Gibson, Business Law 11^th Edition

Chapter 7: Civil Liability: The law of torts and negligence

LO7.1 Describe the law of torts, its general principles and the statutes of limitations for tort actions

Multiple choice: Choose the one alternative that best completes the statement or answers the question.

1. A tort is best described by which of the following:
2. The actions of one person render the other person liable due to vicarious liability.
3. A party has made a deliberate misrepresentation which resulted in a reasonable loss.
4. A party suing a public authority such as a national park about littering.
5. A claim made in civil court by a party who is pursuing a wrongdoer for a wrongful act or omission.

Difficulty: Basic

Topic: General principles of tortious liability (negligence)

Standard/Graduate Attribute AACSB: Application of knowledge

Learning Outcome: LO 7.1 Describe the law of torts, its general principles and the statutes of limitations for tort actions.

1. As an alternative to bringing an action in tort, a victim may choose to seek compensation by way of:
   • • • 1. a criminal injuries compensation scheme.
         2. a workers’ compensation scheme.
         3. a motor accident compensation scheme.
         4. any of the above.

Difficulty: Basic

Topic: General principles of tortious liability (negligence)

Standard/Graduate Attribute AACSB: Application of knowledge

Learning Outcome: LO 7.1 Describe the law of torts, its general principles and the statutes of limitations for tort actions.

1. When will a negligence action arising in July 2014 become statute barred in Tasmania?
   • • • 1. July 2016.
         2. July 2017.
         3. July 2018.
         4. July 2019.

Difficulty: Complex

Topic: Time periods for tort actions

Standard/Graduate Attribute AACSB: Analytical thinking

Learning Outcome: LO 7.1 Describe the law of torts, its general principles and the statutes of limitations for tort actions.

True/False: Identify whether the statement is True or False

1. In the law of tort, the plaintiff must prove its case beyond reasonable doubt.
   • • • 1. True
         2. False

Difficulty: Moderate

Topic: General principles of tortious liability (negligence)

Standard/Graduate Attribute AACSB: Application of knowledge

Learning Outcome: LO 7.1 Describe the law of torts, its general principles and the statutes of limitations for tort actions.

1. The onus is on the plaintiff to prove that their action is within the limitation period.
   • • • 1. True
         2. False

Difficulty: Complex

Topic: Time periods for tort actions

Standard/Graduate Attribute AACSB: Application of knowledge

Learning Outcome: LO 7.1 Describe the law of torts, its general principles and the statutes of limitations for tort actions.

Essay: Write your answer in the space provided or on a separate sheet of paper.

1. Describe the difference between tort law and contract law.

Difficulty: Basic

Topic: General principles of tortious liability (negligence)

Standard/Graduate Attribute AACSB: Application of knowledge

Learning Outcome: LO 7.1 Describe the law of torts, its general principles and the statutes of limitations for tort actions.

1. Much of the law of torts is concerned with accidental injury to the person or property. Do you think that it is appropriate for a person to be made liable for an accidental act?

Difficulty: Complex

Topic: General principles of tortious liability (negligence)

Standard/Graduate Attribute AACSB: Reflective thinking

Learning Outcome: LO 7.1 Describe the law of torts, its general principles and the statutes of limitations for tort actions.

1. An action in tort may become ‘statute barred’ if more than three or six years (in some cases even less) have passed (depending upon the type of tort) since the date the tort was committed or the damage incurred. Why does the law impose these time limits? Do you think they are fair?

Difficulty: Complex

Topic: Time periods for tort actions

Standard/Graduate Attribute AACSB: Reflective thinking

Learning Outcome: LO 7.1 Describe the law of torts, its general principles and the statutes of limitations for tort actions.

LO7.2 Explain negligence and the introduction of civil liability legislation by federal, state and territory governments

True/False: Identify whether the statement is True or False

1. Negligence is defined as the duty of care by a legal person to prevent harm to another person by exercising reasonable care.
2. True
3. False

Difficulty: Basic

Topic: Civil liability and the tort of negligence

Standard/Graduate Attribute AACSB: Application of knowledge

Learning Outcome: LO 7.2 Explain negligence and the introduction of civil liability legislation by federal, state and territory governments.

1. Changes to the law of negligence made in 2002 in all jurisdictions were designed to restrict the right of a plaintiff to recover damages.
   • • • 1. True
         2. False

Difficulty: Basic

Topic: Civil liability and the tort of negligence

Standard/Graduate Attribute AACSB: Application of knowledge

Learning Outcome: LO 7.2 Explain negligence and the introduction of civil liability legislation by federal, state and territory governments.

LO7.3 List and explain the necessary elements required to establish negligence

Multiple choice: Choose the one alternative that best completes the statement or answers the question.

1. Tort law defines a ‘reasonable person’ as:
   • • • 1. The plaintiff.
         2. T he judge.
         3. T he defendant.
         4. A person of normal intelligence.

Difficulty: Basic

Topic: Roles of the plaintiff and the defendant in establishing the elements of negligence

Standard/Graduate Attribute AACSB: Application of knowledge

Learning Outcome: LO 7.3 List and explain the necessary elements required to establish negligence.

1. The test for duty of care is based on which of the following elements:
   • • • 1. P olicy considerations.
         2. V ulnerability and reliance.
         3. F oreseeability of harm.
         4. A ll of the above.

Difficulty: Basic

Topic: Roles of the plaintiff and the defendant in establishing the elements of negligence

Standard/Graduate Attribute AACSB: Application of knowledge

Learning Outcome: LO 7.3 List and explain the necessary elements required to establish negligence.

1. In a negligence case, the harm suffered by the plaintiff must be:
   • • • 1. The foreseeable consequence of an action.
         2. The result of a careless act.
         3. A serious physical injury.
         4. All of the above.

Difficulty: Complex

Topic: Roles of the plaintiff and the defendant in establishing the elements of negligence

Standard/Graduate Attribute AACSB: Analytical thinking

Learning Outcome: LO 7.3 List and explain the necessary elements required to establish negligence.

1. In the case of Donoghue v Stevenson [1932] AC 562, why did Donoghue sue Stevenson in negligence and not contract?
   • • • 1. The contract between Stevenson and Donoghue expressly excluded liability.
         2. There was no contract between Donoghue and Stevenson.
         3. The law of contract cannot be used to recover compensation for personal injury.
         4. The contract was between Donoghue and the retailer.

Difficulty: Complex

Topic: Roles of the plaintiff and the defendant in establishing the elements of negligence

Standard/Graduate Attribute AACSB: Application of knowledge

Learning Outcome: LO 7.3 List and explain the necessary elements required to establish negligence.

1. The plaintiff in Swain v Waverley Municipal Council [2005] HCA 4 was successful because:
2. The jury found that the plaintiff was guilty of contributory negligence.
3. The plaintiff established strict liability.
4. The plaintiff established that the defendant breached a duty of care to the plaintiff.
5. The jury found that the defendant had not breached their duty of care towards the plaintiff.

Difficulty: Moderate

Topic: Roles of the plaintiff and the defendant in establishing the elements of negligence

Standard/Graduate Attribute AACSB: Analytical thinking

Learning Outcome: LO 7.3 List and explain the necessary elements required to establish negligence.

1. The following public service personnel do not have a duty of care towards individuals because of public policy:
2. Doctors.
3. Teachers.
4. Solicitors.
5. Police officers.

Difficulty: Moderate

Topic: Roles of the plaintiff and the defendant in establishing the elements of negligence

Standard/Graduate Attribute AACSB: Application of knowledge

Learning Outcome: LO 7.3 List and explain the necessary elements required to establish negligence.

1. What was the court’s reasoning in the case of Goldman v Hargave [1967] 1 AC 645?
2. The plaintiff’s proximity affected his duty of care towards his neighbour
3. The plaintiff had a reasonable duty of care towards his neighbour due to their personal relationship.
4. The plaintiff had created a risk which could have been prevented with little effort..
5. The risk was small, thus the likelihood that the plaintiff ignored it was plausible.

Difficulty: Complex

Topic: Roles of the plaintiff and the defendant in establishing the elements of negligence

Standard/Graduate Attribute AACSB: Analytical thinking

Learning Outcome: LO 7.3 List and explain the necessary elements required to establish negligence.

1. The case of Imbree v McNeilly [2008] HCA 40 is authority for the principle that:
   • • • 1. P arents are not automatically liable for the torts of their children.
         2. A learner driver is subject to the standard of care of a child of similar age and experience.
         3. A learner driver is subject to the standard of care of an unqualified and inexperienced driver.
         4. A learner driver is subject to the same standard of care as any other driver.

Difficulty: Complex

Topic: Roles of the plaintiff and the defendant in establishing the elements of negligence

Standard/Graduate Attribute AACSB: Application of knowledge

Learning Outcome: LO 7.3 List and explain the necessary elements required to establish negligence.

1. Which of the following questions is not asked in the test of factual causation?
   • • • 1. Would the plaintiff have suffered damage but for the defendant’s negligence?
         2. Is it appropriate for the scope of the liability to extent to the harm caused?
         3. Did the defendant cause the harm?
         4. Was the negligence a necessary condition of the harm?

Difficulty: Moderate

Topic: Roles of the plaintiff and the defendant in establishing the elements of negligence

Standard/Graduate Attribute AACSB: Application of knowledge

Learning Outcome: LO 7.3 List and explain the necessary elements required to establish negligence.

1. If a plaintiff has a pre-existing condition that makes their injuries worse:
   • • • 1. The ‘exceptional circumstances’ test will apply.
         2. Damages will be reduced for contributory negligence.
         3. The defendant is liable for any loss of the same kind that would be reasonably foreseeable.
         4. The defendant is only liable if the particular damage is foreseeable.

Difficulty: Moderate

Topic: Roles of the plaintiff and the defendant in establishing the elements of negligence

Standard/Graduate Attribute AACSB: Application of knowledge

Learning Outcome: LO 7.3 List and explain the necessary elements required to establish negligence.

1. In Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54, which of the following were held to be liable for breach of duty of care?
   • • • 1. The respondent, Ryan.
         2. The Great Lakes Council.
         3. The Government of New South Wales.
         4. None of the above.

Difficulty: Moderate

Topic: Roles of the plaintiff and the defendant in establishing the elements of negligence

Standard/Graduate Attribute AACSB: Application of knowledge

Learning Outcome: LO 7.3 List and explain the necessary elements required to establish negligence.

1. In Strong v Woolworths [2012} HCA 5, the High Court found that:
   • • • 1. The damage caused to the plaintiff was outside the scope of Woolworths’ liability.
         2. The failure of Woolworths to adopt a reasonable system of cleaning was the effective cause of the plaintiff’s fall.
         3. The plaintiff contributed to her injury by not looking where she was going.
         4. The injury to the plaintiff was not caused by Woolworths’ negligence.

Difficulty: Basic

Topic: Roles of the plaintiff and the defendant in establishing the elements of negligence

Standard/Graduate Attribute AACSB: Application of knowledge

Learning Outcome: LO 7.3 List and explain the necessary elements required to establish negligence.

True/False: Identify whether the statement is True or False

1. Participants in high risk recreational activities are expected to take reasonable precautions to ensure their own safety and to prevent injury.
2. True
3. False

Difficulty: Basic

Topic: Roles of the plaintiff and the defendant in establishing the elements of negligence

Standard/Graduate Attribute AACSB: Application of knowledge

Learning Outcome: LO 7.3 List and explain the necessary elements required to establish negligence.

1. The reasonable person test, in the case of children, gives way to the standard of a child of similar age and experience.
   • • • 1. True
         2. False

Difficulty: Basic

Topic: Roles of the plaintiff and the defendant in establishing the elements of negligence

Standard/Graduate Attribute AACSB: Application of knowledge

Learning Outcome: LO 7.3 List and explain the necessary elements required to establish negligence.

1. Contributory negligence is a common defence strategy used by the plaintiff to prove that the defendant contributed wholly to their harm.
2. True
3. False

Difficulty: Complex

Topic: Roles of the plaintiff and the defendant in establishing the elements of negligence

Standard/Graduate Attribute AACSB: Application of knowledge

Learning Outcome: LO 7.3 List and explain the necessary elements required to establish negligence.

1. The titles of the parties in a first instance negligence action are plaintiff and respondent.
2. True
3. False

Difficulty: Basic

Topic: Roles of the plaintiff and the defendant in establishing the elements of negligence

Standard/Graduate Attribute AACSB: Application of knowledge

Learning Outcome: LO 7.3 List and explain the necessary elements required to establish negligence.

1. In ‘novel cases’, the salient factors of the relationship between plaintiff and defendant are considered.
2. True
3. False

Difficulty: Basic

Topic: Roles of the plaintiff and the defendant in establishing the elements of negligence

Standard/Graduate Attribute AACSB: Application of knowledge

Learning Outcome: LO 7.3 List and explain the necessary elements required to establish negligence.

Essay: Write your answer in the space provided or on a separate sheet of paper.

1. Why do you think the Donoghue v Stevenson case is so important and has shaped torts law?

Difficulty: Complex

Topic: Roles of the plaintiff and the defendant in establishing the elements of negligence

Standard/Graduate Attribute AACSB: Application of knowledge

Learning Outcome: LO 7.3 List and explain the necessary elements required to establish negligence.

1. Briefly explain the purpose of torts compensation.

Difficulty: Moderate

Topic: Roles of the plaintiff and the defendant in establishing the elements of negligence

Standard/Graduate Attribute AACSB: Application of knowledge

Learning Outcome: LO 7.3 List and explain the necessary elements required to establish negligence.

1. Discuss what it means to ‘reasonably foresee’ potential harm which may befall your neighbour.

Difficulty: Basic

Topic: Roles of the plaintiff and the defendant in establishing the elements of negligence

Standard/Graduate Attribute AACSB: Application of knowledge

Learning Outcome: LO 7.3 List and explain the necessary elements required to establish negligence.

1. Describe what a plaintiff must do in order to succeed in an action for negligence.

Difficulty: Moderate

Topic: Roles of the plaintiff and the defendant in establishing the elements of negligence

Standard/Graduate Attribute AACSB: Application of knowledge

Learning Outcome: LO 7.3 List and explain the necessary elements required to establish negligence.

• Did the defendant owed them a duty of care. This is a duty owed by one person (the defendant) to another (the plaintiff) and based on the relationship between them— that is, foreseeable risk of injury and established to the satisfaction of the judge; the defendant breached that duty of care to them.
• The plaintiff then has to establish whether the standard of care the defendant has exhibited has been breached. This is determined by a three-limb test (replacing the reasonable person test and where all three elements have to be satisfied):—that it was foreseeable; —that the risk was not insignificant; —and that a reasonable person in the defendant’s position would have taken precautions.
• And did the plaintiff suffer an actual loss or damage recognised by the law. Did the plaintiff suffer actual damage or loss, and was that damage caused or contributed to by the defendant’s breach?

1. What is the name of the test that the courts use in determining the existence of a duty of care in any given circumstance?

Difficulty: Basic

Topic: Roles of the plaintiff and the defendant in establishing the elements of negligence

Standard/Graduate Attribute AACSB: Application of knowledge

Learning Outcome: LO 7.3 List and explain the necessary elements required to establish negligence.

While there is no set formula to establish this duty of care, the ‘neighbour’ test arising from Donoghue v Stevenson suggested the following test:

• You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour; and

• Your neighbour is any person who is so closely and directly affected by what you do that you ought reasonably to have them in contemplation as being so affected when you are directing your mind to the acts or omissions which are called into question.

LO7.4 Identify the defences a defendant can raise in an action for negligence, and their potential impact on damages paid

Multiple choice: Choose the one alternative that best completes the statement or answers the question.

1. If the defence of contributory negligence applies, civil liability legislation allows a court to reduce the amount of compensation by up to:
   • • • 1. 10 per cent.
         2. 50 per cent.
         3. 75 per cent.
         4. 100 per cent.

Difficulty: Moderate

Topic: Defences raised by the defendant

Standard/Graduate Attribute AACSB: Application of knowledge

Learning Outcome: LO 7.4 Identify the defences a defendant can raise in an action for negligence, and their potential impact on damages paid.

1. In order to establish contributory negligence, what must the defendant prove?
   • • • 1. The plaintiff was also at fault or negligent.
         2. The damage was reasonably foreseeable and was contributed to by the plaintiff’s action.
         3. The plaintiff’s conduct contributed to the damage or loss suffered by the plaintiff.
         4. All of the above.

Difficulty: Basic

Topic: Defences raised by the defendant

Standard/Graduate Attribute AACSB: Application of knowledge

Learning Outcome: LO 7.4 Identify the defences a defendant can raise in an action for negligence, and their potential impact on damages paid.

1. What happens If the defence of voluntary assumption of risk applies?
   • • • 1. A plaintiff can recover for an injury caused by an inherent risk but not an obvious risk.
         2. A plaintiff cannot recover for an injury caused by an obvious or an inherent risk.
         3. A plaintiff can recover for an injury caused by both an obvious risk and an inherent risk unless they were warned.
         4. A plaintiff can recover for an injury caused by an obvious risk but not an inherent risk.

Difficulty: Complex

Topic: Defences raised by the defendant

Standard/Graduate Attribute AACSB: Analytical thinking

Learning Outcome: LO 7.4 Identify the defences a defendant can raise in an action for negligence, and their potential impact on damages paid.

True/False: Identify whether the statement is True or False

1. A person cannot claim for injury as a result of something which was an obvious risk.
   • • • 1. True
         2. False

Difficulty: Basic

Topic: Defences raised by the defendant

Standard/Graduate Attribute AACSB: Analytical thinking

Learning Outcome: LO 7.4 Identify the defences a defendant can raise in an action for negligence, and their potential impact on damages paid.

1. The common law rules relating to contributory negligence no longer apply.
   • • • 1. True
         2. False

Difficulty: Basic

Topic: Defences raised by the defendant

Standard/Graduate Attribute AACSB: Application of knowledge

Learning Outcome: LO 7.4 Identify the defences a defendant can raise in an action for negligence, and their potential impact on damages paid.

Essay: Write your answer in the space provided or on a separate sheet of paper.

1. The recent statutory reforms to the law of negligence provide that, in the event of contributory negligence on the part of the plaintiff, the court can reduce the defendant’s liability by 100 per cent , thereby defeating the plaintiff’s claim. Can you think of a situation where it would be appropriate to relieve a negligent defendant from liability entirely?

Difficulty: Complex

Topic: Defences raised by the defendant

Standard/Graduate Attribute AACSB: Reflective thinking

Learning Outcome: LO 7.4 Identify the defences a defendant can raise in an action for negligence, and their potential impact on damages paid.

1. What is meant by ‘just and equitable’?

Difficulty: Basic

Topic: Defences raised by the defendant

Standard/Graduate Attribute AACSB: Application of knowledge

Learning Outcome: LO 7.4 Identify the defences a defendant can raise in an action for negligence, and their potential impact on damages paid.