Negligence - notes PDF

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NEGLIGENCE WHAT IS IT? o An unintentional tort / civil wrongdoing. o Aims to compensate a victim by compelling the wrongdoer to pay for any loss or damage caused.

DEFINITION o Carelessness of conduct in committing other torts. Failure to take proper care of something. o The distinguishing feature of a negligence action is that it refers to conduct which objectively falls short of that required by society. In Tame v New South Wales (2002).  Negligence – Duty of care - Psychiatric injury - Motor accident - Clerical error by police constable in recording driver's blood alcohol content - Psychotic depressive illness caused by driver learning of mistake - Whether duty of care owed by police constable to driver - Whether psychiatric injury reasonably foreseeable - Whether sole determinant of duty Other control mechanisms for imposition of duty - Normal fortitude - Sudden shock - Direct perception - Immediate aftermath.  “In the context of the law of negligence, carelessness involves a failure to conform to a legal obligation. It does not necessarily involve a mistake. It involves a failure to protect the interests of someone with whose interests a defendant ought to be concerned.”  The tort is, therefore, not concerned with what the defendant knew, did or not do, but what the ‘reasonable person’ in the defendant’s position would have known or done.

ELEMENTS o Defendant owed a duty of care to the plaintiff. o The defendant breached that duty of care. o Plaintiff has suffered damage due to the defendant’s breach of duty of care.

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NEGLIGENCE DUTY OF CARE WHAT IS IT? o It is a legal obligation which is imposed on an individual requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence. o A duty of care does not arise in all circumstances. It can only arise where it is reasonable to expect that a particular person or class of persons might be injured or harmed if you act or behave with a lack of care. This is called foreseeability. o A duty of care exists when there is a sort of a 'relationship' or a proximity between the defendant and the plaintiff. To establish a duty of care, the test is one of reasonable foreseeability. 1. Donoghue v Stevenson [1932] - So held, by Lord Atkin, Lord Thankerton and Lord Macmillan; Lord Buckmaster and Lord Tomlin dissenting;  “By Scots and English law alike the manufacturer of an article of food, medicine or the like, sold by him to a distributor in circumstances which prevent the distributor or the ultimate purchaser or consumer from discovering by inspection any defect, is under a legal duty to the ultimate purchaser or consumer to take reasonable care that the article is free from defect likely to cause injury to health.” TWO CATEGORIES CALSSIFICATIONS:  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.  Novel duties of care – the facts do not fit with any of the established duties of care, but as Lord Macmillan stated in Donoghue v Stevenson, “the categories of negligence are never closed”.

ESTABLISHED DUTIES OF CARE As the law of negligence developed, many relationships were recognized as giving rise to a duty of care. Duties are as so:    

Occupiers of premises and entrants; Pg. 154 Employers and employees’; Pg. 162 Road users and other road users; Pg. 170 Persons and authorities of others; Pg. 172 2

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Professionals and clients; Pg. 178 Manufactures of goods and consumers. Pg. 186

NOVEL DUTIES OF CARE o It is when a plaintiff claims other forms of damage in negligence that the courts must identify whether a duty is owed outside the well-established duties of care. The precise identification of the loss may be significant because the harm for which compensation is being sought must be in relation to the violation of a recognized legal right, otherwise no duty of care will be recognized by the courts – Sullivan v Moody. o Grant v Australian Knitting Mills [1936] AC 85  On appeal to the Privy Council (UK) from the High Court of Australia  Privy Council expanded the Donoghue v Stevenson principles to apply to a broader range of products than articles of food or medicine.  Lord Wright recognised that the decision in Donoghue ‘treats negligence, where there is a duty to take care as a specific tort in itself…. (At 103) o As Ipp commented in Harriton v Stephens (2006)  “It is impermissible in law to sperate “harm” from the concept of “duty of care”. The proposition that actionable negligence is separate from legally recoverable damage is contrary to the established principle that damage is the gist of the cause of action in negligence.” o It also discusses the novel duty of care in respect of:  Pure psychiatric injury; Pg. 206  Pure economic loss: Pg. 219  Relational loss (loss arising from damage to third party property)  Negligent provision of services;  Defective structures; and  Public authorities. Pg. 234

WHEN IT IS OWED? o A defendant will owe a duty of care to a plaintiff where it is reasonably foreseeable that his act or omission act might harm the plaintiff. o Chapman v Hearse (1961) 106 CLR 112

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NEGLIGENCE  On the point of the existence of a duty of care the Court (Dixon CJ, Kitto, Taylor, Menzies, & Windeyer JJ) said:  “…in order to establish the prior existence of a duty of care with respect to a plaintiff subsequently injured as a result of a consequence of a sequence of events following the defendant’s carelessness it is not necessary to show that the precise manner in which his injuries were sustained was reasonably foreseeable; it is sufficient if it appears that injury to a class of persons of which he was one might reasonably have been foreseen as a consequence.” o There are also some common categories of relationships in which a duty of care is automatically owed:  A commercial relationship between the parties (such as a contractual relationship or an undertaking).[2]  A special relationship between the parties (such as that between parent and child).  An undertaking by the defendant to do something for the plaintiff. 2. Heaven v Pender (1883) 11 QBD 503: Brett MR  “ whenever one person is by circumstances placed in such a position with regard to another, that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger or injury to the person or property of the other (person) a duty arises to use ordinary care and skill to avoid such danger” (at 509)

3. Derry v Peek (1889) 14 App Cas 337 Lord Herschell at 336:  “I think there is much to be said for the view that this moral duty ought to some extent to be converted into a legal obligation, and that the want of such reasonable care to see that statements made under such circumstances are true should be made an actionable wrong. But this is not the matter for discussion on the present occasion… [matter arose in an action for deceit] legislature must intervene…”

SCOPE OF THE DUTY o The accepted scope of the duty is that an occupier must take reasonable care to avoid foreseeable risks of injury to an entrant; Australian Safeway Stores Pty Ltd v Zaluzna [1987] - Plaintiff [Zaluzna, respondent] went into the Defendant's store [Australia Safeway, appellant]. It was raining outside so the foyer was wet and 4

NEGLIGENCE the defender slipped and injured himself. The Plaintiff sued for negligence  Legal issues 

Duty - occupiers' liability

 Judgment 

Defendant alleged that Plaintiff comes within 'invitee' category and damage wasn't unusual, therefore no duty.

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Courts rejected the traditional approach to occupiers' liability, and ecided that from now on the general duty of care formula under Donoghue v Stevenson should be applied to all cases.

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Here we have a commercial relationship as well as reasonable foreseeability, therefore there is a duty of care.

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Court argued that when you expect people to come into your shop and pay you money, the least you can do is provide a safe environment.

TRADTIONAL ELEMENT 4. Donoghue v Stevenson [1932] All ER Rep 1 What is the key issue? Whether the defendant owes the plaintiff a legal duty and if so what was that duty? o Lord Buckmaster (minority dissenting): 

“In a case like the present, where the goods of the defenders are widely distributed throughout Scotland, it would seem little short of outrageous to make them responsible to members of the public for the condition of the contents of every bottle which issues from their works. (at 479)

o The Ratio:  “a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care” o The dicta of Lord Atkin 5

NEGLIGENCE  whenever one person is by circumstances placed in such a position with regard to another, that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger or injury to the person or property of the other (person) a duty arises to use ordinary care and skill to avoid such danger.  You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor/another

BREACH OF DUTY WHAT IS IT? o In Sullivan v Moody (2001) judgement goes;  “A defendant 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.” o The concept of breach in the negligence action is concerned with whether the defendant achieved the standard of care as required by the law. The breach element requires that the risk be foreseeable and considers what a reasonable person do in response to that risk; Wyong Shire Council v Shirt [1980]. o A breach of the duty of care occurs when one fails to fulfil his or her duty of care to act reasonably in some aspect. ... Generally, if a party does not act in a reasonable manner to prevent foreseeable injuries to others, the duty of care is breached.

WHEN IT IS BREACHED? o A duty of care is breached when all elements are met:  a person is injured because of the action (or inaction) of another person; and  it was reasonably foreseeable that such action (or inaction) would result in a risk of injury to the injured person; and  the action (or inaction) causing the injury was unreasonable. This means that a reasonable person in the same position would not have acted in that way; and  the risk of injury occurring was not an insignificant risk. 6

NEGLIGENCE o Also, in determination of the breach two tests must be addressed:  What is the relevant standard of care?  Has the standard been breached?

STANDARD OF CARE o An objective test is applied and, in order to achieve this, reference is made to the reasonable person. Lord Radcliffe, in Davis Contractors v Fareham Urban District Council [1956], stated ‘the reasonable man was the anthropomorphic (humanistic) conception of justice’. o The court stress that reasonable care must be measured according to the circumstances of each case, including the relationship between the plaintiff and defendant; Smith v Jenkins [1970]. o Examples go as;  Children Pg. 246  Physical or mental impairment Pg. 247  Skill and knowledge Pg. 248  Lack of knowledge or skill Pg. 249  Inexperience Pg. 251  Intoxication Pg. 252  Emergency Pg. 253

BREACH OF THAT STANDARD o Once the standard of care is owed by the defendant in the circumstances has been set, it is then a question of fact whether the defendant has achieved that standard or is in breach. o Wrongs Act 1958 (Vic) S.48(1) 1. A person not negligent in failing to take precautions against risk, unless:  risk was foreseeable  risk was not insignificant  a reasonable person would have taken those precautions 2. In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)—  the probability that the harm would occur if care were not taken;  the likely seriousness of the harm; 7

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the burden of taking precautions to avoid the risk of harm; the social utility of the activity that creates the risk of harm.

CAUSATION BUT FOR TEST o The but-for test is a test commonly used in both tort law and criminal law to determine actual causation. The test asks, "but for the existence of X, would Y have occurred?" If the answer is yes, then factor X is an actual cause of result Y. o March v E & M H Stramare P/L (1991) 171 CLR 506 o Facts  Defendant – wholesale fruit merchant  Plaintiff – driver of vehicle  Defendant left truck in middle of road (hazard lights operating) outside market whilst loading with forklift, some lighting – the usual practice.  Plaintiff drove under influence & at excessive speed, collided with Defendant’s truck  Defendant claimed that but for Plaintiff’s negligence driving, the accident would not have occurred. o Held: Deanne J:  “. whether the identified negligent act or omission of the defendant was so connected with the plaintiff’s loss or injury that, as a matter of ordinary common sense and experience, it should be regarded as a cause of it”  Deft found liable

MULTIPLE CAUSES o Where there exists more than one possible cause of an injury or harm, the claimant does not have to show that the defendant’s actions were the sole cause of the injury suffered. o Instead, it must simply be shown that the defendant’s actions materially contributed to the harm (Bonnington Castings Ltd v Wardlaw [1956] for two concurrent causes; Wilsher v Essex Area 8

NEGLIGENCE Health Authority [1988] AC 1074 for five different possible causes). According to the case law, whilst a 50% contribution is enough to bring a successful case, a 20% contribution is not.

INTERVENING ACTS o An intervening act or a novus actus interveniens is an event which breaks the chain of causation and entails that the original tortfeasor is no longer liable for the plaintiff's damages. ... It is a voluntary human act (either the plaintiff's or third party) which is free, deliberate and informed. o Intervening act of the P – Medlin v State Government Insurance Commission (1995) 182 CLR 1 o Intervening act of a third party – Mahony v J Kruschich (Demolitions) P/L & Anor (1985) 186 CLR 522  An act or omission can be regarded as the cause unless there intervenes between the act or omission and the harm an occurrence which is necessary for the production of the harm and is sufficient in law to sever the causal connection

DAMAGES WHAT IS IT? o Damages in tort are generally awarded to restore the plaintiff to the position he or she was in had the tort not occurred. In law, damages are an award, typically of money, to be paid to a person as compensation for loss or injury. Damages are classified as compensatory (or actual) damages and punitive damages. o In Tabet v Gett [2010] Kiefel J states; “there must be a temporal loss or damage accuring from the wrongful act of another, in order to entitle a party to maintain an action on the case”.

ELEMENTS o When referring to the damage element of the negligence action, it is more than simply identifying that the plaintiff suffered some form of loss. The element requires consideration of the following issues: o Whether the loss suffered by the plaintiff is a kind of damage recognised by the law; o Whether the defendant’s breach caused the plaintiff’s loss (factual causation); and o Whether is is appropriate to hold the defendant responsible for the plaintiff’s loss (scope of liability).

REMOTENESS OF DAMAGE

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NEGLIGENCE o A defendant will not be liable in negligence if the damage suffered by the plaintiff is too remote in law, that is, if it was not the reasonably foreseeable consequence of the defendant’s breach. o In Wallace v Kam [2013], the High Court stated in relation to the scope of liability under the civil liability legislation, that liability for harm does not extend beyond that which was foreseeable at the time of the breach as the scope of liability in negligence normally does not extend beyond liability for the occurrence of such harm the risk of which it was the duty of the negligent party to exercise reasonable care and skill to avoid’.

o The reasonably foreseeability test in the context of the damage element of a negligence action provides that the damage is compensable if there was a real risk that the kind of damage suffered by the plaintiff could result from defendant’s negligence.

EGG SHELL SKULL o Generally, the Defendant must take the Plaintiff as s/he finds her/him, including the Plaintiff’s physical and psychological characteristics/frailties/strengths, Kavanagh v Aktar (1998) 45 NSWLR 588

TYPES OF DAMAGES [Pg.384] o Compensatory Damages  Compensatory damages are money awarded to a plaintiff to compensate for damages, injury, or another incurred loss. Compensatory damages are awarded in civil court cases where loss has occurred as a result of the negligence or unlawful conduct of another party. o General  General damages are generally awarded only in claims brought by individuals, when they have suffered personal harm. Examples would be personal injury (following the tort of negligence by the defendant), or the tort of defamation. o Punitive  Punitive damages are often awarded if compensatory damages are deemed an inadequate remedy. ... Because they are usually paid in excess of the plaintiff's provable injuries, punitive damages are awarded only in special cases, usually under tort law, if the defendant's conduct was egregiously insidious.

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DEFENCES WHAT IS IT? o If a plaintiff successfully establishes the elements of negligence, the onus is then upon the defendant to prove any defences. There are three main defences to an action of negligence:  Contributory negligence;  Volenti non fit injuria; and  Joint illegal enterprise.

CONTRIBUTORY NEGLIGENCE o In Joslyn v Berryman [2003], McHugh J stated;  “A plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself 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 plaintiff was exposed.” o A defendant who alleges contributory negligence must prove:  The plaintiff failed to take reasonable care; and  The failure contributed to the foreseeable injury or loss suffered by the plaintiff. o That Plaintiff failed to take reasonable care for own safety. o Until 1950s, it was a complete defence. o Wrongs Act 1958 s 26(1) allows for apportionment of liability and s 63 now allows for 100% apportionment to Plaintiff. o Applies to all torts except some intentional torts such as battery. o Defendant must prove Plaintiff failed to exercise reasonable care for own protection.

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NEGLIGENCE VOLENTI NON FIT INJURIA (NO INJURY IS DONE TO ONE WHO VOLUNTARILY CONSENTS) o As with other tortious actions, consent by a plaintiff to the negligence relives the defendant of liability. Therefore, if a plaintiff, with full knowledge, voluntarily accepts the risk of injury, the defendant may raise the de...