Negligence Exam Notes PDF

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DUTY OF CARE Duty to take reasonable care at time of act of negligence Foreseeability necessary element of each stage of negligence: - Duty  foreseeability of ptf - Breach  foreseeability of risk of injury - Causation  foreseeability of damage suffered by ptf Established categories: - Doctor and patient: Sidaways v Governors of Bethlem Royal Hospital; Rogers v Whitaker - Solicitor and client: Hawkins v Clayton - Driver and passenger: Imbree v McNeilly - School authority and pupil: Geyer v Downs - Employer and employee: Qualcast v Haynes - Occupiers and entrants: Zalunza v Safeway Stores General test: - Donoghue v Stevenson: duty of care owed if injury to ptf (or persons within class) was a reasonably foreseeable result of dft’s act/omission - Where duty to act to protect ptf interferes/conflicts with ptf’s autonomy, no duty: Stuart v KirklandVeenstra History of attempted tests of duty: - Anns v London Borough of Merton 2 stage test: o Whether, between ptf and dft, there is sufficient relationship of proximity or neighbourhood such that in reasonable contemplation of the former, carelessness on their part may be likely to cause damage to the latter, thus a duty arises. o If yes, must considered whether any considerations ought to negative, reduce or limit scope of duty, class of persons to whom duty owed, or damages. - Sutherland Shire Council v Hayman: o Incremental approach – law should develop novel categories of negligence incremental and analogous w/ est categories rather than by massive extension of prima facie duty - Caparo: o Reasonably foreseeable risk of injury of that type of loss of harm to that category of persons o Sufficient proximity of relationship between ptf and dft o Is it ‘fair, just and reasonable’ to impose a duty in particular circumstances - Sullivan v Moody: o Adopted incremental approach o Multi-Factorial Approach: 1. Apply reasonable foreseeability test which asks: Was it reasonably foreseeable that any kind of carelessness by dft might cause damage of some kind to the class of person to which the ptf belonged? 2. Approach the case in an incremental fashion, identifying similar categories of duty of care cases – what are the issues? 3. Identify salient factors applicable to that type of case. Apply to case and balance whether a duty of care should arise in the circumstances.  Salient features: - Kind of harm suffered by ptf - Dft’s control over the situation giving rise to harm (ability to control source of harm, could they defend themselves? Did they rely on dft?) (Crimmins v Stevedoring; Graham Barclay Oysters v Ryan; ACT v Crowley) - Coherency of the law - Nature of the rship between ptf and dft compared to other duty rships - Assumption of responsibility/reliance - Proximity in time/space/rship - Public policy considerations - Inconsistent obligations (duties to wrong-doers?) - Indeterminacy issues

- Ethical and moral considerations Foreseeability - Chapman v Hearse: ptf must est they were one of a class of people who would foreseeably be at risk of injury or same general character as that suffered by ptf if dft failed to take reasonable care - Not necessary to foresee precise nature of events/injury - Le Lievre v Gould: can be as negligent as you want towards the whole world if no duty is owed Scope of Duty - Cole v South Tweed Heads: duty to occupants doesn’t extend to harm suffered outside of venue, nor where actions of dft conflict with ptf’s autonomy - Modbury v Anzil: duty doesn’t extend to third party criminal conduct - Policy considerations: Sullivan v Moody o Police duties: Hill v Chief Constable of West Yorkshire – Yorkshire Ripper  Discretionary nature of work  Defensive practice  Direct resources away from policing into defending court actions o Advocates immunity: D’Orta-Ekenaike v Victoria Legal Aid: immunity for advocates underpinned by need for finality of litigation, and for public confidence in administration of justice Attwells v Jackson Lalic Lawyers: ‘work intimately connected to court work’  immunity doesn’t extend to advice which does not move case in court toward a judicial determination. Omissions - Cts reluctant to impose duty to take positive steps to protect person from harm - Nonfeasance: failure to act/no positive conduct  unless some special relationship determined, no imposition of liability (Sutherland SC v Heyman) - Stuart v Kirkland-Veenstra: police didn’t owe duty to man planning to commit suicide – interference with personal autonomy - Special relationships where duty imposed: o Teacher-pupil (Geyer v Downs) o Employer-employee o Prison guard-prisoner o Doctor-patient o Parent-child (where parent lead child to danger: Robertson v Swincer) - Duty of dft to control 3rd party to protect dft: o Parent-child (Smith v Leurs: parent has ability to control child  duty dependent on age, level of perception/ability to comprehend dangers) o Prisoner-authorities (State of NSW v Godfrey: authority not liable for conduct of escaped prisoner where harm occurs beyond time and place of initial escape – authority must have ability to control) - Occupiers liability o Occupier of land owes duty to lawful entrants o Safeway v Zalunza; Modbury v Anzil: occupier’s duty doesn’t extend to random attacks from 3rd party criminal conduct – dft must have ability to control attack o Cole v South Tweed Heads: duty to protect mustn’t interfere with personal autonomy o C.A.L v Motor Insurance Board: liquor license doesn’t extend to ensuring safety of patrons once they’ve left premises – only duty for reasonable consumption of alcohol. Incoherency w/ law if keys to bike not given back (detinue). o Landlord  duty to tenants? Jones v Bartlett: scope of duty confined to rectify patent defects in premises (defects they know about, are told of, ought to know about  foreseeable risks). Scope doesn’t extend to latent defects. Pure Economic Loss - Negligent misstatement:

o Hedley-Byrne v Heller – factors to be taken into account in determining duty for statements causing loss: 1. Assumption of responsibility by dft on which ptf relies 2. Reasonable reliance more readily inferred where dft has special skill in area, request by ptf for info or advice, and where dft has financial interest in advice o Mutual Life v Evatt: in determining reasonable reliance, number of factors relevant:  Speaker realising/ought to realise that recipient intends to act on advice in matter of business/serious consequence  Utterances in social circumstances not generally sufficient  Reliance by recipient on advice reasonable in circumstances  Nature of subject matter, occasion of interchange and identity and position of parties o Scope of duty where ptf isn’t immediate recipient of info  San Sebastian: duty owed to those who dft intended to induce into reliance of info – dft needs to know and intend to induce  Escanda Finance v Peat Marwick Hungerfords: whether dft knew/had constructive knowledge of particular purpose which ptf intended to use info  Interchase Crop v CAN: knowledge that ptf would rely on info Pure Psychiatric Injury - Must be identifiable mental injury (diagnosed medical condition): Hinz v Berry - Mt Isa Mines v Pusey: mere grief and sorrow not enough, severe emotional distress may lead to psych illness - Tame and Annetts: test – if reasonably foreseeable that ptf could suffer psych harm from dft’s act/omission, prima facie duty. (Factors relevant include sudden shock, direct perception, normal fortitude, proximity of time/perception  aftermath: Jaensch v Coffey) Relational Loss - Caltex Oil v The Dredge: reasonable foreseeability of harm  ptf must be identifiable, ascertainable ptf that may suffer harm as result of negligence - Perre v Appand: ascertainable class rather than identifiable ptf STANDARD OF CARE Standard of conduct of reasonable hypothetical person Reasonableness measured w/out reference to dft’s personal and subjective capabilities - Infants/children: o standard expected of child of same age and experience (McHale v Watson; Griffith v Wood) o child engaged in adult activities must conform to standard of adult (Tucker v Tucker; Zanner v Zanner) - Inexperienced dft: o Imbree v McNeilly: standard expected is that of reasonable driver regardless of whether driver is experienced or not - Insanity & Intoxication: o Impossible to create class for mental illness bc all different – no objective standard o Intoxication – s 46 - Medical Professionals: o Standard dependent on knowledge dft has/ought to have had o Bolam test: evidence of standard of conduct within medical profession is conclusive evidence of standard expected o Rogers v Whittaker: Bolam doesn’t apply in all cases – applies to diagnosis and treatment, but doesn’t apply to advice about risks of procedure o Test to be applied is Material Risk to Patient test:  Dr has duty to warn patient of material risks inherent in proposed treatment; risk is material if reasonable person would be likely to attach significance to it, or if medical practitioner is/should be reasonably aware that patient would likely attach significance to it  CLA s 21

o Doctor’s (s21) & professional’s (s22) & statutory bodies’s (s35): A defendant’s conduct will be measured against a hypothetical standard that would be considered reasonable by community standards (McPherson v Whitfield) BREACH OF DUTY s 9 CLA: foreseeability, not insignificant, precautions - Foreseeability: o Dft not expected to exercise care unless they ought to have known risk was foreseeable o Doubleday v Kelly - Not insignificant risk of harm: o Not insignificant: less than significant, more than insignificant o Not far-fetched or fanciful (Wyong v Shirt) Negligence Calculus (s 9(2)): - In determining whether reasonable person would’ve taken precautions against risk of harm, consider: o Probability that harm would occur if care not taken;  Bolton v Stone: if probability slight, fewer precautions needed o Likely seriousness of harm;  The greater the harm possible, the greater the precautions required  Greater precautions required where ptf particularly vulnerable: Paris v Stepney o Burden of taking precautions to avoid risk of harm;  Takes into account expense, difficulty and inconvenience in taking precautions  Romeo v Conservation Commission; Woolies v Grimshaw o Social utility of activity  Watt v Hertfordshire County Council: in measuring due care you must balance the risk against the measures necessary to eliminate the risk; you must balance the risk against the end to be achieved  Rhodes v Lake Macquarie: native trees have social utility Obviousness of risk: - Vairy v Wyong: obviousness should be firmly placed within breach assessment, not duty o Every form of physical recreation carries some risk of physical injury o Reference to risk not used as determinative concept of breach - Mulligan v Coffs Habour: ‘it is only reasonable to be expected that people will conduct themselves according to dictates of common sense, which must include the observation of, and an appropriately careful response to what is obvious’ - Woods v Multi-Sport Holdings: no requirement of warning where risk obvious - s 13 and 15 CLA Inherent Risks: - s 16 CAUSATION Determination as to whether, as a matter of scientific or philosophical fact, the dft’s breach of duty caused the ptf’s harm  ptf to prove on balance of probabilities (51%) Damage not recognised: - Loss associated to illegal or fraudulent activities are not recognized Meadows v Ferguson - Wrongful life is not recognized: Harriton v Stephens - Impossible to quantify damage: Roberts v Roberts – (being exluded from a social club) - Emotional stress not amounting to psychiatric injury: Leonard v Pollock - Loss of chance in medical situations due to earlier failure to treat / diagnose: Tabet v Gett May still be available if causation can be proven: Gummow ACJ s 11 CLA: - The breach of duty was necessary condition of occurrence of harm: factual causation - It is appropriate for the scope of liability of person in breach to extend to harm so caused: scope of liability o Necessary condition = but for test (no common sense test)

Factual Causation - Where number of causes leading to harm, ptf must prove dft’s conduct caused/materially contributed to harm (Bonnington v Wardlaw: asbestos – innocent dust and guilty dust; Amaca v Ellis) - Barnett v Chelsea and Kensington Hospital Management; March v E & MH Stramare; Adeels - Ask how likely risk of injury was, even if dft hadn’t been negligent (don’t ask whether ptf would have been injured) - Strong v Woolies: proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred - Merck Sharp & Dohme v Peterson: factor ‘in the mix’ of possible causes not enough - Fairchild: evidence that each employer’s wrongdoing had materially increased risk of contracting disease sufficient - Hindsight bias: Rosenburg v Percival – cts won’t accept statements made by ptf that they wouldn’t have done something had they been warned (s 11(3)), however objective factors may be taken into account: o Need for procedure taking into account medical procedure o Knowledge of treatment options o Ptf’s willingness to undergo general risks of procedure (eg general anesthetic) o Ptf’s professional background o Ptf’s questioning or failure to ask of specific risk o Nature of risk and likelihood of materializing o Ptf’s personality and demeanor - Dft not liable for risk of harm ptf was prepared to accept (Wallace v Kam) Scope of Liability - Normative question: whether the dft ought to be held liable to pay damages for harm (Ruddock v Taylor) - Referred to by reference to values or policy (Travel Compensation Fund v Tambree), normative considerations (novus actus) and considerations associated with remoteness of damage (foreseeability, eggshell) Intervening Acts - Ct must determine whether each subsequent event is necessary condition in series of factual causes between dft’s negligence and ptf’s injuries - The Oropesa: subsequent act must be ultroneous, unwarrantable, unreasonable, extraneous or extrinsic - Caterson v Commissioner of Railways - Haber v Walker: The intervening occurrence should be either: a. A human action that is properly to be regarded as voluntary; or b. A causally independent event the conjunction of which with the wrongful act or omission is by ordinary standards so extremely unlikely as to be termed a coincidence.  Voluntary act  person must have complete understanding of act and consequences (Rickards v Lothian) - Medlin v State Gov Insurance Commission: decision to retire due to effects of injury not entirely voluntary (Hirst v Nominal Dft: must ask whether as between ptf and dft it is reasonable of the ptf to make the choice which was the immediate cause of loss) - Where injury exacerbated by surgery, the exacerbation may be regarded as reasonably foreseeable consequence for which the 1st tortfeasor is liable, provided that ptf acts reasonably in seeking/accepting treatment. Proper to regard exacerbation of ptf’s condition as resulting solely from negligent treatment or advice IF the medical treatment is inexcusably bad (Mahoney v J Kruschich) Remoteness of Damage - Reasonable foreseeability - Wagon Mound: damage not too remote if type of damage foreseeable by reasonable person - Damage must be of same kind, class, character or type as was reasonably foreseeable (need not be precise: Chapman v Hearse)

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Jolley v Sutton London Borough Council: reasonable foreseeability of physical injury resulting from climbing the boat sufficient  need not foresee exact type of injury

Eggshell Skull Rule - Take victim as you find them - Applies in 2 cases: o Where ptf suffers pre-existing hypersensitivity predating accident o Where accident induces abnormal hypersensitivity to further injury - Nadar v Urban Transit Authority of NSW: taking victim as one finds them includes considering family situation (over-protective parents, etc); Kavanagh v Akhter: rule also considers cultural/religious background  pre-existing susceptibility DEFENCES Contributory Negligence s 23 CLA – effect is to reduce damages What constitutes contrib neg? - Mere failure by ptf to take reasonable care for own safety - Ptf’s conduct need not put anyone else at risk - Conduct need only contribute to injuries (not about what caused accident but what caused harm) - Ptf is guilty of contrib neg when they expose themselves to a risk of injury which might reasonably have been foreseen and avoided, and suffers an injury within the class of risk to which the ptf was exposed (Joslyn v Berryman) - Test: would a reasonable person have taken greater precautions for their own safety? o Reasonable person: Ipp Panel – contrib neg assessed against same objective standard as applies in est breach by dft (ie s 9 + 11) o Reasonableness judged by weighing degree of inconvenience and risk to which the ptf was subjected by the dfts negligence against the risk that the ptf took to escape it (Caterson v Lake Macquarie Council; Imbree v McNeilly) o Ipp recommendations: ‘individuals should care for themselves as much as they expect others to care for them…people should take responsibility for their own lives and safety’ Apportionment (s 10(1) Law Reform Act): - Comparison of culpability of both parties (degree of departure from standard of care of a reasonable person as well as causal potency of respective failures: Podrebersek v Aus Iron and Steel) - s 24 CLA: ct can find ptf 100% contrib negligent (MacKenzie v Nominal Dft) Capacity - Children compared objectively to an ordinary child of same age (McHale; Kelly v Bega) - Disabilities: not taken into account (Port Hedland v Hoddler) - Agony of the moment/inconvenience: sudden emergency where precautions unable to be taken due to urgency (Caterson)  conduct may be held reasonable - Employment/repetition/inattention: requires distinction between mere inadvertence/inattention and failure to take reasonable care (Czatyrko v Edith Cowan Uni: work was repetitive and presented a fertile field for inadvertence; actions neither deliberate, intentional, nor in disregard of direction/order from employer) - Seatbelt: injury is caused partly by dft’s driving and partly by ptf’s failure to wear it ( Froom v Butcher) - s 46, 47, 48, 49: presumption of contrib neg if claim involves intoxicated party (Joslyn v Berryman) o relevant to contributory negligence if it is self-induced, contributed causally to the harm suffered and impaired the injured person’s capacity to exercise reasonable care and skill. o must rebut by est intoxication did not contribute to the breach Voluntary Assumption of Risk - Must be est on B.O.P. that ptf freely and voluntarily, with full knowledge of the nature and extent of the risk, impliedly agreed to incur it (Imbree v McNeilly)  onus on dft to prove ptf assumed risk - Scanlon v American Cigarette Co elements: 1. ptf must know facts constituting danger (be aware of exact risk);

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2. ptf must understand and appreciate the danger inherent in the particular situation; and 3. ptf must freely and willingly agree to encounter that particular danger s 14: where dft raises V.A.R, and risk is obvious (s 13), there is rebuttable presumption that ptf was aware of risk (ptf need not be aware of precise nature of occurrence of risk) Employment: employer must show employee knew of risks involved in job and freely consented to employer’s negligence w/ view to excluding liability (Smith v Charles Baker & Sons) Participants/spectators of sporting events impliedly consent to risks involved (Hall v Brooklands Auto Club; Randwick City Council v Muzic) Rescuer: moral duty means rescuer hasn’t freely consented to risk of injury (Haynes v Haywood)

Dangerous Recreational Activity - s 17  19 - Must est: o At time of negligence, the ptf was engaged in a D.R.A; and o the harm suffered came about due to materialisation of an obvious risk - s 18: activity engaged in for enjoyment, relaxation or leisure that involves a significant degree of risk of physical harm to a person o Significant degree of risk of harm: between what is trivial and what is likely to materialise o Can be est one of 3 ways (Fallas v Mourlas): 1. Assume any risk will be significant bc the results of it eventuating are li...