Chapter 9 - Established Duties of Care PDF

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Summary

Summary of Chapter 9 of Australian Torts Law, dealing with Established Duties of Care, which is the most common form of the first element of Negligence in Torts: Duties of Care....

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Chapter 9 – Established Duties of Care 1. Introduction -

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‘A defendant will only will only be liable, in negligence, for the failure to take reasonable care to prevent a certain kind of foreseeable harm to a plaintiff, in circumstances where the law imposes a duty to take such care’ A duty of care is ‘a particular and defined legal obligation arising out of a relationship between an ascertained defendant (or class of defendants) and an ascertained plaintiff (or class of plaintiffs) Duties of care may be classified into two categories: o Established duties of care – Determined by reference to the precedents established by similar cases, that is, the law recognises that certain relationships give rise to a duty of care o Novel duties of care – The facts do not fit within any of the established duties of care, but ‘the categories of negligence are never closed’

Scope of Duty of Care -

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The recognition of a duty of care, established or in a novel situation, does not impose an allencompassing duty Every duty of care is founded upon the ‘neighbour principle’, but not unlimited to scope o To take reasonable care so as not to expose the plaintiff to foreseeable risk of injury It is possible that the scope of an established duty is an issue if the facts of the case are outside the recognised scope The scope of the duty must be determined begore any inquiry into breach can be made as otherwise assumptions are made ‘about the content of the duty of care’ which ‘may fail to take fundamental aspects of the relationship between the parties into account’ It is important to define the scope of the duty, be it an established duty or a novel duty, as it must allow the issue of breach to be determined

Established Duties of Care -

The established duties of care that are examined are: o Occupiers of premises and entrants; o Employers and employees; o Road users and other road users; o Persons and authorities in control of others; o Professionals and clients; and o Manufacturers of goods and consumers

2. Occupiers of Premises -

Before the modern concept of negligence started to develop, the duty of care of an occupier was dependent upon the class of entrant Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479

Scope of the Duty -

The accepted scope of duty is that an occupier must take reasonable care to avoid foreseeable risks of injury to an entrant The scope of the duty is influenced by the type of premises occupied by the defendant

Legislation and the scope of duty -

Many Australian jurisdictions have included a statement of the scope of duty of care of an occupier in legislation

Warning signs -

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The circumstances in which an occupier has a positive duty to provide warning signs has been considered in a series of High Court cases o Hoyts Pty Ltd v Burns (2003) 201 ALR 263 An occupier’s duty to take reasonable care, as well at to impose a duty of prevent foreseeable harm to others

Landlords -

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Landlords and tenants are in a contractual relationship based on rights over land and, for this reason, the common law previously treated the relationship as special The general rule is that, outside of the contractual relationship, a landlord owed no duty to a lessee or others on the premises unless the landlord: o Conducted active operations or had undertaken repairs;  AC Billings & Sons Ltd v Riden [1958] AC 240 o Fraudulently concealed a defect;  Travers v Glaucester Corperation [1947] KB 71 o Was responsible for faulty design; or  Rimmer v Liverpool City Council [1985] QB 1 o The premesis were unfurnished when leased but were unfit for occupation and the injury resulted from their defective state  Charsley v Jones (1889) 53 JP 280 The relationship of landlord and tenant is considered under the duty of occupier and entrant due to the meaning of occupation

Liability for the criminal conduct of third parties -

An occupier’s duty of care does not extend to providing protection against criminal attacks by third parties There are situations, however, where the occupier is able to exercise control over access to, or the continued presence of persons on, the premises o In these circumstances, the scope of the occupier’s duty of care may extend to harm caused to persons on the premises by the criminal acts of third parties

3. Employers -

The duty of care which an employer owes an employee operates concurrently with those duties owed to the employee under the contract of employment An employment contract contains, as a matter of law, an express or implied term requiring the employer to provide a safe workplace Failure to provide a safe workplace will be grounds for an action for breach of contractual duty Employers and employees should be free to stipulate the amount of work which an employee agrees to perform under a contract of employment An employee may be compensated in the following ways:

An action un negligence against the employer based upon the personal duty of care owed by the employer; o Access compensation through the employer’s workers’ compensation insurance scheme; o An action in negligence against the employer, based upon the employer’s vicarious liability, if injured by another employee’s tort o An action in breach of statutory duty based upon the occupational health and safety legislation; and o An action in breach of contract for breach of the implied terms to provide a safe workplace Actions in negligence by employees are not common as the workers’ compensation schemes in each jurisdiction provide an easier path for compensation for personal injury o

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Scope of Duty -

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At common law, an employer owes a duty to its employees to take reasonable care to carry on its business in such a way as to not subject employees to unnecessary and foreseeable risks of injury o Smith v Charles Baker & Sons [1891] AC 325 The duty owed is a single duty but is traditionally divided into three headings: o Proper selection of skilled persons to manage and superintend the business;  Butler v Fife Coal Co Ltd [1912] AC 149 o Provision and maintenance of proper plant and equipment; and  Wilsons & Clyde Coal Co Ltd v English [1938] AC 57 o Provision of a safe system of work  Neill v New South Wales Fresh Food & Ice Pty Ltd (1963) 108 CLR 362 An employer’s duty only encompasses foreseeable risks In respect of those hazards which are foreseeable but cannot be avoided by the exercise of reasonable care and skill, the employee may have to accept the risk

Selection of competent staf -

An employer is required to exercise reasonable care and skill in the selection of competent supervisory staff and to ensure that the staff is properly trained to carry out their duties The employer is also required to maintain discipline among staff and to dismiss an employee who is a danger to other employees

Plant and equipment -

This part of the employer’s duty encompasses the work site, machinery and equipment If the employee is required to attend premises not occupied by the employer, the employer may still be liable Sinclair v William Arnott Pty Ltd; Kell & Rigby Pty Ltd (Third Party) (No 2) (1963) 64 SR (NSW) 88 at 92 Where the employer is also the occupier, the employee may be entitled to rely upon the breach of the duty of his or her employer, both as employer and as occupier o This component of the duty requires that the employer exercise reasonable care in the provision, maintenance and repair of plant and equipment o Therefore an employer must:

Ensure that the employer is able to use any equipment or machinery safely which may require training and instruction;  Provide suitable equipment; and  Have reasonable inspection and maintenance systems in place Liability for defects in equipment will arise only if such defects, including those due to the negligence of the manufacturer, could have been discovered by the exercise of reasonable care 

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Safe system of work -

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What is meant by ‘safe system’ has to be decided with reference to the particular case and is not capable of general definition A ‘safe system’ may be: o The provision of instruction o Particular equipment to help with the tasks involved o A warning o Supervision of the system of work to ensure it is correctly implemented to ensure there is no increased risk of harm If an employee is harassed, bullied or assaulted by a fellow employee, this may also be a failure of an employer to provide a safe system of work if such a behaviour is foreseeable The employer’s obligation to provide a safe system of work is not static but includes anticipating carelessness in compliance by employees If the employee is working at a third party’s premises, the employer still is responsible for maintaining a safe system of work

Non-delegable duty -

The duty of care owed to an employee to employees is regarded by the common law as being one of the those special duties that cannot be delegated

Legislation Occupational health and safety -

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The national uniform legislation imposes general duties upon persons conducting a business or undertaking to ensure the health and safety of workers so far as is reasonably practicable, by eliminating or minimalizing risks to health and safety so fare as is reasonably practicable. Under the national uniform legislation, a person conducting a business or undertaking has specific duties imposed upon them to: o Provide and maintain a work environment without risks to health and safety; o Provide and maintain safe plant and structures; o Provide and maintain safe systems of work; o Ensure safe use, handling, storage and transport of plant, structures and substances o Provide adequate facilities for the welfare of workers at work in carrying out work, including ensuring access; o Provide any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out; and o Monitor workers and the conditions at the workplace for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking Some workplaces are not within the operation of the national uniform legislation

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The national uniform legislation provides for different categories of offences

Workers’ compensation -

A worker receives a fixed measure of statutory compensation for injuries arising out of or in the course of employment The benefits are paid irrespective of the employer’s or employee’s fault, or of the age, experience of the employee, or the impact of the injury and are not designed to give full compensation

4. Road Users -

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It is well established that a duty of care is owed by every user of the road to every other road user, as well as to persons and property adjacent to the road Imbree v McNeilly (2008) 236 CLR 567 Most disputes occur, not in relation to the existence of a duty of care, but, rather, as to the appropriate standard of care owed, whether the duty has been breached, and, the appointment of damages If a motor vehicle accident takes place on someone’s property, then the relevant relationship for the duty of care may not be that of a road user

Scope of Duty -

The scope of the duty of care of a driver of a motor vehicle is to take reasonable care to avoid foreseeable risks to other road users A pedestrian is also a road user and therefore owes a duty of care to others on the road

Legislation -

The legislation does not impose any duty of care upon drivers but is for the purpose of achieving compensation for personal injury arising from the use of motor vehicles

5. Persons in Control of Others -

A person in control of others may also owe the persons themselves an affirmative duty of care to ensure that they come to no harm Recognised duties of care due to control are imposed upon: o School authorities; o Parents of young children; and o Prison authorities

School Authorities and Students -

When a student is at school, the school is in control and acting in place of the parent or guardian

Scope of the duty -

The scope of the duty of care is to exercise reasonable care and supervision to protect students from foreseeable risks of injury Geyer v Downs (1978) 138 CLR 91 The duty is not limited to when the student is not one school premises or the set school hours The duty owed by school authorities to their pupils may also be extended to school bus drivers

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Duty of care owed to students in terms of reasonable education

Non-delegable duty -

The vulnerability of children and the degree of control exercised over them by school authorities has resulted in the school authorities’ duty of care being classified as a nondelegable duty of care

Parent and Child -

There is no principle of parent immunity for negligent supervision of children Harriton v Stephens (2006) 226 CLR 52

Scope of the duty -

If the ‘particular situation’ gives rise to a duty of care, which may be due to the control the parent or guardian exercises over the child and the child’s vulnerability, the scope of that duty will be exercise reasonable care not to expose the child to foreseeable harm

Parent and Third Party -

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The general rule is that the law does not impose a duty upon a person to control the acts of another to prevent loss or harm to a third party Due to parental control, a parent may owe a duty of care to a third part to control their children in such a manner as to prevent them causing injury to third persons or to their property McHale v Watson

Scope of the duty -

The duty to control children also extends to those acting in the place of the parent

Prison Authorities and Prisoners -

Prison authorities owe a duty of care to prisoners and other detainees to prevent them being injured Howard v Jarvis (1958) 98 CLR 177 A duty will be owed by any body that has the authority to detain people

Scope of the duty -

The scope of the duty is that the gaoler must exercise reasonable care to avoid foreseeable risks to the prisoner Risks may arise from other prisoners as well as by other means The duty owed to prisoners should not, however, be equated to that owed by school authorities to their pupils...