Duty of care 1 - Lecture notes 5 PDF

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Topic five Elements of negligence For Negligence P must prove on the balance of probabilities the following elements: 1. Duty of care The defendant must owe a duty to the plaintiff not to create the risk of injury that occurred. 2.Breach of duty The defendant must have fallen below the standard of care expected of a reasonable person engaged in that activity. 3.Causation The plaintiff must prove a causal connection between the particular breach by the defendant and the actual injury which she suffered 4.Remoteness of damage The injury caused by the breach must have been reasonably foreseeable.    

It must be remembered that the plaintiff carries the burden of proving each constituent element. This is due to the fact that each of the requirements constitutes a device for limiting the extent of the defendant’s liability for their careless acts and omissions. The onus then shifts to the defendant to plead and establish any available defence, such as contributory negligence or voluntary assumption of risk. The defence of contributory negligence is raised after the defendant’s liability has prima facie been made out, whereas the defences of illegality and violent non fit injury are often argued as threshold issues affecting the defendant’s duty of care where otherwise their liability would have been established.

Plaintiff then has to prove damage  In addition to the above elements, the plaintiff must establish that she has suffered a legally recognisable form of damage. Unlike trespass, negligence is not actionable unless the plaintiff has suffered damage. The compensable forms of damage are: - Physical injury - Property damage - Economic loss. And - Psychiatric injury

The last type of damage refers to a recognised psychiatric injury, such as post-traumatic stress disorder. Transient emotions (such as stress, fear, sadness) or inconvenience are not recognised forms of damage that are compensable in a negligence action. LEGISLATIVE REFORMS re Negligence Actions The Wrongs and Other Acts (Law of Negligence) Act 2003 was enacted late in 2003 and inserted a number of new provisions into the Wrongs Act 1958 relating to negligence actions. The three main new Parts that were introduced were: Part X which sets out some general negligence principles, Part XI which sets out principles relevant to claims for psychiatric illness, and Part XII which sets out principles relevant to claims against public authorities.

Some of these provisions merely reflect the existing common law (see, eg, s 50) whereas others effect a significant modification of the existing law: see, eg, s 59. However, except as provided, the provisions are not intended to affect the common law: see, eg, s 47. These new Parts apply ‘to any claim for damages resulting from negligence, regardless of whether the claim in brought in tort, in contract, under statute or otherwise’: see, eg, s 44. These provisions can, however be excluded or modified by a contract between the parties: see, eg, s 46. Don’t apply to traffic accidents and workers compensation claims

Duty of Care General  A defendant will only be liable, in negligence, for 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; Sullivan v Moody.  The plaintiff must establish that the defendant owed a duty to the plaintiff not to create the risk of injury that occurred. Historical overview of duty of care: Prior to Donoghue v Stevenson Duty of care originally restricted to: 1. Certain legally recognised relationships, eg:  Persons in ‘common’ callings and their clients  Public officers and members of the public  Occupier and invitee Heaven v Pender 2. Cases where there was privity of contract between the parties. Winterbottom v Wright(1842) 152 ER 402.

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Donoghue v Stevenson [1932] AC 562 Lord Atkin formulated a generalised duty of care which came to be accepted in later decisions (Grant v Australian Knitting Mill) and which founds the basis of the modern notion of duty of care. In that decision Lord Atkin formulated his famous ‘neighbour test’ Neighbour Test “in which he said that defendants must take reasonable care to avoid acts or omissions that they can reasonably foresee will injure their neighbours”

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‘Neighbours’ were defined as ‘people so closely and directly affected’ by the defendants’ actions that they ought reasonably to be in the defendants’ contemplation. Reasonable care must be taken to avoid acts or omissions that you can reasonably forsee will injure your ‘neighbour’ A ‘neighbour’ is a person who is so closely and directly affected by my act that I ought reasonably to have them in contemplation when engaging in that act.

Donoghue v Stevenson Facts: In 1928, Mrs Donoghue went to a cafe in Scotland with her friend. The friend bought a ginger beer for Mrs D. (privity of contract issue). The Ginger beer was manufactured by Stevenson and sold via a distributor in an opaque bottle so its contents were not visible. Upon the second pouring of the bottle the decomposed remains of a snail emerged. The matter went to the House of Lords

and Mrs D won.

Modern requirements of a duty of care 1. reasonable foreseeability of the plaintiff as a member of a class of persons at risk of being harmed by the defendant’s activities. 2. In novel or developing categories of case, a ‘special relationship’ between parties. This entails an evaluation of various ‘control factors’ or the ‘salient features’ of the relationship; ie evaluation of factors for and against imposition of liability  Sullivan v Moody  A duty of care will be denied where policy factors support an immunity from liability Established categories of duty of care:

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A doctor owes a patient a duty of care to act reasonably in the provision of medical advice and medical treatment: Rogers v Whitaker. A driver owes a duty of care to road users and passengers to take reasonable care when driving, eg must keep a reasonable lookout and exercise reasonable control over the vehicle: Derrick v Cheung. (This duty would also extend to rescuers where it is reasonably foreseeable that they might got to the assistance of an injured road user and themselves be put at risk of injury: Chapman v Hearse) – gold course cases A manufacturer owes a duty of care to consumers to take reasonable care when manufacturing a product: Donoghue v Stevenson. (We will return to product liability in MLL217 next trimester.) A solicitor owes a client a duty to care to act reasonably when providing professional advice and conducting professional activities: Hill v Van Erp. (Though see below the immunity covering the negligent conduct of court work.) Occupiers owe a duty of care to entrants to take reasonable care to ensure the physical condition of the premises is reasonably safe: Australian Safeway Stores Pty Ltd v Zaluzna. A landlord owes a duty of care to take reasonable steps to ensure the premises are free from defects: Jones v Bartlett. An employer owes a duty of care to an employee to ensure a safe system of work: McLean v Tedman. A school owes a duty of care to a pupil to provide reasonable supervision to ensure the pupil is not injured (including by other pupils): Geyer v Downs A public authority owes a duty of care to an entrant onto its land or the facilities is manages. RTA v Dederer, Vairy v Wyong SC.

However, a more detailed analysis of duty of care (by reference to the two requirements mentioned above) will be required where: a) the category of duty of care is novel or is still being developed, or b) the scope of the duty of care is an issue, or c) policy considerations militate against a finding of duty of care

In cases that don’t fall within an established category the courts need to examine issues of reasonably forseeeablity and weigh a range of factors to determine whether a duty of care is owed.

Reasonable foreseeability 

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In all cases of negligence it is necessary for the plaintiff to establish that the defendant could reasonably foresee that any negligence on his part would create a risk of injury to the plaintiff or to a class of persons including the plaintiff: Jaensch v Coffey (1984) 155 CLR 549. To prove reasonable forsseeability it’s a general type test: only question is whether the defendant could reasonably foresee that any carelessness on his part might cause damage of some kind to the plaintiff. In established categories of duty of care, this of itself will determine whether there is a duty of care

General Test 

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At this stage the inquiry into reasonable foreseeability is a general one: the only question is whether the defendant could reasonably foresee that any negligent performance on his part might cause damage of some kind to the plaintiff. D need not have been able to forsee the precise sequence of events that led to P’s injruies – enough that could RF the ‘consequence of the same general character’ as that which occurred’. o Chapman v Hearse o For example, it is foreseeable that a rescuer will attempt to provide assistance to a victim of a car accident. Accordingly a rescuer is in a class of persons that is generally foreseeable as being of risk of injury from a driver’s negligence, and it is irrelevant that the defendant could not foresee the identity or status of the particular rescuer, or the precise sequence of events that led to the rescuer’s injuries: Chapman v Hearse (1961) 106 CLR 112. o Ordinarily a plaintiff will usually be forseeable. It is not necessary to show that the plaintiff was foreseeable as a particular individual; it is sufficient if the class of persons to which the plaintiff belongs is foreseeable as being at risk of injury from the defendant’s activities. The plaintiff must show that the defendant could reasonably foresee that any carelessness by the defendant might cause damage of some kind to the plaintiff or to the class of persons to whom the P belongs; Minister for Environment and Planning v San Sebastian. For example, a doctor can foresee that, if he is in some way negligent in treating a patient, the patient is at risk of suffering an injury. And a driver can foresee that, if he in some way drives negligently, other road users are at risk of suffering an injury. The unforeseeable Plaintiff – Palsgraf v Long Island RR Co o Here the court focused upon the innocuous appearance of the package and considered it fanciful that such a package being dropped would injure the plaintiff standing at the other end of the platform.

Simple v Hard Cases – fix these notes

Simple Cases

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A ‘simple’ case of negligence is one where a positive action of the defendant has brought about personal injury or property damage. In simple or ‘easy’ cases of negligence (i.e. where a positive action by D causes injury or damage to property) the plaintiff need only show that it was reasonably foreseeable that some harm would result from D’s act. (plus now the s 48 requirement that the risk was ‘not insignificant’). In fact, in some simple cases the courts bypass the reasonable foreseeability test altogether and recognise a duty of care as arising automatically from the relationship between the parties. In those cases, the relationship between the parties establishes beyond doubt that the defendant could reasonably foresee the plaintiff as being at risk of injury. So, for example, it is clear that a statutory authority that promotes a rock pool as a swimming area owes a duty of care to people who use that rock pool: the authority’s conduct in promoting the pool clearly indicates that it can reasonably foresee that people will swim there: Nagle v Rottnest Island Authority (1993) 177 CLR 423

Cases Chapman v Hearse Facts: On a dark cold night, Chapman drove his car into the rear of Emery causing Chapman to be thrown from the car onto the road. Dr Cherry stopped to help & was hit by Hearse killing Dr Cherry. Dr Cherry's wife & 4 children claimed against Hearse for the equivalent of wrongful death.- Mr Hearse as the driver of the car reasonably foreseeable that his duty of care to road users was a particular one. Hearse claimed contributory negligence against Chapman. Because through Chapman’s original negligence he created the original situation. The court found that Chapman was liable to make contribution. Courts said that it was reasonably necessary that this precise situation would occur. They said duty of care was a very generalized inquiry. Could forsee that Dr Cherry would be a class of persons who was reasonably foreseeable as being a risk of injury, namely a rescuer that. Bourhill v Young: D’s negligence caused a motor accident with a TP. P heard the sound of the accident, and later saw blood on the roadway. She suffered nervous shock and gave birth to a stillborn child. Court held that D did not owe a duty to P, as it was unforeseeable that P (as a pregnant woman) would suffer an injury in the way that she did. The unforeseeable plaintiff Palsgraf v Long Island Railway Co Facts: 2 men were running to catch a train departing from a station. The guard tried to help them but in doing so caused a package containing fireworks but wrapped innocuously in newspaper to slip from under the man's arm. It exploded causing a set of scales to fall on the plaintiff 'some distance away. Onto a woman’s head- package innocuous- reasonable person in D position would consider it fanciful that such a package dropped would injure a person so far away. Note that in that case the court focused upon the innocuous appearance of the package and considered that a reasonable person in the defendant’s position would consider it fanciful that such a package being dropped would injure the plaintiff standing some distance away. They couldn’t forsee that someone standing such distance away would injure the plaintiff. The guards just wouldn’t have forseen such situation, especially because the fireworks were

in no way specially marked dangerous, it was merely wrapped in newspaper. Sydney City Council v Dell’Oro: D hired who they reasonably expected to be a fully qualified and competent electrician. P was subsequently electrocuted when they came into contact with uncovered wires carrying high voltage electricity. Court held that no duty existed as it was ‘not foreseeable that a qualified tradesman would place himself [quite unnecessarily] in fatal proximity to the conductors’.

Unforeseeable plaintiff Bale v Seltsam Pty Ltd (unrep, 23/8/96, QLD CA) [Luntz 2.5.9C]. In that case the plaintiff suffered mesothelioma from asbestos dust inhaled whilst laundering her husband’s work clothes. The majority of the Court came reluctantly to the conclusion that the husband’s employer did not owe a duty of care, could not have reasonably foreseen, on the state of medical evidence that existed at the time (someone merely exposed asbestos from washing clothes), that the plaintiff was at risk of injury from her husband’s exposure to asbestos. CSR Limited v Amaca Pty Limited [2009] NSWCA 338 Scientific and medical evidence was different to that in the 90’s. o

cases where public policy immunity applies eg advocate immunity for court work

Salient features/control factors: judges weigh a range of ‘factors’ or ‘features’ to determine if a duty of care should be recognised Where: a)the case does not fall within an established category, or a) scope of duty of care is in issue, or b) policy considerations arise, then courts use other factors/salient features to determine duty question, Including claims for; o -Economic loss (NOT COVERED) o -Psychiatric injury o public policy o -Injury caused by an omission o -Injury caused by an independent contractor (NOT COVERED) o liability of D for serving alcohol – see CAL In the novel cases, courts evaluate a number of factors to determine whether a duty of care should be imposed.  Control of the activity by D (Crimmins v SIFC)  Vulnerability of P (inability to take steps to protect self) (Crimmins v SIFC)  Knowledge by D of the risk (Crimmins v SIFC)  P’s individual autonomy and personal responsibility (Kirkland-Veenstra v Stuart; CAL No 14 v Scott)  The need to preserve the coherency of the law (Sullivan v Moody; CAL No 14 v Scott)  Indeterminacy of liability (Sullivqn v Moody; Harriton v Stephens)

 Whether imposition of liability would lead to defensive practices (Sullivan v Moody; Tame v New South Wales)

Special Relationship Demise of ‘proximity’ and rise of a multi-factorial approach  In these cases, ‘proximity’ factors must also be proven in addition to those of reasonable foreseeability of a ‘not insignificant risk’.  ‘Proximity’ is not a legal concept in its own right, and merely refers to additional factors that must be shown in these harder cases of negligence; Sullivan v Moody.  Courts not adopt an incremental, multi-factorial approach in determining whether a duty of care should be imposed in these special duty situations  Three types of proximity discussed in Jaensch v Coffey o Physical proximity o Cirumstantial proximity o Casual proximity

The scope of the duty of care and issues of personal responsibility: - Questions of personal autonomy and responsibility will be relevant factors determining whether a duty of care exists - No general duty at common law owed to customers to monitor or limit service of alcohol or to ensure their safety once they leave the premises o Cf a duty to ensure physical premises safe  Cole v South Tweed Rugby Football Club  C.A.L No 14 Pty Ltd v Motor Accidents insurance Board [2009] HCA 47. Defendant was a publican and the plaintiff was drinking in his pub.  Scott dropped by at the defendant’s pub for about 3 hours. He decided that he would lock his bike in the storage area and gave the publican the keys. Publican tried to convince him to not drive motorbike. Publican gave him keys, and he was killed on the way home. Defendant brought a claim against the publican. Main question was whether or not, assuming there was a breach, there was a duty to detain him on the premises. The court said no. publicans do not owe a duty of care to others once they leave their premises.  Balancing pleasures of drinking against the risks a matter of personal responsibility of the drinker. Matter of personal autonomy. o Cf a vulnerable person under the control of the defendant  Legal coherence with other common law torts and legislative responsibilities  Difficulty in giving practical content to duty o Same principles should apply a fortiori (more compelling) to private hosts. Policy considerations/Immunity – ‘special duty’ situations where the courts deny a duty of care for policy reasons  No duty of care where inconsistent with public policy considerations  The courts have held that particular relationships should not attract a duty of care.

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In these categories of case, the courts have held, for policy reasons, that a duty of care should not be recognised.

Legal Advocates  Important immunity is that given to legal advocates. Advocates are immune from liability for negligence in respect of the conduct and management of the case in court as well as preparation for the court case: Gianarelli v Wraith (1988) 165 CLR 543 (failure by barrister to advise of a good defence and to object to inadmissible evidence).  In D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 (10 March 2005) a majority of the High Court of Australia (Kirby J dissenting) affirmed the correctness of Giannarelli v Wraith and upheld the advocates’ immunity from liability.  The primary basis for the decision was the need for finality of litigation and the important public interest in ensuring that concluded judicial matters can not be relitigated, thus confidence in the administration of justice.  The result of this decision is that an advocate...