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1. T H E L A W O F T O R T S
NEGLIGENCE

2. THE NATURE OF TORTS
• A tort is a civil wrong
• The law of torts deals with the rights and obligations
people owe to others and the infringement of these
rights and obligations
• The purpose of the law of torts is to provide
compensation or damages to the people whose
rights have been infringed.

3. LAW OF TORTS
• Torts are separated into categories and include:
• Negligence
• Defamation
• Nuisance
• Trespass

4. NEGLIGENCE
• Negligence is defined as … ?

5. NEGLIGENCE
• Negligence is defined as a failure to take
reasonable care.
• A person is obliged to take reasonable care in
regard to other people, where it is reasonably
foreseeable that other people could be harmed by
their actions or omissions.

6. NEGLIGENCE
• When bringing an action for negligence it must be
proved that:
• The person who was negligent owed a duty of care
to the person injured,
• The duty of care was breached and
• The breach of duty of care caused harm.

7. NEGLIGENCE
• So, what does Donohue v. Stevenson (1932) and
Grant v. Australian Knitting Mills (1936) have to do
with the tort of negligence?

8. NEGLIGENCE
• The law of negligence has grown to cover a range
of areas where people must take reasonable care
so that their acts or omissions do not harm others.
• What are some areas you can think of where the
law of negligence would apply?

9. NEGLIGENCE
• So, if I believe someone has been negligent toward
me, what do I need to do?
• In small groups, answer the following:
• if I believe someone is negligent toward me, do I take
action, or do the police? What is this called?
• When taking civil action for negligence, what 3 things need
to be present?
You have 6 mins for this task.

10. NEGLIGENCE
if I believe someone is negligent toward me, do I
take action, or do the police? What is this called?
• The plaintiff brings the civil action against
the defendant. This is called the ‘burden
of proof’ as the burden (or the task, the
job, the responsibility) falls on me to
prove the defendant caused me a loss or
damage.

11. NEGLIGENCE
• When taking civil action for negligence, what 3
things need to be present?
• I need to prove a duty of care exists,
• There was a breach of that duty of care
• And that I suffered injury, harm of loss as a
result of that duty of care

12. DEFENCES TO NEGLIGENCE
• The defendant can claim the plaintiff has not
established the three elements of negligence. The
defendant will try to prove that a duty was not
owed, or a duty was not breached or that the
damage or injury was too remote from the
defendant’s act or omission.

13. DEFENCES TO NEGLIGENCE
• There are 2 defences to negligence:
• Contributory negligence
• Voluntary assumption of risk
• What definitions can you come up with to explain these
defences?

14. YOUR TURN…
• Form your groups appointed by Mrs Fleming
• Appoint a scribe (someone to write answers down)
• Appoint a spokesperson who will report back to
class
• Complete the following case studies

15. STOCKS & ANOR V. BALDWIN, NSW
COURT OF APPEAL
• The pedestrian sued the driver of the car that hit
and injured him. In the original case, the court
heard a pedestrian walked across stationary traffic
and without pausing, walked into the path of the
defendant’s car. The driver had been travelling at
30-35km/h in a kerbside lane on a wet, murky
afternoon. The court found the driver was 60% to
blame because he should have been looking out
for pedestrians who might be doing foolish things.
In other words, it was reasonably forseeable a
pedestrian might walk out into the path of his car.
The defendant did not agree and appealed. The
court of appeal dismissed the appeal.

16. • What are the main elements that must be proved in
a case of negligence?
• Who is the neighbour in this case?
• Who is the plaintiff and who is the defendant in the
original case?
• Do you think the injury caused to the plaintiff was
reasonable foreseeable? Give reasons.
• Do you think that a duty of care was owed to the
pedestrian by the driver? Explain.

17. BOURHILL V. YOUNG
• Mrs Bourhill was getting off a tram when a motorcyclist
sped past on the other side. She heard the collision
between the motorcycle and a car. Mrs Bourhill was 8
mths pregnant and the collision occurred 15m from Mrs
Bourhill. She walked around the tram and saw the
aftermath. There was blood everywhere and the
motorcyclist was dead. She suffered shock and as a
result had a miscarriage. Mrs Bourhill sued the estate of
the motorcyclist claiming his negligence had caused her
shock. The court ruled Mrs Bourhill had been protected
by the tram and didn’t see the accident. It was held the
motorcyclist did not owe her a duty of care as he could
not have foreseen the potential danger and the
damage was too remote from the negligent act.

18. • Why did Mrs Bourhill claim that the motorcyclist had
been negligent?
• What is the meaning of ‘remoteness of damage’?
• What did the court decide in this case?
• What were the reasons for the decision in this case?

19. VICTIM OF A FALLEN TREE
• Mrs Harper was camping at a nature reserve and
was badly injured when a 28m tree fell on her. A
County court judge found the Dept of Natural
resources and environment had breached their
duty of care by failing to put up signs warning of the
danger of hazardous trees. The judge ruled the
injuries were a foreseeable consequence of the
defendant’s breach of duty. The Victorian court of
appeal reversed the decision.
• Why did the court of appeal reverse the decision?
• What defence/s could apply here?