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Negligent

Chapter 8 and 9

Tort vs Contract

Both can result in a civil action where remedies are compensation
Some actions can result in concurrent liability (where contractual duty is one
of reasonable care)
o Liability can arise in both tort and contract for the same conduct
o Doctor who negligently treat a patient
 Implied term in contract to take reasonable care
 May have broken their duty of care in regards to their patient
BUT must show duty of care existed and actual damage was suffered as a
result of breach

Contract
Concerned with enforcement of promises and compensation

Tort


Concerned with protection of rights.
Mostly derived from case law
Include the right to protection of one’s person
o Reputation
o Property
o Business
o Economic interests
Provides remedies in the form of damages as compensation for:
o Direct financial consequences : loss of wages earning, profits and
expenses incurred as a result of the loss or injury
o Non-pecuniary consequences:
 Pain and suffering
 Loss of some amenity
 Not being able to engage in a pleasurable activity

To Establish Negligence (page 179-203)
1. There must exist an identifiable duty of care between the parties
 The plaintiff was owed a duty of care
2. The standard of care expected must be able to be identified
 The required standard of care was breached
3. There must have been resulting and measurable damage
 The breached caused the damage which was of a kind that was a
foreseeable consequence of the breach

Duty of Care
The duty owed by one person to another and based on the relationship between
them, that is, foreseeable risk of injury and establishing the satisfaction of the
judge.

There must be a foreseeability   Careless acts are not necessarily amount to negligence A person is only liable for the harm that is a foreseeable consequence of their actions that is their failure to exercise reasonable case and skill There must be proximity Physical. circumstantial or causal Donoghue v Stevenson (1932) AC 562  Neighbour principle – The principle is that one must take reasonable care to avoid acts or omissions that could reasonably be foreseen as likely to injure one's neighbour Reasonable reliance   There is NO breach in duty where physical haem or loss arises as a result of a failure to act – liability for omission involves the imposition of a duty to take positive action There is no duty to effect a rescue even when the defendant has the means to affect a rescue Positive duty may be imposed where a pre-existing protective relationship exists. It is more than just a careless action    Parent/child Employer/ employee Occupier of premises Determining of Breach .

000 The person acquires goods or services of a kind ordinarily acquired for personal.Consumer protection A person is Consumer if:     The person acquires good or services values less than $40. domestic or household use (of any value) The person acquires a commercial road vehicle (of any value) The goods were not acquired for resupply. or for use or transformation in trade or commerce .

Property Ownership vs Possession Acquiring Ownership     By purchase By gift By will/ intestacy Possessing abandoned property Type of property Real property    Definition of real property and fixture Page 883 Land Fixture Personal property/ chattels Intellectual property Finder rights .

Business structure .