A question about negligent action on the case tort claim?

My textbook says: ‘to successfully argue an action for indirect infliction of personal injury based on ‘action on the case’ (as opposed to trespass etc’, one must prove that the act, although indirect, was nevertheless intentional (fault) and resulted in harm.’

Can the act in question be an ommision, rather than a positive act? For e.g. Jim intentionally ommitted to reverse his car off the officer’s foot.

fault: By fault, does this mean intention? An by intetnion, does it need advertence? Is this intentional, for this purpose: a man speeding down a highway because he was intoxicated and ended up injuring a passenger.

harm: who determines what forms of harm are covered by under action on the case?

indirect: How indirect can the act be? Are there limits? Can the answer be found in a certain case? (australian please)

thanks in advance

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    3 Responses to “A question about negligent action on the case tort claim?”

    1. Yellow Alarm Clock Says:

      An omission may constitute negligence (which has basically replaced the ‘action on the case’) but only where there is a duty to act.
      An omission cannot constitute trespass; there needs to be a positive act. However, the example you give actually would be trespass. Failing to remove a car from a police officer’s foot was found in Fagan v Metropolitan Police Commissioner to constitute a continuation of the act of driving onto the foot. So it wasn’t actually an omission. Another way of looking at it (which probably makes more sense) is to say that an omission can constitute trespass, if the defendant has by their own actions created the relevant situation. So if you leave your car on the officer’s foot, that’s battery. If you lock someone up with their consent, but then unreasonably refuse to let them leave when they ask, that’s false imprisonment. You should probably avoid using the term ‘omission’ in this context (as per Fagan) but it’s a pretty arbitrary distinction.

      ‘Fault’, in this context, means intention, recklessness or negligence. The man speeding down the highway is at least negligent.

      There is no simple answer as to what forms of harm are covered. Some of this is covered by legislation. Refer to the Civil Law (Wrongs Act) 2002 (ACT); Civil Liability Act 2002 (NSW); Personal Injuries (Liabilities and Damages) Act 2003 (NT); Civil Liability Act 1936 (SA); Civil Liability Act 2002 (Tas); Wrongs Act 1958 (Vic); and Civil Liability Act 2003 (WA). Otherwise, it’s basically open to the plaintiff to make an argument as to how they have been harmed.

      The test for remoteness of damage is whether damage of that type was reasonably foreseeable. The relevant case is The Wagon Mound (No 1), which is a decision of the Privy Council on appeal from the Supreme Court of New South Wales. You can read it here: http://www.bailii.org/uk/cases/UKPC/1961/1.html

    2. TheOrange Evil Says:

      I’m not Australian, but in the United States, an act of omission can be negligent if there’s a duty to act.

    3. Sheff Says:

      By indirect are you referring to the "relationship of proximity", if so, then that is one of your limits.