Week 2:

Forms of Legal Liability &

Tort of Negligence
 Intended Learning Outcomes

1. Distinguish five forms of legal liability

2. Understand the tort of negligence and its three

elements

3. Prove the first element of the tort of negligence (i.e.

duty of care)
 Part I:

Legal Liability
 What is legal liability ?
• Liability imposed by law.

• Examples:

o Jack crossed a red light – hitting Sarah – causing her serious

injuries => Tort law requires Jack to have liability/responsibility to
compensate Sarah for her injuries.

o Tom kills Ben => Criminal law requires Tom to have liability for
committing a crime.

• John does not delivery the car to Brian as specified in the contract
between them => Contract law requires John to have liability for
breaching a contract.
 When will a person incur/suffer
legal liability ?
Generally, when a person’s conduct (action or inaction) is
inconsistent with a legal requirement

and that inconsistency is not justified by law,

(possible examples of exceptions to law: an ambulance may cross red

lights in an emergency situation, a police officer can shoot a person to
stop him/her from, say, killing school children or shooting a crowd).

that person will incur/suffer legal liability

So, how to avoid suffering legal liability ?

Forms of legal liability
1. Criminal Liability

If a person

commits a crime,

that person will incur criminal liability.

 What is a crime ?

 Crime is a highly dangerous conduct - violates the interest of the whole

society,
o e.g., murder, kidnapping, rape, or robbery.
 Which actions are (or are not) crimes ?
o That is specified in criminal law by the state
 Liability: punishment by the state.
o Criminal punishments = life imprisonment, term imprisonment, or a fine…
 In a criminal trial, the relationship is between the state and the individual.
 Criminal law is thus concerned with
o punishing the wrongdoer,
o deterring the wrongdoer and others from offending.
 2. Contractual Liability
o Liability incurred from breaching a
contract

• Contract is an agreement between

parties.

o Example:

• A local store does not deliver the TV to

you as agreed in the contract.

• The store will incur contractual liability.

 3. Tortious liability
• A tort …

o is a civil wrong

o violates a particular person's rights (e.g. rights to person, to property,

or to reputation…)

• Examples:
o Red drives carelessly and hits Blue, seriously damaging Blue’s car (carelessly causing
harm to another person’s property).

o John spills water on the floor => Cathy slips and falls - breaking her arm (carelessly
causing harm to another person).

o Tom punches Ben on his face (battery – intentionally causing harm to another person).

o Steve posts a wrong story about Cathy on Facebook (defamation - intentionally causing
harm to another person's reputation).
 Tort can be

intentional unintentional

Harm to person or
property of another
 Trespass
 Nuisance The tort of negligence
 Defamation
 Battery
Not
covered
in this
course !
 Tort ≠ Crime

TORT CRIME

• Violates a particular person's • Violates the common good (the

rights. interest of the whole society).

• Prosecuted and punished by

• Allows the victim to sue for damages the state.
(monetary compensation).

• Concerned with resolution of private • Concerned with punishment &

disputes & remedies. repression of crimes.
 Tort ≠ Breach of a Contract
• Both are civil wrongs:
o violate a particular person's rights
o the harmed person can sue for damages
o No criminal penalties
• However, tort ≠ a breach of a contract,

BREACH OF A CONTRACT
o Breach of obligations created
by the contracting parties.
o Contractual liability can
arise if there is a contract.
TORT
o Breach of a duty created by law,
e.g., duty of care, duty to respect
other people’s person and property
(We do not negotiate/create these duties,
but are imposed by law)
o Tortious liability can arise where no
only contract exists, even between complete
strangers.
 Note

• A single action => both criminal liability & tortious

liability.

• Example: drunk driving.

o Causing harm to a passenger => tortious liability;

o Drunk driving is a crime => can be prosecuted & punished = criminal

liability
 Note
• Similarly, a single action => both tortious liability & contractual
liability.

• Example: A Grab diver drives carelessly and hits a pedestrian. Because of

the accident, he cannot bring the passenger in his car to the airport as
scheduled.

o The driver can be sued by the pedestrian => tortious liability;

o The diver can also be sued by the passenger in his car => contractual liability
 4. Vicarious Liability
• Liability for the harm caused by … others
• Mainly incurred in the employer-employee context
• When will an employer be vicariously liable ?
• When the harmful act was done within the “scope of
employment”
(Century Insurance v Northern Island Road Transport Board [1942] 72
Ll.L.Rep. 119)

 What does it mean?

o The employee performs an authorized task
o For the benefit of the employer

• Example: the pizza delivery guy

 The Pizza delivery guy - Tom
• On the way to deliver a pizza…
• Tom caused an accident ?
• Would the pizza shop owner
be vicariously liable ?
But how about ?
• After delivering a pizza, Tom dropped by his
girlfriend’s house
• On the way back from his girlfriend’s
house…
• Tom caused an accident ?
• Would the pizza shop owner be
vicariously liable ?
 5. Statutory Liability
• Liability incurred from the breach of statutory law (other
than criminal legislation).

• Examples:
o Breaching Australian Consumer Law

o Breaching Traffic Law

o Breaching Intellectual Property Law

Part II

Carelessly causing harm:

THE TORT OF NEGLIGENCE

What is the tort of negligence ?

A person

commits a tort of negligence

if that person carelessly causes harm to another person

 Example
o A taxi driver - drives carelessly => causes an accident.

o A passenger - seriously injured.

o The taxi driver thus commits a tort of negligence.

o Is it still a tort of negligence if the driver intentionally hits a

tree to kill the passenger?

o Negligence is by far the most common type of tort.

Most acts that cause harm to others are the result of

carelessness rather than intent.
 Plaintiff v Defendant

• Plaintiff:

The injured party - who sues for damages

• Defendant:

The party causes harm - be sued by the plaintiff

 Tort of negligence: 3 requirements

The defendant committed a tort of negligence if

1. The defendant owed the plaintiff a duty of care

2. The defendant breached this duty of care,

3. The plaintiff suffered loss/damage/injury that was reasonably foreseeable (i.e. not
too remote).
 Requirement 1:
The defendant owed the plaintiff a duty of care

• ‘Duty of care’ – what is it ?

Duty/obligation/responsibility to be careful to avoid

causing harm to another person.

• When will the defendant owe the plaintiff a duty of care ?

• The answer is straightforward in some situations.

• This is where the relationship between the defendant and the

plaintiff falls within the established categories of duty of
care.
 The law already recognized that certain
relationships give rise to a duty of care:

YES The defendant owed the plaintiff

Established categories of
a duty of care
DOC

NO
Motorists - Road users
Doctors - Patients Reasonable Foreseeability Test
(Neighbour test)
Solicitors - Clients
Manufacturers - Consumers
Occupiers - Guests
For cases establishing these duties of
Architects - Clients care, see James, 2017, Business Law
4th ed., page 220 (Link is provided in
Employers - Employees the “Week 2 Readings” page).
 Let’s consider these situations…
1) After a heavy raining night - Ben slips
and falls on a footpath in RMIT
campus - breaking his arm.

• Does RMIT owe Ben a duty of care?

• Recognized duty of care ?

2) A doctor had left a surgical scissor

inside a patient’s body.

• Does the doctor owe the patient a

duty of care ?

• Recognized duty of care ?

 But how about this ?…
2) Tom throws a heavy chair through a window - which looks into a busy footpath. The
chair hits John, causing him serious injuries.

• Does Tom owe John a duty of care ?

• Recognized duty of care ?

 If not a recognized duty of care, the Reasonable
Foreseeability Test (Neighbour test) must be done

 Particularly, two elements of this test must be proven:

1) First, it must be shown that at the time of the incident
• it was reasonably foreseeable (i.e. predictable) that the
defendant’s conduct could cause harm to other people.
• Simply put, the conduct is potentially harmful to
others.
 Examples:
• Throwing a heavy chair through a window - Potentially harmful
to others ?
• Throwing a heavy object to students – Potentially harmful to
others ?
2) Second, the plaintiff is the ‘neighbour’ of the defendant.
o Neighbour in law - not people living next door to you.
o So, who is the defendant’s neighbour ?
o As established by Lord Atkin in Donoghue v Stevenson,
the ‘neighbours’ in law are those ones ‘who are so closely and directly
affected’ by the defendant’s conduct.
o Examples:
• If someone is driving carelessly on the road outside this campus now, are we his
neighbours (we are currently in the classroom)?
• Tom is in Building 1 now and he throws a heavy chair through a window - You are
studying in a different building, are you his neighbours ?
• If I am throwing heavy things toward you now - Who are my neighbours ?
o This second requirement is essential because even the conduct of the defendant is
potentially harmful to others, the defendant does NOT owe a duty of care to
every one in the world !
o He/she only owes a duty of care to those who can be closely and directly affected
by his behaviour.
 In general, the “neighbour test” requires you to prove that

1) the conduct of the defendant is potentially harmful to

others; and

2) the plaintiff is closely and directly affected by the

defendant’s conduct,

o If these two elements are satisfied

Þ the reasonable foreseeability test/‘neighbour test’ is satisfied

Þ the defendant owed the plaintiff a duty of care.

Introducing the Case Note Guide

The “Case Note Guide” has been posted on Canvas

(under both the “Assessment Task 1” page and the
“Assessment Task 3” page).

Please study this guide carefully and follow the

instructions therein closely in completing a Case Note
(Task 1, and possibly Task 3).
 Australian Guide to Legal Citation, 3rd
edition, or AGLC3.

• Your assignments in this course must contain appropriate

referencing following the Australian Guide to Legal Citation, 3rd
edition, or AGLC3. Detailed instructions about referencing in
LAW2447 - Commercial Law can be found in this link.  (The link is
also posted on the Canvas Assessment pages).

o Please study this guide carefully and follow the instructions

therein closely in completing all of your Assessment Tasks.