Torts Course - Tort of Negligence Study Notes

Introduction to Torts Course and the Tort of Negligence

  • Instructor: Joe Manning

  • Greeting to students for semester two of the Torts course.

Instructor Background

  • Joe Manning’s journey as a law professional:

    • Completed undergraduate law and arts degree.

    • Worked as a prosecuting solicitor in Auckland.

    • Postgraduate studies in America.

    • Joined a commercial law firm and then the faculty decades ago.

  • Research interests:

    • Initially focused on tort law, then health law.

    • Served as a consumer representative on a disciplinary tribunal for doctors for ten years.

    • Worked as a lawyer member of an ethics committee advising the Ministry of Health on national ethical standards.

  • Personal background:

    • Husband who is a practicing lawyer.

    • Three adult children with grandchildren living in Auckland and London.

Course Structure

  • Main topic: Tort of Negligence which involves:

    • Duty of care

    • Breach of duty of care

    • Causation

    • Remoteness

  • Additional topic: Defences to a cause of action in negligence.

Course Schedule

  • First four weeks focused on:

    • Core elements of negligence.

    • Break for a couple of weeks with Dr. Anna Broadmoor.

  • Topics to be covered:

    • Claims for pure economic loss (Dr. Broadmoor).

    • Claims for pure mental injury in negligence (Joe Manning).

    • Further topics in applied negligence (Dr. Broadmoor).

  • Reading materials and resources:

    • Available on modules in Canvas.

    • PDF extracts of certain cases provided.

Overview of Tort Law in New Zealand

  • Unique Feature:

    • Civil damages actions for personal injuries covered by the accident compensation scheme are not permitted due to Section 317(1) of the Accident Compensation Act.

    • Defines damages arising from personal injury not claimable in court, only other remedies allowed.

  • Exception:

    • Exemplary damages are not precluded under Section 317 and are intended to punish the defendant for outrageous conduct.

    • Encapsulated in Section 319 of the Act: Allows for legal proceedings for conduct resulting in personal injury covered by the Act, if it intends to deter and punish.

Threshold for Exemplary Damages

  • Threshold established through the Couch v. Attorney General No. 2 case:

    • Subjective recklessness must be proven for exemplary damages.

    • Courts reluctant to let exemplary damages substitute compensatory damages to avoid undermining the Compensation Act.

Significance of the Tort of Negligence

  • Focus for the entire semester.

  • Complexity and unpredictability compared to other torts.

    • Highlighting the dynamic nature of negligence law with varying case outcomes based on different judges' interpretations.

  • Policy considerations play a significant role in negligence cases:

    • Often influence legal principles and outcomes.

Duty of Care

  • Core Issue in negligence claims:

    • Whether the defendant owed the plaintiff a duty to take reasonable care.

  • Absence of Duty:

    • Lack of a duty of care allows for careless behavior without liability.

  • Established Duty Situations:

    • Drivers towards passengers and pedestrians.

    • Employers towards employees.

    • Doctors towards patients.

  • Framework for determining new duty of care in novel circumstances:

    • Is it fair, just, and reasonable to establish a duty in these circumstances?

Breach of Duty of Care

  • Determined by:

    • Assessing if the defendant fell below the legally required standard of care.

  • Objective standard of the reasonable person is used to evaluate conduct.

  • The duty element is critical and often contentious.

Causation and Damage

  • Integral to negligence claims:

    • Plaintiffs must prove harm resulted from the defendant’s breach of duty.

  • Causation in Fact:

    • Often assessed with the “but for” test.

    • If the defendant’s breach did not cause the injury, no liability.

Additional Issues in Negligence Actions

  • Remoteness of Damages:

    • Courts determine if damages are too remote from the breach to impose liability.

  • Legal Causation:

    • Concerned with intervening causes (Novus Actus Interveniens).

Scope of Duty

  • Defined by the principle that defendants are not liable for losses outside their duty of care.

  • Relevant especially in negligent misstatement cases.

  • Needs clarification through hypothetical scenarios (e.g., the mountaineer injured not through related negligence).

Interrelation of Legal Concepts

  • Duty of care, breach, and causation often interconnected.

  • The common narrative supports the overarching theme of fairness and policy in determining negligence.

Defences to Negligence Claims

  • Defendants can negate essential elements or raise affirmative defences.

  • Key defences:

    • Volenti non fit injuria (assumption of risk): Absolute defence where a claimant knowingly accepts risk.

    • Contributory negligence: Damages apportioned when both defendant and plaintiff share fault.

Lecture Engagement

  • Completion of the reading of cases, such as Blythe v. Birmingham Water Works.

  • Understanding key concepts and policy factors influencing negligence law.

  • Emphasis on practical implications and real-world application of tort principles.