LAWS1203 Lecture Notes - Lecture 1: Circumstantial Evidence, Nzr Ds Class, Tortious Interference
1. Duty of care
A cause of action in negligence requires P to show on a balance of probabilities:
1. 'DUTY': D owed P a legal duty to take reasonable care.
2. 'BREACH': D failed to meet that duty (because they unreasonably took insufficient care about foreseeable harm to P: D
was 'negligent')
3. 'CAUSATION': D's breach conduct was a cause of P's harm.
4. 'HARM': P can show actual harm (compare trespass).
Trespass
- Intentional interference with protected interests
- P need not prove actual damage (‘actionable per se’)
- Onus on P to show all elements of liability
Negligence
- Non-intentional harm (but still an element of fault)
- P must prove actual damage (‘compensable harm’)
- Onus on P to show all elements of liability
How justly and efficiently due we remedy the inevitable non-intentional harms (physical & psych, material or financial) in our
crowded, complex, industrialised, networked society?
How allocate (and limit) responsibility for avoiding or mitigating risks to personal and property interests?
When should legal burden for accounting for harm shift from P to D?
• Criterion of liability/responsibility
• Loss never shifts
• Loss always shifts
• Loss sometimes shifts – fault, the determinant of when and why we shift loss
‘Fault’ as determinant, ‘reasonableness’ as criterion
Balance between P’s freedom from injury … D’s freedom to act
Elements of Negligence
[P suffers a relevant harm] (that society considers is worthy of protection)
[Onus on plaintiff, must prove on balance of probabilities]
1. Duty of Care (by Defendant to class of Plaintiffs to which the Plaintiff belongs)
i. Was the harm reasonably foreseeable
2. Breach of duty (Defendant not meet standard of reasonable care)
i. Question of circumstantial fact
3. Causation (Defendant’s act a cause, in fact + law, of Plaintiff’s harm)
i. Factual causation and legal causation (remoteness)
- [No defence for Defendant]
- [Any vicarious liability?]
- Legal policy device/reason – deterrence to others
[Damages]
Duty of care
• Nature and themes, history and foundations
• A test? Established categories vs. new scenarios
• ‘Reasonable foreseeability’: foreseeable class of Ps
• ‘Foreseeability is not enough’: why need other factors?
• ‘Foreseeability is not enough’: what are other factors?
Duty of care origins
• ‘Trespass on the Case’ (indirect injuries) + rigid categories (i.e. doctor and patient)
o Had to show a relationship between plaintiff and defendant
• Rise in number and complexity of claims (unintended harm where no contractual relationship)
• Donoghue v Stevenson * HL 1932
o Facts, issue, finding
o (a) ‘Narrow’: new category (Duty owed by manufacturers to consumers, in narrow terms)
▪ Consumer did not have a contractual relationship with the manufacturer
o (b) ‘Broad’: Atkin’s general principle of duty of care – to explain all categories – p102+4
o Legacy + enduring judicial concerns?
• Donoghue v Stevenson, Lord Atkin (p 103 text)
o “…rules of law arise which limit range of complainants and extent of remedy … ‘love your neighbour’
becomes in law ‘must not injure your neighbour…’
find more resources at oneclass.com
find more resources at oneclass.com
o ... ‘who is my neighbour?’ receives a restricted reply =
o D must take reasonable care to avoid acts or omissions which D can [should] reasonably foresee likely to injure
… persons so closely and directly affected by D’s act that D ought reasonably to have had them in
contemplation as being so affected …”
Donoghue v Stevenson: a basic test for duty of care – from neighbour principle
1. Reasonable foreseeability
a. ‘[should] reasonably foresee’ likely injure P (class) in that way
b. what does reasonable mean?
c. necessary but not sufficient
2. Sufficient relationship
a. ‘persons so closely and directly affected’ (‘proximate’)
b. but how close and direct?
1. ‘Reasonable foreseeability’
• [Duty, breach, causation all have a foreseeability aspect]
• Chapman v Hearse * 1961
o Must P show D could / should have foreseen harming this P, or just class to which this P belongs?
o Must P show D should have foreseen exact events, or just ‘consequence of same general character’?
o Dr Cherry’s deceased estate sues Hearse successfully for negligence
o Chapman v Hearse arises as Hearse accuses Chapman of his negligence as the start of the chain of the events
▪ Issue: Did Chapman owe a duty of care to Dr Cherry?
• Did Chapman owe a duty of care, not only to others using the road, but also to a person
rescuing him from an injury as a result from his own negligence?
o Legal issues: Duty of care → reasonable foreseeability / Causation → intervening act
o It is reasonably foreseeability that negligent driving will cause an accident, and someone will come to your aid.
▪ It is not necessary that the precise sequence of events leading to the injury is foreseeable. It is sufficient
that the plaintiff belongs to a class of persons (in this case, rescuers) to whom the damage could have
been foreseen.
o Category of ‘road user’ extends to rescuers
• Reasonable as in ‘not unlikely’, ‘by no means unlikely’
o Limits liability of defendant
• The unforeseeable plaintiff? Consider and compare:
o Caterson v Commissioner for Railways
▪ Man with son left on train platform – duty of care as no signal of train’s departure
o Chester v Waverley Council
▪ Child drowned in water pipes and mother suffering mental injury – no duty of care
o Bourhill v Young
▪ Pregnant woman and dead motorcyclist – no duty of care
o Sydney Water v Turano*
• Harm of that general kind to a general class of Ps of which he/she belongs was reasonably foreseeable in the sense that
it was not unlikely
• Sydney Water Corporation v Turano* 2009
o Feel the continued resonance of Donoghue v Stevenson
o Distinguish 2 x D’s (local council, Sydney Water)
o How define the class of Ps?
o What event did P need to show was reasonably foreseeable?
▪ At the time of the negligent conduct by laying pipe in 1981, that a group of Ps (road users) was
reasonably foreseeable to be harmed → NOT reasonably foreseeable
▪ Should future road users be considered as neighbours of law to Sydney Water
o Time and other factors
o [Framing foreseeability]
o [Foreseeability at 3 stages]
What do courts mean by ‘reasonable’ foreseeability DoC?
• Chapman v Hearse: ‘not improbable’, ‘not unlikely’
• Caterson v Railways: ‘not unlikely to occur’, a ‘real risk’
• Sydney Water: ‘not reasonably foreseeable consequence’
D’s duty must be owed to P, not just to some Ps…
• Bale v Seltsam 1996: high-use risks known, duty to such users, but partner of high user not a foreseeable class
o Wife of worker was exposed to asbestos from husband’s work clothes. Not held to have been owed a duty of
care – outside class of plaintiffs.
o Risks of high-level expose were well-known at the time. And duty of care was owed to employees.
• Seltsam v McNeill 2006: high-use risks known, duty to high users, but low users not within foreseeable class
o No duty of care owed – not within a foreseeable class of plaintiffs.
➢ When does cause of action arise – time of harm, time know of harm, time should have known?
➢ Asbestos; cigarettes; other?
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find more resources at oneclass.com
Beyond reasonable foreseeability
• Understanding RF as necessary but not always sufficient for existence of a DoC
- Courts trying to set parameters to limit liability – through duty of care
• Lord Atkin in Donoghue v Stevenson*: limiting the range of P’s and the extent of their remedy
• Why this need to limit? Why is RF not always enough for a duty of care to exist?
• E.g. Sydney Water and Bourhill – court not discuss proximity etc. because no duty of care – 1st element not met
2. Relationship of ‘proximity’
• [1st step = was harm of this general kind to Ps in this class reasonably foreseeable?]
This may not be enough to warrant a new duty of care, so…
• 2nd step = are P and D in a sufficiently ‘proximate’ relationship in terms of (a) physical nearness and (b) relational
nearness (‘such close and direct relations…’)
Can you see Lord Atkin acknowledging difficulty with ‘closeness’?
• The English 2-part formula
• The English 3-part formula
• Deane J: the Australian ‘proximity’ cases
• Brennan J: the retreat from ‘proximity’ and ‘policy reasons’
‘Proximity’: a brief history
• The English 2-part formula – RF + reason not to impose a duty? (too expansionary)
• The English 3-part formula – RF + proximity + fair, just and reasonable to impose DoC
• Deane J: The Australian ‘proximity’ cases – physical proximity, relational proximity
• Brennan J: the retreat from ‘proximity’ and ‘policy reasons’
Reasonable foreseeability and proximity: Sullivan v Moody* p110
• Unanimous High Court judgement – very binding
• Facts: parents were under investigation by the authorities, who were acting on their statutory duties, for alleged child
sexual abuse. Some of them claimed to have developed mental illness as a result of knowing that they were under
investigation. They argued for compensation because the investigators were careless and negligent and exposed them to
harm. No existing category of duty owed.
• Decision: harm was reasonably foreseeable, but no sufficient relationship factors and would create (2) conflict in the law
as putting child’s interests is the ultimate priority – no duty of care. (1) Private persons’ autonomy is paramount.
• Explains why reasonable foreseeability is necessary but not always enough
• Clear rejection of ‘proximity’ as formula, and ‘policy’ tests – but doesn’t reject the concept of proximity
• Proximity survives! (concept, not reasoning): search for sufficient relational factors (‘salient features’) to impose a new
DoC …
• Explains why sometimes no duty even if Reasonable Foreseeability + ‘proximity’
Towards a duty of care test
• Established categories: = move swiftly to ‘breach’ issue
• New simpler cases (no category): = if clear positive act by a private individual which directly causes physical harm to P,
RF of damage of that general nature to that class of P’s is enough
• New complex cases (esp. omissions): =
i. RF that kind of harm to that class of P’s, plus
▪ E.g. Sullivan v Moody – court accepts that harm to the specific plaintiffs was reasonably foreseeable,
but needs to be more factors to establish DoC
▪ E.g. Sydney Water harm not reasonably foreseeable
ii. Sufficient relationship factors ‘salient features’, plus
▪ Salient features – factors about control; non-definitive; e.g. is Plaintiff reliant on defendant to take
reasonable care? (Donoghue v Stevenson)
▪ E.g. Sullivan v Moody – no sufficient relationship factors, no DoC
iii. No legal policy reason not to recognize a duty
▪ E.g. Sullivan v Moody – would create conflict in the law, no DoC
Foreseeable duty of care cases
• Chapman v Hearse – only have to show that general sequence of events is reasonably foreseeable
• Sydney Water – the relevant class of plaintiffs was ‘road users’ but harm to them was not reasonably foreseeable so no
duty of care
Unforeseeable plaintiff (no duty of care)
• Bourhill v Young
• Caterson v Railways
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
A cause of action in negligence requires p to show on a balance of probabilities: "duty": d owed p a legal duty to take reasonable care. "breach": d failed to meet that duty (because they unreasonably took insufficient care about foreseeable harm to p: d was "negligent") "causation": d"s breach conduct was a cause of p"s harm. "harm": p can show actual harm (compare trespass). P need not prove actual damage ( actionable per se") Non-intentional harm (but still an element of fault) Onus on p to show all elements of liability. When should legal burden for accounting for harm shift from p to d: criterion of liability/responsibility, loss never shifts, loss always shifts, loss sometimes shifts fault, the determinant of when and why we shift loss. Balance between p"s freedom from injury d"s freedom to act. [p suffers a relevant harm] (that society considers is worthy of protection)
