Tort of Negligence

Define “Tort”

Civil wrong, other than breach of contract, that causes harm.

Define “Harm”

Personal injury, property damage, or financial loss.

Define “Compensation”

Monetary due to a ‘legal persons’ act or omission

Define “Legal Persons”

An individual, company, or entity recognized by law to have legal rights and obligations.

Define “Plaintiff”

A legal persons that makes a case about someone else in a court of law.

Define “Negligence”

The most common tort, negligence is doing something carelessly or failing to do something that should have been done.

What are the two forms of Negligence?

1. Misfeasance

2. Nonfeasance

Define “Misfeasance”

A legal act that is improperly performed.

Define “Nonfeasance”

Failure to act which results in harm.

What is the law of negligence?

One ‘legal person’ has a duty to take reasonable care not to cause harm to another ‘legal person’.

Name the 4 elements required to be established in a negligence case?

1. Duty of Care

2. Breach

3. Causation

4. Damage

Define “Duty of Care”

The legal obligation imposed on a legal person which requires adherence to a standard of reasonable care while performing any acts that could foreseeably harm others.

Define “Causation”

Injury would not have been caused but for the defendants actions.

What is the standard of proof in a civil trial?

All elements must be proven on the balance of probabilities.

Define “Strict Liability”

Plaintiff only needs to prove that the defendant took part in a particular act. Neither the defendants intentions or whether they demonstrated negligence is not required to be proven.

Define “Vicarious Liability”

Places liability on a person or party separate to the person or party that conducted the act/s which led to harm.

Define “Element of Proximity”

The parties must be sufficiently close so that it is reasonably foreseeable that one party’s negligence would cause loss or damage to the other.

What are the two types of precedent?

1. Binding precedent

2. Persuasive precedent

Define “Binding Precedent”

A legal principle that must be followed. The decision of a higher court in the same hierarchy is binding or must be followed by lower courts in the same hierarchy when deciding similar or “like” cases.

Define “Persuasive Precedent”

Not binding in courts, from noteworthy / highly regarded cases, can be influential in some courts. From courts in another hierarchy, lower courts in same hierarchy, or different hierarchy and same level, or obiter dicta.

Define “Obiter Dicta”

A judges expression or opinion in court which is not essential to the decision and therefore not legally binding.

Define “volenti non fit injuria”

Otherwise known as voluntary assumption of risk, this is a defense that outlines there can be no claim to negligence where a person willingly consents to the risk that caused the injury.

Define “No Duty Owed”

A defense where the defendant claims that it was not reasonable to foresee that the action would cause the damage suffered.

Define “Duty of Care Not Breached”

A defense which is only applicable if the defendant acted as any reasonable person would and the damages are a result of an accident or could not be reasonably stopped or prevented.

Define “No Damage Suffered”

A defense where the defendant affirms the breach of their duty of care but argues that the plaintiff suffered no damage.

Alternatively the defendant many claim that the damage suffered by the plaintiff was not the result of the defendants breach.

In terms of ILAC, what is ISSUE?

Raising the legal issue which took place according to the facts of the case given and the law of negligence.

In terms of ILAC, what is LAW?

Outlining and explaining law and its accompanying elements applicable based on the given facts of the case. INCLUDES PRECEDENTS, CASE LAW, ETC

In terms of ILAC, what is APPLICATION?

Applying the given facts of the case to the law you previously outlined and stating the defenses which could be used against the plaintiff to mitigate monetary due.

In terms of ILAC, what is CONCLUSION?

Make final statements assessing if the defendant would be held liable or not liable. Include the likelihood of success in their defense.