Summary - Starred Cases Torts Semester 2 PDF

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Duty of Care: 1. Donoghue v Stevenson [1932] Facts: Mrs Donoghue drinking a bottle of ginger beer in a cafe in Paisley, Renfrewshire. The beer was bought by Donoghue's friend. The bottle contained decomposed remains of a snail. She suffered shock and severe gastro enteritis and as a result was admitted into the hospital. She sued the ginger beer manufacturer, Mr Stevenson. Issue: Does the manufacturer owe a duty of care to the consumer? Holding: The House of Lords held that the manufacturer owed a duty of care to her, which was breached, because it was reasonably foreseeable that failure to ensure the product's safety would lead to harm of consumers. Even though there was no contractual relationship, Stevenson owed a duty of care to his consumer. Stevenson neglected his duty as such he will be held liable for any consequence resulting in drinking the ginger beer. Lord Akin's neighbourhood principle: "Persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question". A man has a duty of care to conduct himself in such a way as to avoid harm to others, where a reasonable person would have seen that such a harm could occur. 2. Chapman v Hearse (1961) Facts: An accident was caused by Chapman's negligent driving. He was thrown out of the car and remained unconscious on the side of the road. P, Dr Cherry stopped his vehicle and went to Chapman's assistance. Within a few minutes of the time when Dr. Cherry reached Chapman another car came along the road from the south and the driver of this vehicle, Hearse, failed to see either Dr. Cherry or the injured man until it was too late to avoid them. As a the result his vehicle struck Dr. Cherry and caused him injuries as the result of which he died. Dr Cherry's estate sued Hearse for negligently causing Dr Cherry's death. By his statement of defence Hearse denied that he had been negligent and alleged contributory negligence on the part of Dr. Cherry. Then by a third party notice and statement of claim he claimed that, in the event of liability attaching to him, he was entitled to contribution from Chapman to such extent as to the Court should seem just and equitable. Issue: Had Cherry been guilty of contributory negligence? Did Chapman owe a duty of care to Cherry to avoid placing Cherry (as a rescuer) in a position where he might be endangered? Was Chapman’s negligence a cause of the death of Cherry? Holding: Cherry was a rescuer and not guilty of contributory negligence. There was no evidence to prove that Cherry had been negligent while assisting Chapman. A duty of care was imposed on Chapman to not place himself in a situation where a rescuer could be injured while assisting him. The death of Cherry was in part caused by Chapman’s negligence, as Cherry would not have been on the road but for treating Chapman’s injuries.

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The Court said: “Dr. Cherry’s conduct involved any departure from the standard which reasonable care for his own safety demanded. To our minds this question can be answered in only one way. He had, naturally enough, come to Chapman’s assistance; in the course of attending to Chapman his attention must invariably have been diverted from the road and if, by reason of this fact, he failed to see the oncoming car until it was too late to get out of its way it would be quite wrong to hold that he was guilty of contributory negligence.” “What is important to consider is whether a reasonable man might foresee, as the consequence of such a collision, the attendance on the roadway, at some risk to themselves, of persons fulfilling a moral and social duty to render aid to those incapacitated or otherwise injured. ... But one thing is certain and that is that in order to establish the prior existence of a duty of care with respect to a plaintiff subsequently injured as the result of a sequence of events following a defendant’s carelessness it is not necessary for the plaintiff to show that the precise manner in which his injuries were sustained was reasonably foreseeable; it is sufficient for if it appears that injury to a class of persons of which he was one might reasonably have been foreseen as a consequence.” 3. Sullivan v Moody (2001) Facts: Wife's allegation that husband had sexually abused their young daughter. No charges were laid against him as allegations were unsuccessful. Sullivan sued the treating practitioners, social workers and the sexual assault referral centre alleging breach of a duty of care owed to him to exercise reasonable care in conduct of their sexual abuse investigations. Argued that it was foreseeable that harm of the type allegedly suffered might result from want of care on the part of those who investigated the allegations. Issue: Whether those involved in the investigations process where under a duty of care to S? Holding: No such duty existed. The statutory scheme that formed the background to the activities of the defendants was a scheme for the protection of the children. It required the Ds' to treat the interest of the children as paramount. Their professional or statutory responsibilities involved investigating and reporting upon allegations that children had suffered and were under threat of serious harm. It would be inconsistent with the proper and effective discharge of those responsibilities that they should be subjected to a legal duty, breach of which would sound in damages, to take care to protect persons who are suspected of being the sources of that harm.

4. Adeels Palace Pty Ltd v Moubarak (2009) Facts: The case deals with obligations and duties owed by a licensed premises to prevent injury to its patrons, from the conduct of a rogue patron The appellant operated a restaurant business at premises in Punchbowl, NSW. The premises were licensed under the Liquor Act 1982 (NSW). On 1 January 2003, there was a dispute between some women dancing on the dance floor. Words were exchanged. Relatives and friends intervened. Fighting erupted and onlookers joined in. One man involved in the fight was hit in the face, drawing blood. He left the restaurant and returned soon after with a gun. One of the patrons, Mr Bou Najem, ran into the restaurant’s kitchen but slipped over. The gunman entered and despite Mr Bou Najem’s pleas, he was shot in the leg. The gunman then found the man who had struck him in the face (Mr Moubarak). The gunman shot Mr Moubarak in the stomach, and then left the premises.

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Issue: Did the restaurant owe a duty to the plaintiffs and was that duty breached? Holding: At first instance in the New South Wales District Court, both plaintiffs were successful and obtained a judgment for damages. Adeels then appealed to the HC. High Court held as follows:  Adeels Palace owed each plaintiff a duty to take reasonable care to prevent injury to patrons from the violent, quarrelsome or disorderly conduct of other persons (as required by the Liquor Act).  Adeels Palace did not breach this duty. Unless the risk to be foreseen was a risk of a kind that called for, as a matter of reasonable precaution, the presence or physical authority of bouncers or crowd controllers to deal with it safely, failure to provide security of that kind would not be a breach of the relevant duty of care. The court noted that there was no finding at trial or in the Court of Appeal, that a risk of that kind should have been foreseen.  Even if a breach of duty had been established, the alleged negligence of Adeels Palace was not causally connected to the injuries sustained. The absence of security personnel at Adeels Palace on the night the plaintiffs were shot was not a necessary condition of the occurrence of the harm to either plaintiff. 5. Roads and Traffic Authority of New South Wales v Dederer (2007) Facts: Bridge was built in 1959 by the Department of Main Roads, the predecessor of the RTA. On 31 Dec 1998, Dederer aged 14 was rendered partially paraplegic after he dived from the bridge into shallow water and struck his head on the estuary bed. He climbed onto the railing of the bridge and although he initially intended to jump into the water, he changed his mind and dived head first instead. Dederer and his family were familiar with that area, and he had seen many other young people jump or dive from the bridge. He had done so himself on the previous day without any harm. Issue: Did RTA owe a duty to Dederer and was that duty breached? Holdings: A majority of the High Court of Australia (Gummow J, Heydon J and Callinan J; Gleeson CJ and Kirby J dissenting) held that there had been no breach of duty by the appellant. It contended was

that there was no duty of care owed to the plaintiff because he failed to take reasonable care himself. The Court of Appeal dismissed this argument, observing that whilst the extent of a duty of care can be conditioned by a plaintiff’s conduct, its existence is not conditional. Gummow J: The risk of injury consequent upon jumping or diving from the bridge into water of variable depth was reasonably foreseeable. Reasonable foreseeability is to be determined objectively, and the present risk was plainly foreseeable on an objective standard. The magnitude of the risk was self-evidently grave. Mr Dederer’s partial paralysis is among the worst kinds of injuries imaginable. The probability of that injury occurring was, however, low. Despite the frequency of jumping and diving from the bridge, no-one was injured until Mr Dederer’s unfortunate dive. This was not a case in which the defendant had done nothing in response to a foreseeable risk. To the contrary, the RTA had erected signs warning of, and 3

prohibiting, the very conduct engaged in by Mr Dederer. In the circumstances, that was a reasonable response, and the law demands no more and no less. RTA did not breach its duty. Callinan J: Also to be balanced, are the interests of the community in being able to walk across the bridge, to enjoy the view, and to pause and lean in comfort on a flat surface of a top rail as they do so. Only an extremely high unscaleable fence, with perhaps shards of glass embedded in its top, or barbed, or electric, or razor wire, might, on the evidence, have deterred determined and adventurous youths from climbing and jumping. Equally, the substitution of vertical bars for horizontal rails is unlikely to have been an effective deterrent. Other measures such as the provision permanently of a sufficient number of police or other officials would exceed the requirements of a reasonable response. 6. Stuart v Kirkland-Veenstra (2009) Facts: Sometime between mid-morning and 2.30pm on 22 August 1999 Mr Ronald Veenstra, the husband of the P, committed suicide at his home by fixing a hose to the exhaust of his car and starting the engine. Earlier that day, at about 5.40am, two experienced police officers, members of the Victorian police service, had approached Mr Veenstra while he was sitting in his car in a beachside carpark. Although the car engine was cold and not running, there was a hose leading from the exhaust into a rear window of the car. When questioned about the hose, Mr Veenstra said he had been sitting in the car park for two hours and that he had contemplated doing “something stupid”. The police officers offered to contact a doctor. However, Mr Veenstra refused these offers of help and indicated that he wanted to return to his home and speak to his wife about his marital problems. The police officers allowed Mr Veenstra to leave after forming the view that he did not display any sign of mental illness and was rational and responsible. The police officers were aware that, under s 10 of the Mental Health Act 1986 (Vic), they had power to “apprehend a person who appears to be mentally ill” if they had “reasonable grounds for believing that – (a) the person has recently attempted suicide … or (b) the person is likely by act or neglect to attempt suicide …”. Issue: Did the police officers owe a duty to apprehend him and arrange for his medical examination?

Holdings: Per Gummow, Hayne and Heydon JJ: s 10 of the Mental Health Act, did not found the P's action because although s 10 conferred a power, it did not impose a duty to exercise the power. Statutory power to act in a particular way, coupled with the fact that, if action was not taken, it was reasonably foreseeable that harm would ensue, was not sufficient to establish a duty of care to take that action. In the present case, it was the factor of control that was of critical significance. It was not the police officers who controlled the source of the risk of harm to the P's husband; it was the P's husband alone who was the source of that risk. Given the value of personal autonomy to the common law, and the reinforcement of this value by the MHA, this factor was of predominant importance. Accordingly, the characteristics of the relationship between the police officer (as holders of the power given by the MHA s 10) and the P's husband (as the person against whom the power would be exercised) did not answer the criteria for intervention by the tort of negligence. Per Crennan and Kiefel JJ: The question of whether there was a duty at common law in this case required, as a minimum, a power given by statute. In the present case, it was the MHA that was the sole source of the power. Absent the holding of an opinion that the respondent's husband was mentally ill, the appellants did not have the power to apprehend in s 10 available to them. 4

Per French CJ: The duty of care which the majority in the Court Appeal found to exist could not have existed because the critical statutory power conferred by s 10, which was in the end the foundation of the duty of care in the circumstances of the case, did not exist absent the appellants' belief that the respondent's husband was mentally ill.

7. Tame v New South Wales; Annetts v Australia Stations Pty Ltd (2002) Facts: Tame: Mrs Tame sought damages relating to psychiatric depression that developed a following a series of events commencing with a car accident in 1991 and involving the incorrect recording in police files that she had been drunk at the time of the accident. Annett: This case was well covered by the media at the time of the events occurring and involved a young jackeroo who became lost on a Western Australian cattle station. The jackeroo’s parents suffered nervous shock consequent on learning their son was missing and was probably in danger. Their concerns were confirmed by the finding the boy’s dead body some months later. Holding: In Tame the HC found that the P’s alleged shock arising from the police error was not foreseeable in a person of normal fortitude and therefore there was no liability to the police for her emotional state. In Annettes - notwithstanding their son was thousands of miles away and the perception of his death by his parents was not immediate - the court found their reaction should have been foreseen by the D. Accordingly, liability was established consequent on the parents suffering a recognisable psychiatric disorder. Gaudron J: There must be some special feature of the relationship between P and D which means that D should have P in contemplation. In the Annetts case, such a relationship existed, because D was employing their son and they had specifically enquired about safety conditions. There was no special relationship in Tame. A duty to the subject of the investigation would conflict with a police officer's duties, and in this case finding a duty of care would overlap with the law of defamation. Hayne J: No duty on behalf of police officer, because it would conflict with their other duties. Also, it is not reasonably foreseeable that a person of reasonable or ordinary fortitude would suffer distress. A duty was owed, as it was reasonably foreseeable that a person of reasonable or ordinary fortitude would suffer psychiatric harm at the loss of a child. Also, a duty may be said to have been owed in view of the relationship between plaintiffs and defendant. Callinan J: In Tame, the fact that actions may have been available in negligent misstatement or defamation is relevant, as there is a need for coherency in the law, and certain defences and policy considerations would be available in those actions. Foreseeability is not sufficient, but it is necessary, and this case fails on that point. The consideration of reasonableness on the part of the defendant is also important. 'Nervous shock' cases are distinct from physical injury cases, because susceptibility to psychiatric injury varies much more widely among people. The duty can only be to not act in such a way as to foreseeable cause psychiatric injury to a person of ordinary fortitude.

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8. Koehler v Cerebos (Australia) Ltd (2005) Facts: The appellant was employed three days a week as a merchandising representative of the respondent (the employer). She could not perform the duties expected of her to her satisfaction. She repeatedly told management that changes had to be made. She said that the work expected of her had to be changed, or she should have more time in which to do it, or she should have help to do it. No changes were made. Five months after starting this work the appellant fell ill. At first a physical disorder was suspected but further consideration revealed that the appellant was suffering a psychiatric illness. Her work was a cause of that illness. Issue: Did the employer breach the duty of care it owed the appellant to provide her with a safe system of work? Holding: HC held that the psychiatric injury she suffered was not a reasonably foreseeable consequence of the employer’s conduct. Ms Koehler exhibited no signs of distress so as to suggest a risk of injury, and the complaints made by Ms Koehler were directed to whether the work could be done, not to the risks the work posed to her health. This narrow ground was sufficient for the majority to dismiss the appeal. Koehler also demonstrates another feature of the ‘stress at work’ cases. Courts are more willing to make a finding of reasonable foreseeability of psychiatric injury where the injury relates not to the amount of work an employee undertakes but the kind of work they undertake. Undoubtedly, the decision in Koehler puts the over-stressed employee in a difficult position. Making no complaint may lead to a finding that any resultant psychiatric injury was unforeseeable and that the employer was merely requiring the employee to abide by the contract of employment. Conversely, making the employer aware of the problem may be taken as an admission that the employee cannot perform the job and lead to the loss of a much-needed employment. Perhaps the only way of avoiding this result is through legislation. 9. Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of New South Wales (2010) Facts: The two actions arose out of the renowned train derailment near Waterfall Station on 31 January 2003, in which 7 people died. The appellants (Mr Wicks and Mr Sheehan) were members of the NSW Police Force at the time of the accident and were among the first to arrive at the scene. At first instance, both police officers gave graphic accounts to the Court as to the horrific nature of the scene with which they were confronted when they arrived at the scene. This included coming across numerous deceased and dismembered bodies, assisting with the extraction of survivors from the wreckage (some with severe injuries), providing first aid assistance, ensuring that the scene was secure and reassuring survivors who were extremely distressed. Both officers commenced proceedings against the State Rail Authority of NSW (“SRA”), alleging that the negligence of the SRA had caused them to suffer pure mental harm. Issue: Was the SRA was liable for damages in respect of pure mental harm? Holding: 6

At trial found that liability was not established. The NSW COA dismissed the appeal because of the application of s 30(2) of the Civil Liability Act (NSW) 2002. The Court held that the appellants did not witness at the scene victims being killed, injured or put in peril within the meaning of the section. The HC, held that the appeal should be allowed and th...