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Tort of negligence

Issues P D
Duty of care is Yes. Physical loss No. Physical loss
owned Donoghue v Stevenson Modbury Triangle shopping centre v
Mental harm
Mental loss
Jaensch v Coffey (Reasonable person
test CLA 33) Tame v New South Wales
Economic loss Economic loss
Esso Petroleum Co Ltd v Mardon Esanda Finance v Peat Marwick

No need to prevent form

Good Samaritans/Volunteer
Disclaim Not effective Yes and effective
Heyley v Heller
D has control or not Yes. Australian Safety Stores v Zaluzna No Modbury v Anzil
P’s vulnerability Cant stray away/ Lack of special
Special relationship Exists. Chapel v Hart Does not exist.
Breach standard Yes No
duty of care O’Dwyer v Leo Buring Romeo v Conservation Commission of

Section 31 Standard care Could have done better Have done a what a reasonable person
could be expected
(Reasonable person in D’s
Section 32 O’Dwyer v Leo Buring Romeo v
1 Foreseeablity

2 Risk not insignificant

3 Probability of
risk/seriousness of risk/cost
of taking precautions

Section 40 Skilled person 1 Not reasonably expected of that 2 Reasonably expected of that person
A person professing to have 2 Relevant circumstances Esanda Finance v
a particular skill
Causation of loss Yes No
Section 34 Definition of Yes. Chapel v Hart No
1 Necessary condition of
the occurrence of the harm
2 D be responsible for P’s
Section 50 Contributory No According to Section 44 standard of Yes . P is also negligent.March v
negligence P’s negligence. P is not negligent Stramare Pty Ltd
Section 42 Maintenance of Not involved in Involved in
Section 43 Criminal activity

Unsafe goods
Issues P D
Corporation Yes. By the virtue of “Ltd” Not a corporation
Trade or commerce Yes Not within course of trade
or commerce
Supplier (Sales/Lease/Hire/Hire- Yes Not supplier
Defective (Objective community test) Good’s safety is not such Goods reached general
as persons generally are people’s expectation.
entitled to expect.
Goods are inherently
All relevant information dangerous. (Inherent defect)
ought to be disclosed.
Manufactured Yes. ACCC v Glendale

Actual manufacturer
Deemed manufacturer
Holds out as manufacturer/permitting names to be
applied to goods/imported goods with actual
manufacturers have no branches in Australia

Liability of intermediaries
Real manufacturers unknown/30 days limit for
intermediaries to reply with details (Otherwise
deemed manufacturers)
Goods (Ships, aircraft and other vehicles/
Animals, including fish/Minerals, trees and crops/
Gas and electricity)
Type of losses Yes. Thomas v Southcorp
Australia Ltd
Bodily injury or death/Financial loss to
dependants/damage to domestic(PHD)
goods/damage to domestic buildings
Total defences to TPA VA Ryan v Graham Barclay
Oysters (Undetectable
Subsequent defect (did not exist at time of defect)
supply/time supplied by actual manufacturers
(except electricity when generated))
Compliance with mandatory standard (Liability
shift to commonwealth)
Undetectable defect (State of scientific or
technical knowledge unable to find defect)
Goods are components of other goods and defect
attribute to design/markings/instructions or
warnings of finished goods
Partial defences to TPA VA No. Caused solely by D Caused by both P and D and
thus damage or
Contributory Acts or Omissions (Caused by both compensation reduced
D and P)
Any exclusion purports to exclude, restrict or
modify liability under TPA VA void
Time limitation
Supplied less than 10 yrs/Action started within 3

Manufacturer’s liability
Issues P D
Corporation Yes No

Trade or commerce Yes No

Manufactured D is the actual manufacturers plus No
deemed manufacturers
Consumer PHD Not PHD
Six situations (Similar to TPA V
Div 2)
Note: Resupply (There must not Yes. Graham Barclay Oyster Ltd v
be a contract between Ryan
manufacturers and P otherwise
contract law applies)

Misleading conduct
Issue P D
Corporation Yes. By virtue of “Ltd”
Trade or commerce Yes. Evidence for commercial
Engage in conduct Yes. Doing sth or not doing sth.
Misleading or deceptive 1 Make claim about future without Not expressly or impliedly
reasonable grounds suggest….
1 Statement about future
2 Objective test (Audience defined If people believe this, it is not
2 Define misleading
particularly including the gullible caused by D.
and uneducated, of which the vast
In this scenario, P is supposed to
majority will think it is misleading.
Also, it is caused by D)
ACCC V Glendale
Collins Marrickville Ltd v Henjo
Total defenses
1 s65 News stories
2 s85 advertisement in magazines
and newspapers
Proportionate Liability Act Liability of a concurrent
wrongdoer is limited to that
Note: this one has nothing to do
proportion of the total loss.
with P’s mistakes or
contributory act Court just considers to the extent
of that person’s responsibility for
the loss.

Unconscionable conduct
Types 51AA 51AB 51AC
Corporation Same Same

Common Trade and commerce

Supply or possible supply
Conditions for D

Special condition Use at last resort (When PHD For commercial

for P 51AB AND 51AC do not purpose (Not public
apply) company/under 10
Million/for trade and
commerce purpose)

Special definition P has special disadvantage Relative bargaining power Conduct in similar
for unconscionable transaction
D took advantage of P’s Understanding of document
weakness Applicable industry
Price elsewhere
P relies on D’s
Undue influence
misrepresentative advice Failure to disclose risk
Harsh conditions
Willingness to
Whether act in good
Successful case for CBA V Amadio ACCC v Lux Pty Ltd Coggin v Telstar
P Finance Company