Module 8 case summaries ( subject outline)-1 PDF

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Introduction to Law 70110 Case summaries ( cases listed in subject outline for Module 8) 1.

(Duty of care/ manufacturer) Donoghue v Stevenson [1932] A friend bought a bottle of ginger beer for Mrs Donoghue. The bottle contained a dead snail. Mrs Donoghue sued the manufacturer of the ginger beer for her illness. Even though she had no contract with the manufacturer she had an action in the tort of negligence. The case established the ‘neighbour principle’ and duty of care.

2. ( Negligence/ Contributory negligence/ standard of care/learner driver) Imbree v McNeilly [2008] The plaintiff allowed his son’s friend Jesse McNeilly ( the defendant) aged 16 to drive his four wheel drive on a gravel road while on a driving holiday in the Northern Territory. The plaintiff knew the defendant had little driving experience , and did not have a driver’s licence or a learner’s permit. The defendant lost control of the vehicle and it overturned. The plaintiff became a tetraplegic. The defendant was liable for the plaintiff’s injuries. The standard of care was that of a ‘reasonable driver’. That standard was not to be further qualified, whether by reference to the holding of a licence or to the level of experience of the driver. The defendant’s liability was reduced by 30% due to contributory negligence as the supervising passenger.

3. (Duty of care/ council) Swain v Waverley Municipal Council [2005] Swimmer injured when he dived into a sand bank between the flags. Held that Waverley Council owed a duty of care to users of Bondi Beach and the lifesavers breached that duty by erecting flags in a place where there was a hazard to swimmers. 1

4. (Breach of duty/ Civil Liability Act ) Waverley Council v Ferreira [2005] Young boy died when fell through an unprotected skylight in a community centre in a park under the control and management of council. Court found that the council had breached its duty because the risk was not insignificant and there was a reasonable possibility of harm occurring – and that a reasonable council would have taken precautions to prevent the accident from happening (s5B of Civil Liability Act 2002 (NSW))

5. (Negligence/ Contributory Negligence/Trespasser) Hackshaw v Shaw Plaintiff was hidden in a car being used by her accomplice to steal petrol from the Defendant’s petrol pump. The defendant fired two warning shots at the car and the plaintiff was injured. The court held the defendant owed the plaintiff a duty of care. As it was at night and visibility was poor it was reasonably foreseeable that a person would be in the car. The damages were reduced by 40% because of the plaintiff’s contributory negligence.

6. (Negligence/ Occupier’s Liability) Australian Safeway Stores Pty Ltd v Zaluzna ( 1987) The plaintiff slipped and was injured on the supermarket floor which was wet on a rainy day. The High Court held the supermarket owed a duty of care to the plaintiff to keep the floor dry or as dry as practical. The decision removed the restrictive rules of occupier and visitor, which varied according to the class of visitor ( eg invitee, licensee, trespasser) and replaced them with the general duty of care of the law of negligence.

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7. (Negligence’ Occupier’s Liability) Neindorf v Junkovic (2005) The plaintiff slipped and was injured on the defendant’s driveway during a garage sale. The High Court held the defendant owed the plaintiff a duty of care but that there was no breach of duty. The risk was obvious and mundane and accordingly, the defendant’s duty of care was to take reasonable care only.

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( Negligence / Occupier’s Liabilit) Strong v Woolworths ( 2012) Woolworths under its lease agreement was responsible for cleaning the sidewalk to the supermarket. The plaintiff, an amputee, slipped and was injured because of a greasy chip which had not been removed. The High Court held the failure to maintain an adequate cleaning system was the cause of the plaintiff’s injury.

9. (Breach of duty/ Remoteness) Yates v Jones (1990) A young woman, aged 17, injured in a car accident, was offered heroin as a pain killer by one of her hospital visitors and on his third visit she accepted the heroin ‘ because of the pain’. She became addicted to heroin, and the need for $900 per day for heroin eventually devoured all her money and her mother’s. The court did not grant her damages for her heroin addiction because it could not be proved that the negligent driver caused her addiction.

10. (Recreational activity/ obvious risk/ Civil Liability Act)

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Council of the City of the Greater Taree v Wells [2010] Cyclist injured his neck when he collided with a sling chain erected by council. Court held the chain was not an obvious risk . The chain was low lying and blended into the background. A cyclist would not see the chain until almost upon it. Also there was no contributory negligence by the cyclist as he was riding at a reasonable speed.

1. (Negligent Misstatement) Hedley Bryne & Co Ltd v Heller Partner [1964]

Hedley Byrne, an advertising company, lent money to Easipower on the basis of a favourable credit report from a broker, Heller & Partners, that was given ‘without responsibility’ Hedley sued Heller for negligence for the loss Hedley suffered when Easipower did not repay the loan. The court held that a person with special skill of knowledge owes a duty of care when giving advice if it is reasonably forseeable that the advice will be relied on. However, because of the disclaimer Heller was able to avoid liability.

11. (Negligent misstatement) Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) (1981) Parramatta Council was asked by a developer whether land the developer intended to acquire was affected by a road widening proposal. The Council advised him there was no proposal for road widening. After the developer bought the land he found out that the property was subject to road widening. A special relationship developed between the Council and the developer where the Council should have realised that the developer would rely on its advice and would have suffered damage if the advice was wrong. The developer was successful in suing the Council for negligent misstatement.

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2. (Negligent Misstatement / Auditor’s Liability) Esanda Finance Corporation v Peat Marwick Hungerfords (1995-1997) Esanda made a loan to Excel Finance Corp Ltd based on a favourable report by Peat Marwick Hungerfords ( PMH) Excel soon went into liquidation because of problems which had been present when PMH made the report. Esanda argued PMH owed it a duty of care because it was reasonably forseeable that credit providers like Esanda might rely on audited accounts. The court held that PMH did not owe a duty of care to third parties like Esanda. It was only a possibility, not a reasonable forseeability, that a client’s report might be shown to a credit provider and relied on as the basis for a financial transaction.

12. (Negligence/ Vicarious Liability) Deatons Pty Ltd v Flew (1949) A barmaid threw a glass into a customer’s face. The hotel was held not to be vicariously liable for the customer’s injuries as the barmaid’s conduct ( an intentional tort) was outside the scope of her employment. The court held that her conduct was in her own personal interest and not in furthering her employer’s (the hotel’s) interests)

(Negligence/ Vicarious Liability) Lister v Romford Ice and Cold Storage Co Ltd [1957]

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A father and son were employed as wasted disposal truck drivers. When the father was injured by the son’s negligent driving of a truck, he successfully brought an action against the employer for being vicariously liable for the son’s negligence. The son was in breach of his contract of employment and the employer’s insurer succeed in an action against the son for the employer’s damages. Note that under current industrial legislation employees are indemnified by their employers against liability for negligence in the scope of their employment.

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