangerous recreational activity is another defence, where based on the obvious risk, the plaintiff suffered harm. 
Contributory negligence is the most common defence applied by the defendants, where they establish that the plaintiff has contributed towards his or her injury and hence had failed to take reasonable precautions. (THE CITY OF PROSPECT v JASPERS, 2012)

 

Question 3.    Explain negligence and how would it be proved? i.e. what is the standard of proof, the duty of care, the tests of proximity and causation? Please discuss

 

Answer: Every human being owes a duty towards the other human being. So, it is mandatory that everybody should show duty to take care. When that duty to take care is not performed or is omitted then the negligence arises out of that omitted duty. So, to bring an action under negligence the claimant must prove that, there was a duty on the part of the defendant, and that duty is breach, and for that breach the claimant suffered harm. So, to claim negligence, tests of proximity and causation must be borne in mind. Since, the breached duty on the part of the defendant. must be the causation for which the claimant suffered and the damage so sustained must be the proximate cause or the legal cause on the part of the breach so made by the defendant. 

 

Question 4.    What is the extent of damages (losses) that can be claimed in negligence? Are you liable for each and every possible loss? Think about foreseeability and proximity.

 

Answer: Damages is the pecuniary part to provided or awarded to the claimant or the injured party. There are two basic types of damages, one is the actual or the compensatory damages and the other is the punitive damages. Again, compensatory damages can be on further sub- types and includes economic losses, or psychiatric damages or even medical expenses. On the other hand, punitive damages are the exemplary ones which are not done to compensate the aggrieved party but done to cause the reform of the wrong- doer. 
So, it is not necessarily that one will be held liable for each and every possible loss, and so to calculate the loss and the liability, the foreseeability and the proximity must be taken into consideration. Foreseeability clause arises when the loss or the risk is reasonably foreseeable by a man with general prudence, and the proximity is the actual cause for which the loss is sustained. (Whittaker v Farnsway Mining Constructions P/L , 2004)

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Question 5. Has Parliament made any laws which restrict the rights to sue in negligence? Discuss (Have a look at the Limitation Act or TAC and discuss)

 

Answer: There is an imposition of strict time limits i.e. the limitation periods based on the Limitation Act 1958, and within that mentioned time, a personal injury case must be brought before the Court. The normal limitation period for the transport accidents is determined to be six years, but is quite loose for the sound minors, and the limitation period for them starts from the time they embark upon their 18th birthday. But, at the day end, it is the discretion of the Judge to the extend the period of limitation as was held in case of (Anderson v TAC , 2016), where the Judge found it reasonable to extend the limitation period.

 

Question 6.    Explain ‘occupiers liability’ and refer to the Wrongs Act 1958 (Vic)

 

Answer: Occupiers liability under the (Wrongs Act , 1983) is the liability which relates to that duty to take care which is owed by the occupier of the property. So, it is the duty of the owner or the in- charge of the property to take care of the premises so that no accidents arises due to the defects or the dangerous conditions so present in the premises. 

 

Question 7.    Frank visits John the investment banker. John advises Frank that he should a million dollars worth of rabbit fur is this will be the next fashion item and Frank could sell the fur to fashion designers at 5 times the cost price and make a cool $4 Million dollars. Frank relies on John’s statements and advice. Unfortunately no one wants rabbit furs this coming summer! Discuss whether Frank can sue John under a case of negligent misstatement?

 

Answer: Before discussing whether F can sue J, we need to make some presumptions. So, we presume that J who is the investment banker had the reasonable ground to state his opinion about advising F to stake his money into rabbit fur. The Court in (Caparo Industries pIc v Dickman, 1990) held that to bring a claim under negligent misstatement tending to economic loss, the focus must be on the proximity mingled with reasonableness. So, applying this in the present facts of the case, the negligent advice so given by J was considered by F as the knowledge to be relied upon and hence F is reasonable as per his reliance is concerned, so yes, F can sue J and bring an action for negligent misstatements based on the economic loss so sustained by him. 

 

Question 8.    Peter the bouncer is hired by Roxy Nightclub. Peter the bouncer sees Jill and Jack at the door of the nightclub and as they are a bit drunk refuses them entry. When Jack and Jill protest, Peter the bouncer grabs them both and throws them onto the street. Jack breaks his hand and Jill receives a large cut on her face. Discuss whether Jack and Jill can sue under vicarious liability of employers? 

 

Answer: In the present facts of the case P is employed as a bouncer by R, a night club. Vicarious liability is that aspect of tort which is based on the principle of respondeat superior, i.e. the master will have the answer. So, when an employee is employed as a bouncer, it is implied that employer’s goods or the premises are to be protected by them, in the course of their employment. Thus, for JI and JA to sue the employer based on the principle of vicarious liability is possible, since P acted in the course of his employment to keep them out of the club, thus protecting the employer’s premises, and also the fact that the bouncers are only employed to act in such manner which is aggressive as well as tough. As no personal motive surfaces so the employer can be vicariously held liable for the damage so caused by the employee P, (Mattis v Pollock , 2003)

 

Question 9.    Susan witnesses her husband viciously assaulted. She was 2 months pregnant. The stress of seeing the assault on her husband made her quite ill, stressed and she also miscarried. Discuss her possible nervous shock case in tort law.

 

Answer: S got miscarried due to the nervous shock she suffered following the assault on her husband. But, to bring a claim of nervous shock case under tort law, S must satisfy few things. Firstly, that the conduct on the defendant must be reasonable foreseeable so as to cause harm to S, which was not in (Bourhill v Young , 1943), but was present in (Kent v Griffith, 2000). 2ndly, the proximity need to be proved to judge the relationship as was held in home office. 3rdly, the Court must consider the situation to be reasonable and just so as to impose liability on the defendant was held in (Hill v Chief Constable of West Yorkshire, 1987). 
Thus, it is unlikely, that S could claim anything due to her injury, since it would far- fetched to establish either of the 3 points so mentioned above. 

 

Quesdtion 10.    Explain the defective products provision in the Competition and Consumer Act / ACL (Cth). Give an example of where you buy a defective Television from a shop.

 

Answer: The defective products provision in the (Competition and Consumer Act, 2010) is that the goods will be considered defective if the safety of the product is not in parity with the reasonable expectation of a prudent person. So, when the defective Television is purchased from a shop, then the direct liability is not only on the suppliers but also on the manufacturers, due to their breach of consumer guarantees. 

References

(Pollard v Trude , [2008] QSC 335). (2008).
Anderson v TAC , [2016] VCC 895 (2016).
Bourhill v Young , [1943] AC 92 (HL 1943).
Caparo Industries pIc v Dickman, [1990] 2 AC 605 (House of lords 1990).
Competition and Consumer Act. (2010). Retrieved from http://www6.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_act/caca2010265/
Hill v Chief Constable of West Yorkshire, [1987] UKHL 12 (HL 1987).
Kent v Griffith, [2000] 2 WLR 1158 (Court of Appeal 2000).
Mattis v Pollock , [2003] 1 WLR 2158 (2003).
THE CITY OF PROSPECT v JASPERS, [2012] SASCFC 85 (SUPREME COURT OF SOUTH AUSTRALIA 2012).
Whittaker v Farnsway Mining Constructions P/L , [2004] QSC 160 (SUPREME COURT OF QUEENSLAND 2004).
Windley v Gazaland Pty Ltd T/A Gladstone Ten Pin Bowl, [2014] QDC 124 (QDC 2014).
Wrongs Act . (1983). Retrieved from http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/vic/consol_act/wa1958111/

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