Managers and the Law
? Torts generally
? Negligence
? Trespass
? Defamation
? Nuisance
Tort provides remedies in the form of
damages as compensation for,
= direct financial consequences eg loss of
wages,earning,profits and expenses
incurred as a result of the loss or injury;
= non-pecuniary consequences of a tort
being inflicted eg pain and suffering,loss
of some amenity eg not being able to
engage in a pleasurable activity,
Jaensch v Coffey (1984) 155
CLR 549),
a) there must exist an identifiable duty
of care between the parties;
b) the standard of care expected must
be able to be identified; and
c) there must have been resulting and
measurable damage,
a) the plaintiff was owed a duty of care;
b) the required standard of care was
breached; and
c) the breach caused the damage
which was of a kind that was a
foreseeable consequence of the breach,
Contributory negligence on the part of
the plaintiff
Law Reform (Miscellaneous Provisions)
Act 1955 (ACT) s 15
Civil Wrongs Act 2002
The Insurance Commissioner
v Joyce (1948) 77 CLR 39
Volenti non fit injuria
Wyong Shire Council v Shirt
(1980) 146 CLR 40
Paul Maurice Nagle v Rottnest
Island Authority F.C,93/016 (1993)
Aust Torts Reporter 81-211 (1993)
112 ALR 393 (1993) 67 ALJR 426
Trade Practices Act section 53 (g)
Volenti non fit injuria
Intentional Injury,Assault
Canterbury Bankstown Rugby
League Football Club Ltd v
Rogers,Bugden v Rogers
(1993) ATR 81-246
The Elements
1,A Duty of care
a,Foreseeability
Bolton v Stone [1951] AC
850
Miller v Jackson [1977] QB
966
Wyong Shire Council v Shirt
(1980) 146 CLR 40
b,Proximity (physical,
circumstantial or causal)
Donoughue v Stevenson
(1932) AC 562
Sutherland Shire Council v
Heyman (1985) 157 CLR 424
c,Reasonable reliance
Council of the Shire of
Sutherland v Heyman (1985)
157 CLR 424
?o Professional persons and their clients
assessed by reference to prevailing community
standards;
o Negligent misstatements where the person
making it possesses a special skill or
knowledge and the person to whom it was
made reasonably acted on it to their detriment;
o Employers and their employees with
respect to safe systems of work
o School authorities with regard to the
provision of a safe environment for students
o The driver of a motor vehicle to the person
and property of other users of the road (but see
Gala v Preston (1991) 172 CLR 243,where a
drunken driver was not held liable for injury to
equally drunken passengers who set out on a
joy ride in a stolen car with a view to committing
further offences)
o Manufacturers and consumers (see both
case law and Legislation)
o Suppliers of dangerous goods and the
public
o Bailees of goods while those goods are in
their possession eg Carriers owe a duty of car
with respect to their passengers and freight
Builders extending to later owners of the
property who were not the original owner
generally
Bryan v Maloney (1995) 182
CLR 609
However,this does NOT exist in circumstances
of,
(i) Charity and compassion which
exists where for instance a donation is given to
help someone
(ii) Drivers of exempt motor vehicles
(ambulances etc) where they exercise
reasonable care,notwithstanding their
contravention of the rules of the road,
Patterson v McGinlay (1991)
55 SASR 258,
2,A Standard of care must
be established
Paris v Stepney Borough
Council [1951] AC 367
Cook v Cook (1986) 162
CLR 376
Mercer v Commissioner for
Road Transport and
Tramways (1936) 56 CLR
580
Pacific Acceptance
Corporation Ltd v Forsyth
(1970) 92 WN (NSW) 29
3,Causation,
The issue of Remoteness
apply the,but for” test
Yates v Jones (1990 Aust Torts
reports)
Damages recoverable
Overseas Tankship (UK) Ltd v
The Miller Steamship Co Pty
Ltd (The Wagon Mound No.2)
[1967] 1 AC 617
Nominal
Compensatory
Aggravated
Exemplrary
Compensatory
a) Personal injury – this comprises
pecuniary (money) and non-pecuniary (includes
pain and suffering etc) damages;
b) Economic loss is where the
economic interests of the plaintiff are injured,
Caltex Oil (Australia) Pty Ltd v
The Dredge Willemstadt
(1976) 136 CLR 529
Hawkins v Clayton (1988) 164
CLR 539
Insurance
?Occupier?s Liability?
DIANNE MAREE
HACKSHAW v,GEORGE
SHAW (1984) 155 CLR 614
Australian Safeway Stores v
Zalunza (1987) 162 CLR 479
F.C.87/008
Duties owed to spectators
Australian Racing Drivers
Club Ltd,v,Metcalf (1961)
106 CLR 177
Duties as between
performers
Obligations of Schools and
Teachers
The Commonwealth v
Introvigne (1982) 150 CLR
258
Assault or trespass to the
person
David Graeme Sibley v,
Slavoljub Milutinovic
Defamation
qualified privilege
= The statement was made to a
restricted body;
= It was not malicious
= It was not published beyond the
restricted group,
Ettingshausen v Australian
Consolidated Press (1991
McDonald v The North Queensland
Newspaper Company Ltd [ 1997] Qd R
62
Lloyd v David Syme 1985 60 ALJR 10
Austin v Mirror Newspaper Ltd
(1985) 63 ALR 149
Victoria Park Racing and
Recreation Grounds Company
Limited v Taylor (1937) 58
CLR 479
Intellectual Property
& Knowledge Management
Types of property
REAL PROPERTY
PERSONAL PROPERTY
TANGIBLE
INTANGIBLE
Introduction to Intellectual
Property
? Intangible property,a chose in action
? Definition/ characteristics of IP
Types of intellectual property
? Statutory protection
– copyright
– patents
– trademarks
– designs
– plant breeders rights
– circuit layouts
– TPA
– Domain names?
? General law
– trademarks
– confidential
information
– Passing off
Copyright
? A set of rights granted to an author (as a
general rule) of subject matter which falls
into one of the protected categories,
? Moral rights and performers rights
Designs
? Protection for the appearance of an article –
for example,a pattern applied to it,or the
shape of it,There is a threshold requirement
of novelty or originality
? Based on a system of registration,
? Grants a monopoly,
Patents
? A set of exclusive rights granted to an
inventor,
? The invention has to be novel,inventive and
useful,
? Grants a monopoly for a limited period,
? Based on a system of registration,
Trade marks
? A distinctive mark applied to goods and
services to distinguish them,
? Based on a system of registration,
? Gives the owner the right to prevent others
using the same mark or one which is
deceptively similar in relation to similar
goods and services,
Types of IP - others
? Circuit layouts
? Plant Breeders rights
? Common Law – Passing Off
? Protection of Confidential Information
Theories for protecting IP
? Encouraging creativity
? Moral arguments
? Economic arguments
Criticisms of IP rights
? Stifle creativity
? Limit access to things which may be
beneficial to the public
? Creates monopolies/ potential for abuse
? These criticisms are addressed to some
extent by the exceptions and defences to
infringement
The international framework