Torts

What the unit requires

The potential compass of this area is so large that considerable variation might be anticipated. At the very least, there should be a study of negligence and of a representative range of torts, with some consideration of defences and damages, and of alternative methods of providing compensation for accidental injury. Examples of these topics are: concurrent liability, defamation, economic torts, nuisance, breach of statutory duty and compensation schemes.

• a Negligence, including defences
• b A representative range of torts (other than negligence) and their defences
• c Damages
• d Concurrent liability
• e Compensation schemes,

Topics and descriptor are the instrument's own words, transcribed in curriculum-spine-data.ts. UAR Sch 1 cl 2 states that the topics need not all be taught in a single subject, so the mapping from units to topics is many-to-many.

The ideas that decide the mark

• Duty is a question of law; breach is a question of fact

  Whether a duty exists is decided by the court on principle, before any facts are found. Whether it was breached depends on what a reasonable person would have done in the defendant's position. The civil liability statutes modify breach and causation; they do not abolish duty.

  The usual error: Merging duty and breach into one "was the defendant negligent?" enquiry, which then cannot locate the error when the answer is wrong.

• The "calculus of negligence" is a framework, not a formula

  Probability of harm, gravity of the consequences, burden of eliminating the risk, and the social utility of the activity are weighed, not scored. No factor is decisive, and a low probability can still found a duty where the harm would be catastrophic.

  The usual error: Treating "the risk was unlikely" as a complete answer, which ignores that seriousness of harm can outweigh probability.

• Factual causation and scope of liability are two separate questions

  The statutory test asks first whether the negligence was a necessary condition of the harm, and second whether responsibility for that harm should be attributed to the negligent party. Both must be answered; the second is where policy, remoteness and novus actus live.

  The usual error: Establishing "but for" and stopping, which proves cause in fact and says nothing about whether the loss falls within the scope of the duty.

• Remoteness concerns the kind of damage, not its extent

  A defendant takes the victim as they find them. If the kind of harm was reasonably foreseeable, the defendant is liable for the full extent, including unexpected severity and unforeseeable consequences flowing from that harm.

  The usual error: Applying the thin-skull rule as though it excused liability where the extent was unforeseeable. It does the opposite.

• Salient features replaced proximity as the duty test

  Foreseeability plus a relationship of "proximity" was found to be conclusory. Duty is now reasoned from features: control, reliance, assumption of responsibility, vulnerability, coherence with other legal obligations.

  The usual error: Invoking proximity as though it settled a novel duty question. It is now the label for a conclusion, not a reason for one.

How it is assessed

• Problem questions with a clear act, a harm, and at least one novel-duty question. The marks are in the duty analysis, not the breach.
• Statutory interpretation questions, because the civil liability Acts differ between jurisdictions and the answer follows the applicable Act.
• Essay questions on policy: the relationship between tort and statute, the compensation schemes, and the boundaries of duty for pure economic loss or mental harm.

The weighting between problem and essay, and whether the unit is taught on the civil liability Act of one jurisdiction or comparatively, are institution-specific facts. Not recorded here — see the gap note in Part 3.

The authorities

Each was resolved against the corpus. Where a paragraph could be verified it is given; where it could not, the case is cited without one rather than with an invented paragraph.

• Sullivan v Moody (2001) 207 CLR 562Pinpoint verified

  The salient-features approach, and coherence as a reason to deny a duty.

  Cite at [2001] HCA 59 at [9] (Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ)

• Tame v New South Wales (2002) 211 CLR 317Pinpoint verified

  Duty of care for mental harm, and the limits of foreseeability as a control device.

  Cite at [2002] HCA 35 at [51] (Gaudron J)

• Wyong Shire Council v Shirt (1980) 146 CLR 40Held, no pinpoint

  The calculus of negligence, including the "not far-fetched or fanciful" threshold for foreseeability.

  held, but no paragraph of the AustLII text ranked as discussing this proposition — cite the case without a pinpoint

• March v Stramare (E & M H) Pty Ltd (1991) 171 CLR 506AustLII paragraph

  Causation at common law, and why common sense and value judgement are part of it.

  Find it at (1991) 171 CLR 506, AustLII [6] (Deane J) — AustLII's own numbering. This judgment predates paragraph numbering, so cite the case without a pinpoint in an exam.

• Strong v Woolworths Ltd (2012) 246 CLR 182Pinpoint verified

  The statutory necessity test applied to an evidential gap — the clearest statement of what factual causation requires.

  Cite at [2012] HCA 5 at [29] (French CJ, Gummow, Crennan and Bell JJ)

• Wallace v Kam (2013) 250 CLR 375Pinpoint verified

  Scope of liability as a distinct question, where the harm was factually caused but outside the duty's scope.

  Cite at [2013] HCA 19 at [12] (French CJ, Crennan, Kiefel, Gageler and Keane JJ)

• Chapman v Hearse (1961) 106 CLR 112Held, no pinpoint

  Reasonable foreseeability of the class of harm, and how intervening acts are assessed.

  The copy of this judgment in the corpus does not preserve verifiable paragraph numbering, so no paragraph pinpoint can be checked against it — which is not a statement about whether the judgment is numbered in the report. Cite the case without a pinpoint. The passages below are the judgment itself, so rely on what they say rather than on recollection, and do not attach a paragraph or page number to them.

• Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420Pinpoint verified

  The civil liability provisions applied properly, and the error of analysing breach by reference to the wrong duty.

  Cite at [2009] HCA 48 at [12] (French CJ, Gummow, Hayne, Heydon and Crennan JJ)

• Sydney Water Corporation v Turano (2009) 239 CLR 51Pinpoint verified

  Duty and causation in a novel factual setting, and the discipline of identifying the precise risk.

  Cite at [2009] HCA 42 at [28] (French CJ, Gummow, Hayne, Crennan and Bell JJ)

• Roads and Traffic Authority of NSW v Royal (2008) 245 CLR 1Held, no pinpoint

  The relationship between foreseeability and the burden of precautions in a road-authority setting.

  held and numbered, but no paragraph ranked as discussing this proposition — cite the case without a pinpoint

The method

1. State the elements as a sequence and keep them separate: duty, breach, damage, causation (factual then scope), and defences.
2. For duty, identify the established category if there is one, and only then reason from salient features. Never start from features where a settled category applies.
3. For breach, identify the specific risk of harm, not "the risk of injury". The calculus operates on a described risk, so an undefined risk cannot be weighed.
4. For causation, answer "necessary condition" with the evidence, then answer scope of liability as a separate paragraph headed as such.
5. For defences, deal with contributory negligence as a reduction and voluntary assumption of risk as a complete defence, and do not conflate them.

What loses marks

• Inventing a novel-duty analysis where a settled category applies

  It signals unfamiliarity with the established law and wastes the marks available for the real issue.

• Weighing an undefined risk

  The calculus operates on a described risk of harm. "Risk of injury" cannot be assessed for probability or seriousness.

• Treating "but for" as the whole of causation

  It answers factual causation only, and leaves scope of liability — where most modern marks are — untouched.

• Conflating contributory negligence with voluntary assumption of risk

  One reduces damages, the other is a complete defence with a knowledge and acceptance requirement.

• Quoting the common law when a civil liability Act governs

  The statutes displaced parts of the common law. The answer must run on the applicable Act, with the common law as background.