Torts Negligence Summary PDF

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A. Duty of CareDuty under a base 2 Stage framework similar to Caparo using The Grange [2012] NZSCI. Proximity (Internal Inquiry)a) Reasonable Foreseeability – Screening mechanism – Defendants act must be reasonably foreseeable for harm to result to Plaintiff. Consider seriousness/likelihood. b) Prox...

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A. Duty of Care Duty under a base 2 Stage framework similar to Caparo using The Grange [2012] NZSC I.

Proximity (Internal Inquiry)

a) Reasonable Foreseeability – Screening mechanism – Defendants act must be reasonably foreseeable for harm to result to Plaintiff. Consider seriousness/likelihood. b) Proximity – Balancing of Moral claims of the parties: Plaintiffs to compensation for avoidable harm and Defendants to be protected from undue restrictions of freedom and undue burden of legal responsibility. In Favour: a. Statutory authority pointing towards public interest in competency of profession – crucial b. Defendants control over the situation c. Assumption of responsibility by D – Barrat d. Direct and Close nexus between D’s negligence and P’s loss –South Pacific e. Geographical Vicinity – Bourhill + Dorset - Outside the danger area? f. Analogous cases – Rolls Royce g. Vulnerability of P – Rolls Royce - P dependant/reliant on D’s expertise/skill? h. Immediacy of risk of harm (+Degree/Magnitude) – South Pacific Against: i. Impose a burden on D disproportionate to (South Pacific) i. their carelessness or; ii. to the loss incurred? j. Duty imposed on a public authority – must stem from consideration of its functions and responsibilities. i. Discretion to carry out functions – Hill k. You cannot owe a duty to the world at large – Must be negligent towards that Plaintiff II. a)

Policy (External Inquiry) + (Fair, just and reasonable) Policy Factors of Fair, Just and Reasonable – Beyond parties, at the interests of society generally, to assess the wider effects of its decision and its impact on the law in general. a. In Favour: i. Analogous cases – South Pacific ii. Reliance – South Pacific iii. Statutory context consistent? (public interest re competence)– South Pacific iv. If the duty will deter wrongdoing or encourage reasonable care – South Pacific v. Extent of the harm – Dorset (more likely/serious will tell in favour – personal safety is first concern) vi. Professional competence – Anns b. Against: i. Floodgates, Indeterminate liability – South Pacific ii. Ability for each party to insure against liability iii. Likely behaviour of potential Defendant’s in reaction to the decision iv. Contractual Matrix, plaintiffs ability to protect themselves – Rolls Royce v. Type of Loss/nature of interests being affected– South Pacific - Against economic loss vi. Conflict with other areas of the law? – South Pacific - E.g. Defamation with its defences vii. Adequate remedy already exists elsewhere – South Pacific/Rolls Royce - E.g. In Contract viii. General economic considerations – South Pacific ix. Legitimate public interest in public bodies being free to perform their roles (Chilling effect) – Dorset x. Courts are reluctant to impose a duty on defendants for failing to act. Bourhill v Young

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B. Breach of Duty Blythe

Breach is an Objective standard

-A person would not be negligent if the proportions they undertake were that that a reasonable person would’ve taken.

1. Characteristics/Factors to determine a reasonable man (Subjective) (not determinate) (1) Age (2) Profession (3) Seriousness of the risk = higher the standard (4) Probability/likelihood of harm (5) Have all reasonable or practical proportions been taken? Nettleship v Weston [1971] UK (CA)

Lack of experience/skill

-Test is objective, learner drive expected to come up the standard of a competent driver, anything less is negligent. -Dealt with the defence of non infit injuria, it cannot be raised here as it requires a voluntary assumption of risk, knowledge and voluntarily acceptance is different from just consent.

McHale v Watson (1966)

Age/children

-If the defendant is a child, they would be expected to conform to the same standard as other reasonable children of similar age.

Wilsher [1987] (CA)

Professional Bodies standard

-Even a junior professional would be expected to come up to the standard of more experienced colleagues. -When medical experts give conflicting opinions the defendant would not have been in breach simply because he chose to follow one opinion.

Bolam [1957] (QB)

Experience/skill/ Knowledge

-Those with superior knowledge (e.g. doctors) may be held to the standard of care of a reasonable person with that level of knowledge. -Medical professionals will not be guilty of negligence if they have acted in accordance of common practise and “responsible body of medical men skilled in that art.”

Whitehouse v Jordan [1980] (CA) -Lord Denning stated that an error in clinical judgment does not imply negligence -This suggests you can fall below the standard; an error of judgement is conduct that comes up to the standard suggested but that if the error was mistaken and took all the reasonable steps they would not be negligent.

Bolitho [1997] (HL)

Modification to Bolam

-Bolitho Test: A court is entitled to choose between two bodies of expert opinion. If one opinion does not withstand logical analysis, it would be held to be unreasonable and would be justified to say it should not be followed. -Reject an argument if it is not logically defensible.

Billy Higgs [1950] NZ (CA)

Mental/Physical capacity

-A defendant will not be responsible for disability if it was something out of D’s control -If knowledge of the incapacity, then liable – society would expect them to not undertake in the activity

Mansfield v Weetabix Ltd [1998] (CA)

Mental/Physical capacity

-Principle: You have to be unaware or have no knowledge to escape liability. -Exception: To change standard, you must be UNAWARE and have NO KNOWLEDGE of diminished capacity, if aware, should have taken corrective action.

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2. Applying the standard: What does the reasonable person consider? Roe v Ministry of Health [1954] 2 All ER 131 (CA)

Breach assessed at time

-The question of foreseeability/likelihood for the breach is assessed at the time. If practise is changed over time it does not affect what should have happened at the time. -If you hold yourself out to be a certain position of profession, you will be assessed by that standard.

Bolton v Stone [1951] AC 850 (HL)

Likelihood of Harm

-Whether the risk of damage was so small that a reasonable man would have thought it right to refrain from taking steps to prevent the danger and eliminate the risk then there has been no breach of legal duty. -The likelihood of harm influences the preventative measures to be taken, if improbable then don’t guard for it.

McCarthy v Wellington City

Gravity of the Harm

-The more serious the harm, the higher the standard/precautionary measures that would be expected. Facts: Abandoned quarry, detonators had been left there, children went and played with them and suffered injury. Should they have removed the detonators? It was foreseeable children would have played with them.

Paris [1951] (HL)

Especially vulnerable victim

-If someone is more vulnerable to serious harm then more steps/precautions should be necessary be taken to prevent it, take into account the circumstances of the victim. Facts: safety goggles should have been provided because the seriousness of harm to this one plaintiff was so much greater; the employer should have taken much more steps since he only had one good eye.

Goldman v Hargrave [1967] (PC)

Burden of Prevention

-Regard should be had to the defendant’s physical capacity and financial resources: -less is expected of the unwell than the able bodied -less is expected of the small owner than one with substantial interests

The Wagon Mound No 2 [1967] (PC)

Burden of precautionary measures

-If what could have been done to prevent real danger was so low cost it may require prevention even if small risk otherwise a court would find there to be a breach. -Principle: If a real risk is one which would occur to the mind of a reasonable man in the position of the defendant and which he would not brush aside as far-fetched, and if the criterion is to be what that reasonable man would have done in the circumstances, then surely he would not neglect such a risk to take action to eliminate if it presented no difficulty, involved no disadvantage, and required no expense.

Watt

Social Value of the Activity

-Lord Denning held that the high social utility of the activity meant that the small risk of injury to plaintiff’s would be run. (Firemen rushing to emergency) Note: Activity is unlawful - Strongly in favour of breach Activity is socially useful - Against a breach

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C. Causation The plaintiff must prove, on the balance of probabilities (51%), that the defendant’s breach caused the damage. Must satisfy: Factual causation (but for test). Damage must be foreseeable, no novus actus.

Barnett [1969] QB

But For Test

“But for the D’s negligence, would P have suffered the loss/harm/injury?” YES – Defendant’s negligence not a cause NO – Defendant’s negligence is a cause -Problems with the ‘but for’ test; won’t apply to all situations as it is too simplistic, not fair when two or more causes.

Bonnington [1956] (HL)

Only one type of source

-Draw an inference on whether Defendant’s tortious conduct/breach made a material contribution to the damage suffered on a balance of probabilities

McGhee [1973] 1 WLR 1 (HL)

Single agent rule

-As long as you can prove the defendants breach materially increased the risk then proof of risk = proof of causation. -Court doesn’t distinguish between materially contributing and materially increasing the risk of the plaintiff’s loss.

Wilsher [1988] (HL)

1 defendant, multiple agents

-When there are Multiple causal agents, don’t apply McGhee principle -Defendant cannot be held liable for an injury if their negligence only increased the Number of risks and not the increase of an existing risk as in McGhee. -Plaintiff cannot shift the burden of proof to the defendant, merely by showing that a step had not been taken.

Fairchild [2003] (HL)

Multiple defendants, 1 agent

-Would it be fair for the plaintiff recover in full from either employee when they can’t establish who is responsible -Proof of material increase to risk by both defendants is sufficient for causation using the McGhee principle. Have to weigh two main policy considerations 1. The need to protect the potentially innocent defendants from being held liable for damage he has not caused. 2. In favour of compensating deserving plaintiffs, especially on the facts where those plaintiffs suffered grave harm on the employers negligence, essentially they were both duty breaking employers, court finds that very important.

Loss of chance Involves a situation when a plaintiff wants to recover for a chance of a better outcome -Where there is a delay diagnosis or where there is a mistaken diagnosis leading to delayed treatment. (Medical)

Allied Maples Group [1995] (CA)

Loss of chance-non medical

To Sue for a loss of chance to negotiate and get a better outcome the plaintiff must prove two things; 1. Yes the plaintiff would have sought those steps to renegotiate (Allied Maples) 2. Must prove there was a substantial chance of renegotiating a better deal or outcome? ( Spring)

Atkinson [2002] NZ (CA)

Causation under ACC

-To receive cover under the ACC act, you must prove on the balance of probabilities that Defendants act (negligent care) caused the actual harm, not enough to prove they created a risk. Further point; when ACC is concerned, public policy considerations that are relevant under common law will not be relevant under ACC.”

ACC v Ambros [2008] NZCA

Causation under ACC

-McGhee principle of ‘increase in risk’ rule not applicable to ACC claims in NZ. (Follows Atkinson) -Reference to Greg v Scot, a Loss of chance argument is incompatible with the ACC scheme. -Glazebrook J: Robust inferences may be drawn in favour of the plaintiff in individual cases if sufficient material pointed to proof of causation on the balance of probabilities – statistics, medical evidence, evidential onus -Must be direct causal link between the treatment and the injury, and the fact the treatment didn’t get the desired result doesn’t mean treatment injury.

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D. Remoteness Whether the link between D’s negligent conduct and ensuring harm is sufficiently proximate so as to be reasonable that the defendant should bear the loss?

The Wagon Mound [1961] (PC)

Damages must be foreseeable

-Overruled the directness test of Re Polemis and established a new Test for Remoteness: -Whether the damage is reasonably foreseeable. Then they will be liable for the full extent of the damage even if the extent of the damage itself was not foreseeable. -Focus is on whether the damage was of a TYPE/KIND which was FORESEEABLE.

Hughes [1963] (HL)

Must be of the kind/class foreseen

=>Whole series of events that leads up to the injury do not have to be foreseeable, just the type/kind of injury/loss. Facts: Injury by burning was foreseeable and injury by explosion was by burning. Linked explosion to injury by burning.

Jolley [2000] (HL)

Neither Manner nor extent needs to be foreseen

-It is only the nature of the risk which ought to have been foreseen. -Where injury is of a foreseeable kind, the defendant is liable even if damage is greater in extent that was foreseeable, or caused in a way that could not have been foreseen.

Smith v Leech Brain [1962] QB

Egg Shell Rule

-A defendant would be liable for the whole damage even though the damage might have been aggravated in an existing condition in the plaintiff. -It is not necessary to show that the original type of injury was foreseeable or that an ordinary person would have suffered from it. -The rule applies to both physical and psychological conditions (Page v Smith)

Lagden [2003] (HL)

Impecuniosity/Thin Wallet Rule

-Applied in NZ in Geothermal Produce. -Impecuniosity is an economic characteristic of the plaintiff and must be taken together with how we find the plaintiff. -Reasonable foreseeability also applies to the plaintiff's financial state. -As long as the initial injury was foreseeable, liable for the consequences that subsequently flow from it (Stephenson) -Note that Impecuniosity does not mean you don’t have to mitigate your losses as a plaintiff. You still have a duty to mitigate your losses but impecuniosity will be considered.

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E. Proof of Negligence (i) Res Ipsa Loquitor “the thing speaks for itself”; the court may draw an inference of negligence, applicable when no direct evidence or conclusion from the breach.

Scott v London (1865)

3 elements to prove

-Prima facie presumption against the defendant, inferring the defendant was negligent. -If the defendant can explain that the accident would have been caused anyhow; prima facie presumption is rebutted 1. Damage has occurred; the plaintiff suffered some kind of damage that wouldn’t have occurred without negligence 2. The defendant must have been in control of the thing/situation. 3. There is no other explanation to prove the facts.

Hawke’s Bay Motor [1972] NZ (SC)

On Balance of Probabilities

-Illustration of the rule that the defendant can rebut the prima facie presumption -All the defendant had to do was rebut so the plaintiffs case stayed below the 50% chance of probability mark

(ii) Intervening Cause A new cause which breaks the chain of causation. No liability if it’s successfully raised.

Where harm is not caused by D: liability for harm caused by 3rd parties A duty of care may be owed by the defendant to a plaintiff for the harm caused by a third party: Duty of care requires two relationships: 1. Relationship of control between D and the 3rd P Must have sufficient power and ability to eliminate or at least reduce the risk. e.g. In Couch , the probation department had the ability to control only to the place of employment – thus duty only able to be owed with respect to employment. 2. Relationship of proximity between the defendant and the plaintiff, such that it is fair, just and reasonable, subject to matters of policy, to impose a duty of care. Need special risk: that P, as an individual or as a member of an identifiable and sufficiently delineated class, was or should have been known by the D to be the subject of a distinct and special risk of suffering harm of the kind sustained. -Identifiable and sufficiently delineated class – must show a particular vulnerability or predictable target

Couch v Attorney-General [2008] NZSC

Third Party Intervention

-The court holds than in order to impose a duty on such person, to prevent another person from harming the plaintiff, we need to say the plaintiff was at special risk. Otherwise the duty would be owed to the world at large. -Need to assess the two different relationships, 1. Control (d + 3 rd) 2. Proximity (d + p) 1. The plaintiff will have to be able to single themselves out to show their exposed to special risk to limit floodgates. 2. Particularly using Couch, the plaintiff must show the following two things. a) Plaintiff is a member of a particular sufficiently delineated class of persons. The defendant ought to have known that the plaintiff was facing harm from the acts of the 3 rd person wrongdoer. b) The plaintiff must be able to say the public authority/defendant had the power of control, legal and/or physical.

Mitchell v Glasgow City Council [2009] (HL) 1. Foreseeability on its own is not enough. (Seeing someone walk over a cliff you would be liable as foreseeable) 2. The law does not normally impose a positive duty on a person to protect others. 3. The law does not impose a duty to prevent a person being harmed by the criminal act of a third party simply based on foreseeability. -Duty is created by the relationship of proximity between the parties; the scope is determined by what in the contest of that relationship is reasonably foreseeable.

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A. MENTAL INJURY and NERVOUS SHOCK S 317 of ACC act; bars liability in negligence for personal injury: For Mental injury to be actionable, it must fall outside of the scope of the accident and personal injury definitions laid down in the Act. How do we classify what personal injury is? Interpretation in s 26. Accident Compensation Act 2001, s 6 21B -Mental injury without physical injury generally is not generally recoverably except for special circumstances. Personal injury includes: (a) death (b) physical injury (c) mental injury suffered because of physical injury (s 26) (d) workrelated mental injury (s 21B) (e) mental injury from a sex crime (s 21) pg 151 of coursebook Is a class of damages that can be sued for; exemplary damages, not barred by s 317. Compensatory damages claim for mental injury alone open

Primary Victims Was it reasonably foreseeable that the Plaintiff would suffer personal injury of any type due to D’s negligence? Page  All that is required for recoverable mental ...