Week 4-Negligence - Negligence I: Introduction and duty of care PDF

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Negligence I: Introduction and duty of care ...

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Week 4: Negligence I: Introduction & Duty of care (August 12-16) -

Duty of Care & Role of Public Policy Legal Ethics; Advocates Immunity; Lawyers and Negligence; the duty to the client Stewart & Stuhmcke, Australian Principles of Tort law, Ch 8 and [16.1]

8.1 Introduction o The tort of negligence is a cause of action on the case. It provides a remedy for accident victims who suffers loss as a result of the fault of another o Structure and framework of the tort remain outlined by the common law. o The tort of negligence has four fundamental elements that must be proved by a plaintiff, on the balance of probabilities in order to succeed in a claim: - That the defendant owed the plaintiff a duty of care - That the defendant breached that duty of care by negligence conduct; - That the defendant’s breach caused the plaintiff actual damage (causation) - The damage is not too remote from the breach 8.2 The Development of the Tort of negligence o Donoghue v Stevenson and Lord Atkin’s ‘neighbour principle’ (a general test for Duty of Care and liability in negligence) - Extension of duty of care w/ Neighbour principle: must take reasonable care to avoid acts or omissions that you can reasonably foresee the likelihood of injure to your neighbour, notion of proximity (the state of being near in space or time).  owe a duty of care to your neighbour anyone that would be affected by your action or inaction - Needs to reasonably close in proximity to owe them a duty of care. - The ‘neighbour principle’ of Lord Atkin whereby: o Duty of Care is defined by Reasonable Foreseeability of a plaintiff and o Liability is founded on the Defendant’s failure to take reasonable care - Who then, in law is my neighbour? Neighbours in 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 into question.” - Event: Donoghue went to a café and her friend bought her ginger beer. Abit of the drink was poured out, and then rest was- revealing that a decomposed snail had been in the drink the whole time. P drank ginger beer manufactured by D. A dead snail was in the bottle and P suffered from shock and suffered gastroenteritis. - Judgment: There was no privity of contract between P and D, however majority of the House of Lords recognised a duty of care owed by a manufacture to the ultimate consumer of a product (neighbour principle). 8.3 The Duty of Care: Scope and Content o A duty of care is the obligation to avoid acts or omissions, which are reasonably foreseeable to cause damage to another

o Whenever one is engaged in an act that he or she can reasonably forsee would be likely to injure another person, a duty of care is owed to that other person. o To establish that a defendant owes a plaintiff a duty of care requires one of two legal determinations o Either: - The relationship between the plaintiff and the defendant falls within an ‘established duty category’ (recognised relationship)  scope/ content of duty is very much already determined (E.g.: Employers/employee, doctor/patient, hospital/patient, school/pupil) - The relationship falls outside established duty categories aka novel duty of care (there is no recognised duty of care). To determine where a DOC exists in a novel fact situation is to take into account a) reasonable foreseeability, and b) salient features which confirms a legal/factual link between the duty owed by P to the D. 8.4 The Duty of Care: Reasonable Foreseeability o Reasonable foreseeability is a condition essential to, though not sufficient for, the establishment of a duty of care 8.4.1 Reasonable foreseeability of the plaintiff o A plaintiff will have to demonstrate that a reasonable person in the position of the defendant would recognise that negligent behaviour would foreseeably cause injury to another person o It is difficult to determine at what level of specificity the danger, and the person who it might affect, must be foreseen o Chapman v Hearse (1961): Chapman drove his car negligently, was thrown from the car. Dr Cherry rendered assistance to Chapman. Hearse who was also driving negligently ran down Dr Cherry, killing him. Dr Cherry’s family successfully sued Hearse, who then brought proceedings against Chapman. - Argument: Chapman argued that he owed no duty of care to Dr Cherry because he was unforeseeable - Court held: Incident was reasonably foreseeable o Who is a reasonably foreseeable plaintiff? All that must be foreseeable is a ‘consequence of the same general character’ as that which actually eventuated, not necessary for the plaintiff to show precise manner in which his injuries were sustained was reasonably foreseeable AND P needs only to be foreseen as one of the class of persons who might be affected by D’s negligence Chapman v Hearse o Reasonable foreseeability = not unlikely to occur  Chapman v Hearse o Reasonable foreseeability alone is not sufficient to establish a duty of care (Jaensch v Coffrey) must have additional factor going to relationship, which is appropriate to impose a duty. 8.4.2 Some case of unforeseeable plaintiffs These are cases where P will be unable to establish the requisite of reasonable foresight. A plaintiff cannot rely on a duty that might be owed to someone else. They must always establish that a duty is owed to them, at least as a member of class. Palsgraf v Long Isalnd railroad (1928) o P was standing on the other side of the platform and was injured after two employees knocked a package accidentally and the fireworks in the package exploded

o COURT HELD: P could not establish that it was reasonable foreseeable that the actions of the railway employees might cause injury to someone in her position on the station platform - Court said the guards had no idea that the package had fireworks, reducing their liability further. Bourhill v Young (1943) o P was alighting from tram, when she said a motorcyclist go by in the same direction as the tram, moving at excessive speed and colliding with a car. P did not see collision but heard it. At trial, judge held P had suffered nervous shock that disabled her from carrying on her business for a time o COURT HELD: No duty of care owed to P- motorcyclist owed duty of care to other road users who were reasonably foreseeable, but P was not one of them Chester v Waverley Corporation (1939)  judgements of majority have not worn well with time: Janesch v Coffey o P’s son was found dead and P suffered nervous shock when the body was recovered o COURT HELD: Not negligence- reasonable person would not foresee that the negligence of the D’s towards the child would so affect the mother Sydney Water Coroporation v Turano o Mr Turano and his family were travelling on a road when a tree fell on their car, killing Mr Turano. Mrs turano alleged that the water main, installed 20 years prior had caused water from the culvert to dam up and spread the roots of the tree. Coucil was exonerated, but Sydney Water’s liability went to the HC o COURT HELD: There was no duty of care - Tree falling after installing water main was not reasonably foreseeable - Absence of control of tree on Sydney Water’s part - No sufficient connection between Mrs T and Sydney Water. Seltsam Pty Ltd v McNeil (2006) o P was working as a handyman at his sister’s house and was exposed to asbestos and was later diagonised as suffering from mesothelioma. o COURT HELD: the defendant could not have foreseen that ‘a person whose exposure to asbestos was of the extremely low intensity of [the plaintiff’s] no duty owed to the plaintiff – the plaintiff cannot take advantage of the fact that the D happened to be committing a wrong to someone else, he must bottom his claim on violation of a right of his own. The Atypical Plaintiff: o This is the plaintiff who is more susceptible (easily influenced or harmed by something) to injury than a normal person because of their physical or ental condition. o Principle is as follows: a) D is under no duty to take special steps to protect an atypical plaintiff; however b) If an typical plaintiff is injured in a situation where a normal person would have been injured then they may recover, and they will recover for all of the injury they suffer (regardless of whether a normal person would have suffered the same degree of injury). Levi v Colgate-Palmolive Pty Ltd (1941)

o P received free box of sample product from D – which included bath salts. P suffered from allergy, which resulted in her skin being hypersensitive. After staying in the bath for 20 min, P became very red and developed a long lasting itch. o COURT HELD: No duty of care owed to Levi – Jordan CJ said that companies are “subject to no duty to issue warnings that the use of such articles may cause discomfort or injury to the abnormal (deviating from what is normal or usual, typically in a way that is undesirable or worring) persons who may be allergic to them” Hayley v London Electricity Board [1964] o D’s employees had excavated (make by digging) trench, put makeshift barriers, which included pick and shovel. P was blind and missed the barriers and tripped over them, becoming dead as a result. o D argued that it was under no obligation to give consideration to the blind/infirm (not physically or mentally strong, esp through age or illness), as it only needed to foresee/safeguard injury against to an ordinary abled-bodied person o COURT HELD= DUTY OF CARE OWED - Though the risk of a blind person coming across the trench was small, it was reasonably foreseeable that a blind person may still come across it - Not onerous (involving a great deal of effort, trouble or difficulty) for D to take precautions for such events 8.5 Scope of a Duty of care o Kirby J believes one should express the duty of care only as a duty to exercise reasonable care in all circumstances: Vairy v Wyong Shire Council o Even when there is an established duty of care, the court may have to decide to what scope that duty extends. The Approach to Duty in novel cases – ‘salient feature’ Novel Case is a case for which no precedent can be found. Process: a) Could the D reasonably have foreseen that the actions would give rise to harm to a class of persons including P? Chapman v Hearse b) Incremental (happening gradually, in a series of small amounts) development in novel or difficult cases  Perre v Apand c) Is the imposition (a situation in which someone expects another person to do something that they do not want to do or that is not convenient) of a duty of care justified, based on “salient feature” in other cases in a similar category? Sullivan v Moody (including policy) 1. Proximity was used in Donoghue v Stevenson to describe ‘such close and direct relations’ between plaintiff and defendant ‘that the act complained of directly affects a person’.  If relationship of proximity could not be established between a plaintiff and defendant, there is no duty of care (Sutherland shire council v Heyman) The idea of proximity in a physical sense was significantly applied in Home Office v Dorset Yacht Co Ltd [1970] AC 1004.

o COURT HELD: It was foreseeable that escaping prisoners might damage property in making their escape, only those persons who owned property in close physical proximity to the escape point would be owed a duty of care by the prison authority o Even though it was foreseeable prisoners ‘on the run’ might damage that more distant property, the distant property owners were not subject to the same risk as those near to the point of escape. Proximity is not the answer- all judges agreed that proximity is not a universal determinant of duty of care 1. 3 stage approach  Approach that looks at a duty of care being established in 3 stages, but not law in Australia - Kirby J a) Reasonable foreseeability b) A relationship of proximity between P and D c) Fair, just and reasonable that a duty should be imposed  Not law in Australia (Sullvian v Moody) Sullivan v Moody (2001)- Main authority o HCA unanimously held that the Caparo three-stage approach is not law in Australia. 2. Incrementalism o Method of developing novel cases incrementally, advocating the development of law in incremental steps with the use of precedent rather than by the application of broad general rules. o Brennan J dissenting said law in novel cases should be incremental and analogous (similar or comparable to something else) to established categories, use of precedent o Favour an incremental (happening gradually, in a series of small amount) approach based on salient (important) features for novel cases (Sullivan v Moody) Incremental approach based on identifications of salient features Judgments in Perre v Apand show support for an approach to the duty question based on the identification of broad categories of case and identification of ‘salient features’ or ‘factors’ which mitigate either against or in favour of the imposition of a duty of care. Salient feature (as per Sullivan v Moody + Perre v Apand) Point against duty of care:  Finding a duty would cut across/undermine (less likely to succeed, make something less powerful) other legal rules  Avoid a collision between one area of law and another (in the case of negligence and defamation)  The issue of composing on a defendant duty which will be incompatible with another different legal duty already owed by the defendant (in this case, duities under child protection legislation.  To recognise a duty would expose D to indeterminate (not exactly known, established) liability

 Coherence (the quality of being logical and consistent) in the law  Policy considerations (Sullivan v Moody)  Conflicting duties (Sullivan v Moody) Factors supporting a duty of care:  Vulnerability on part of the plaintiff (Perre v Apand) and the degree to which the plaintiff is able to protect against violation of its own personal and property right  Control/ Power of D (Perre v Apand)  Knowledge possessed by the D about the circumstances that gave rise to damage suffered by P (Perre v Apand)  Personal Autonomy (govern itself or make independent decisions) of P  Assumption of responsibility of D to protect P  Reasonable foreseeability 8.6 The Role of Public Policy in the Duty of Care Question 

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Public policy is the consideration of matters, which are not strictly ‘legalistic’ in nature. They include notions of justice and morality, social or economic, or community values (the public interest) and the appropriate role and scope of the tort of negligence. The Australian High Court has in many cases looked to considerations of policy when deciding whether to impose a duty of care in difficult or novel cases

Several categories of case are described where policy issues have been decisive in the denial of a duty of care: Advocates immunity:  Advocates immunity is a doctrine which protects lawyers, both solictors and barristers, from being sued by their client for negligence  Advocates immunity was confirmed in D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1  Advocates are protected from being sued in respect of the conduct of court proceedings and matters intimately connected with such matters.  A majority of the Australian High Court confirmed the long-standing immunity of legal advocates from suit in negligence in respect of acts or omissions in the conduct of cases in the court an in respect of any out of court work closely connected to the conduct of the case in court. D’Orta-Ekeniake Victoria Legal Aid (2005)  The appellant charged with rape, and alleged that as a result of a breach of duty by Victoria Legal Aid + barrister, he continued to suffer loss/damage (3 years imprisonment)  breach was that P was advised to plead guilty to receive a suspended sentence despite P claiming he was innocent. He as acquitted at a retrial.  COURT HELD (WITH DISSENT a strong difference of opinion on a particular subject): Advocates immunity applied, namely to work done “ in court or work done out of court which leads to a decision affecting the conduct of the case in court” OR “work intimately connected with work in a court”.

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“Where a legal practitioner [barrister or solicitor instructing barrister] gives advice which leads to a decision which affects the conduct of a case in court, the practitioner cannot be sued for negligence” Criminal investigations:  Police investigating crimes do not owe a duty of care to individuals of the public failing to apprehend a dangerous criminal  Police criminal investigations: Hill v Chief Constable of West Yorkshire Discussion questions for class: 1. What were the main purposes of the Tort Law Reforms enacted in the Civil Liability Act in 2002 in NSW? The Civil Liability Act was enacted in 2002 to address to perceived problems with the application of tort law and resulting increases in insurance premiums. The Civil Liability Act applies in most circumstances where negligence is alleged against a defendant. Does not generally alter the common law as to when/how a duty of care arises Except in so cases where the legislation provides that a duty will not be imposed And some cases where the legislation provides that a duty will not be imposed. o Put more of a focus on the personal responsibility of plaintiff’s o Unaffordability of insurance premiums, become increasingly high o Decreasing the amount of damages by putting a cap on certain type of damages o Control on lawyers, restricting legal costs recoverable in relation to small claims, and requiring lawyers to show there are reasonable prospects of success before commencing actions in courts 2. What is Lord Atkin’s “Neighbour principle” as stated in Donoghue v Stevenson? Was that principle part of the Ratio in the case? Donoghue v Stevenson [1932] per Lord Aktin  Extension of duty of care w/ Neighbour principle: must take reasonable care to avoid acts or omissions that you can reasonably foresee the likelihood of injure to your neighbour, notion of proximity (the state of being near in space or time). Who then, in law is my neighbour? Neighbours in 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 into question.” Allowed for novel cases and developed negligence to be applicable outside of certain categories  Ratio- Manufacturers owe final consumers a duty of care regarding their product, even if there is no explicit (clear) contract between the two. 3. What are the “elements” of the tort of negligence? The tort of negligence has four fundamental elements that must be proved by a plaintiff in order to succeed in a claim: 1. That the defendant owed the plaintiff a duty of care; 2. That the defendant breached that duty of care by negligent conduct/failure to take care; and

3. That the defendant breach cause the plaintiff actual damage 4. The damage caused is not too remote from the breach. 4. Explain ‘reasonable foreseeability’ and what ‘unforeseeable plaintiff’ means. To what extent do the cases of Haley v London Electricity Board and Levi v Colgate Palmolive help in your understanding of this concept? (cases: Haley v London Electricity board, Chester v Waverley Corporation, Levi v Colgate Palmolive Pty Ltd, Seltsam Pty Ltd v McNeil) - A plaintiff will have to demonstrate that a reasonable person in the position of the defendant would recognise that negligent behaviour would foreseeably cause injury to another person - All that must be foreseeable is a ‘consequence of the same general character’ as that which actually eventuated, not necessary to show precise manner foreseeable AND P needs only to be foreseen as one of the class of persons who might be affected by D’s negligence Chapman v Hearse (at that time that was the view of court, important to take note of the date of event) - Reasonable foreseeability = not unlikely to occur  Chapman v Hearse - For liability there must be reasonable foreseeability of the risk of injury to the plaintiff individually or to a class of people that includes the plaintiff. o Reasonable foreseeability test is applied in 3 different stages in a negligence inquiry- different level of abstractions ...