HOW TO WRITE A NEGLIGENCE ANSWER FOR TORTS EXAM
- Identify the issue of the problem
- State concisely what the issue is.
- Establish the duty of care
- Is it an established category?
- Cite authority when establishing duty of care
- State the scope of the duty.
i. For example, the scope of duty would extend to taking steps to protect visitors to the park from foreseeable risks.
- Establish the breach of duty
- State that “the test to determine the standard of care owed by the defendant to the plaintiff is an objective one” (Glasgow v Muir)
- What is the standard of care? Reasonable, competent or skilled.
- Does the standard of care change?
i. D is child = lower standard (McHale v Watson)
ii. D has knowledge = may raise standard (s22(1) CLA)
iii. D’s inexperience = no change (Imbree v McNeilly)
iv. P with known disability = may raise standard (Paris v Stepney BC)
v. P is intoxicated = no change (March v Stramare;
- State that breach is a question of fact
- Apply s9 of the CLA 2003 (Qld)
i. Section 9(1)(a) Reasonable foreseeability
1. Class of injuries foreseeable? (Tame v NSW)
ii. Section 9(1)(b) Not insignificant risk
iii. Section 9(1)(c) Reasonable person in that position
iv. Section 9(2)(a) Probabilit CVy (Bolton v Stone)
v. Section 9(2)(b) Seriousness (Paris v Stepney BC)
1. What is the magnitude of gravity?
2. Characteristics may be relevant (Paris v Stepney BC)
vi. Section 9(2)(c) Burden of taking precautions (Romeo v Conservation Comm)
vii. Section 9(2)(d) Social utility (Dabron v Bath Tramways)
viii. Section 22 Professional standard of care
- Establish Factual causation
- Has P suffered actual damage?
i. Identify the damage and whether it is recognisable
- Apply Section 11 of CLA 2003 (Qld)
i. Section 11(1)(a) factual causation; state that the breach of duty caused the harm.
1. “But for” test (March v Stramare)
ii. Section 11(1)(b) scope of liability
1. Is the risk within the scope of liability
2. State that it is a question of law
3. Establish that P is a class of persons (Wyong Shire Council v Shirt)
4. Egg-shell skull principle
iii. Identify any novus actus interveniens and apply Sections 11(1)(b), 11(4)
1. Section 11(1)(b) and case (Wagon Mound No 1)
2. Will only break chain of causation if
a. They are voluntary;
b. They are causally so independent as to be termed coincidental;
c. As a matter of commonsense, and experience, they were not the cause of the relevant loss or damage
d. Bennett v The Minister; Medlin v SGIC
- Section 12 Onus of proof lies with the P in relation to causation
i. State that this was completely different at common law.
- Multiple tortfeasors?
i. Joint concurrent; concerted or common action (Thompson v ACT)
ii. Several concurrent; independent act to produce same (Chapman v Hearse)
iii. Section 6 of Law Reform Act 1995
1. P may bring an action against each or all of the concurrent tortfeasors
a. Tortfeasors may seek contribution from other tortfeasors
2. Section 7 of LRA 1995; Contribution recoverable is to the extent of that person’s responsibility for the damage
- Come to an overall conclusion
- Therefore, is there an action in negligence or not?
- Defences to negligence (*mention there are no defences if none.)
- Contributory Negligence
i. Section 10(1)(b) of LRA 1995
ii. Defendant must prove fault, foreseeable, causation
1. Section 23(2) CLA: P at fault is a question of fact, an objective test
a. Establish standard of care
iii. Refer to section 24 CLA: May reduce damages by 100%
iv. Apply, if relevant, sections 47-48 regarding intoxication and contributory negligence.
1. Section 47 Presumption of contributory negligence if P is intoxicated
2. Section 48 Did P rely on intoxicated D? If yes, presumption exists.
- Volenti non fit injuria or voluntary assumption of risk
i. What is the general rule?
ii. State what the risk is; Section 13 CLA: is it an obvious risk?
1. Apply section 14 if it is an obvious risk
a. Section 14 CLA: P is presumed to have known the risk.
iii. If the activity is ‘dangerous recreational activity, apply Section 19 CLA
1. Section 19 CLA: no liability if risks obvious in D.R.A.
i. If P and D were both involved in illegal activity, P will not succeed.
ii. Apply section 45 CLA: criminals not to be awarded damages
- Remember that the defendant bears onus in all matters relating to defences.
- Remedies for negligence action
- Compensatory damages
- Onus and time limit
- Onus is one the plaintiff
i. Limit for personal injury is 3 years (s11 Limitations of Actions Act)
ii. Limit for property damage is 6 years (s10 Limitations of Actions Act)