CLAW1001 Lecture Notes - Lecture 8: Australian Consumer Law, Ginger Beer, Safeway Inc.
16 May 2018
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CLAW1001: TORTS Lectures
• The main objective of torts law is to discourage unnecessarily harmful behaviour by
the imposition of compensation liability on the person who commits a tort – Lipton et
al.
Elements of negligence
1. Duty of care
2. Breach of duty of care
3. Causation
4. Remoteness
Duty of care
o Established categories
• Manufacturer to consumer: Donoghue v Stevenson – snail in ginger beer
Lord Atkins neighbour principle
Reasonable foreseeability as generic test for duty of care
Those reasonably foreseeable are those who a reasonable person should have
in contemplation when doing acts or omissions
Basis for modern Australian Consumer Law which imposes strict liability
• Manufacturer to consumer: Grant v Australian Knitting Mills – infected underwear
• School to pupil:
• Drivers to road users: Highway cases means plaintiff bears onus of proof of fault:
Venning v Chin
• Occupier to entrants: Modbury Triangle Shopping Centre v Anzil – lights off in car
park of mall
No duty of care of occupiers to restrict/mitigate actions of third party
criminals
• Occupier to entrants: Thompson v Woolworthes (bins), Australian Safeway Stores v
Zaluna (slip and fall)
• Professionals to clients
• Hospital to patients
o Novel case scenario: salient features, incremental approach
• Salient features test: Gummow and Gleeson in Perre v Apand (infected potato
seeds) and Allsop P in Caltex Refineries (Qld) Pty Ltd v Stavar (wife of employee
exposed to asbestos. From Allsop Ps list, includes:
a) Foreseeability of harm
b) Nature of harm alleged
c) Degree and nature of control able to be exercised by defendant to avoid harm
d) Degree of vulnerability of plaintiff; including capacity of plaintiff to protect
themselves
e) Proximity in physical, temporal or relationship sense
f) Knowledge by the defendant that the conduct would cause harm to the plaintiff
o Psychiatric injury to third parties:
• Jaensch v Coffey (Psychiatric illness due to seeing her husband with serious injuries
caused by negligent driving of defendant)
Note S30 of CLA: Limitation on recovery for pure mental harm arising
from shock
(2) The plaintiff is not entitled to recover damages for pure
mental harm unless:
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(a) the plaintiff witnessed, at the scene, the victim being killed, injured or
put in peril, or
(b) the plaintiff is a close member of the family of the victim (note: includes
spouse, child or stepchild they are responsible for, parents, brother, sister,
step-brother, step-sister)
o Wrongful birth and wrongful life actions
• Cattanch v Melchiors
Negligent doctor is performing sterilisation procedure, leading to pregnancy
Melchiors successfully claimed compensation to recover cost of raising child…
BUT NOTE: s71 of CLA says court cannot award damages for economic loss of
rearing/maintaining the child or loss of earnings from rearing/maintaining
the child
• Harriton v Stephens
Dr Stephens failed to advise (arritons mother that she had rubella, (arriton
born with severe disabilities
Appeal dismissed, no claim for wrongful life
Policy considerations, inconsistencies between duty of care of mother and
doctor, difficulty of finding compensable damage given the comparison
between existence and non-existence
o Statutory limitations on duty of care owed:
• S 5G of CLA: Injured persons presumed to be aware of obvious risk
If an obvious risk, person presumed to have known about that risk, unless
they can prove, on the balance of probabilities, that they were not aware
They DO NOT need to be aware of the precise nature, extent or manner of
occurrence of that risk
• S 5H of CLA: No proactive duty to warn of obvious risk
(1) A person (the defendant) does not owe a duty of care to another person (the
plaintiff) to warn of an obvious risk to the plaintiff.
(2) This section does not apply if:
(a) The plaintiff has requested advice or information about the risk from the
defendant, or
(b) The defendant is required by a written law to warn the plaintiff of the risk,
or
(c) The defendant is a professional and the risk is a risk of the death of or
personal injury to the plaintiff from the provision of a professional service by
the defendant.
(3) Subsection (2) does not give rise to a presumption of a duty to warn of risk in
the circumstances referred to in that subsection
• S 5L of CLA: No liability for harm suffered from obvious risks of dangerous
recreational activities
(1) A person (the defendant) is not liable in negligence for harm suffered by another
person (the plaintiff) as a result of the materialisation of an obvious risk of a
dangerous recreational activity engaged in by the plaintiff.
(2) This section applies whether or not the plaintiff was aware of the risk
• S 5M of CLA: No duty of care for recreational activity where risk warning
If warning given to plaintiff, no duty of care owed by defendant
Breach of duty
o S 5B of CLA:
(1) A person is not negligent in failing to take precautions against a risk of harm unless:
a) The risk of foreseeable, ad
b) The risk was not insignificant, and
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c) )n the circumstances, a reasonable person in the persons position would have taken
those precautions
o First query: whether a reasonable man in the defendants position would have foreseen the
injury
o Secondly query: what would a reasonable person do in response to the risk? Consider, as
question of fact: (as per Mason J in Wyong Shire Council v Shirt)
• Magnitude of the risk
• Probability of harm
• Burden of taking precautions: Expense, difficulty and inconvenience of taking
alleviating action
• Other conflicting responsibilities defendant may have (See Romeo case)
o General principles: Reasonable persons response to a foreseeable risk:
• Wyong Shire Council v Shirt (shitty and misleading council sign)
Foreseeable risk of injury
Simple precautions could have been taken e.g. make more detailed sign
Mason J: )n considering a reasonable persons response to the foreseeable
risk, see above.
o Magnitude of risk:
• Paris v Stepney Borough Council (chip from bolt left half-blind man completely
blind)
Employer knew of one eye being blind yet did not provide goggles
Magnitude of risk greater for someone who has a particular condition
Duty to take additional simple precautions to mitigate that serious risk
o Probability of harm:
• Bolton v Stone (hit in head by cricket ball)
Risk was foreseeable
BUT what a reasonable person would do in response to the risk…
Risk was so small
Precautions already included 5m high fence, unreasonable to extend for such
low probability of occurrence
o Burden of precaution and other conflicting responsibilities:
• Romeo v Conservation Commission of the Northern Territory (dumb drunk fell of
cliff)
Burden of taking precautions and fencing off was unrealistic, since the
Conservation Commission of the NT was responsible for so many areas
Cost would be too great
Can argue obvious risk
Conflicting responsibilities: Other responsibilities to retain naturality and
beauty of areas – fences and lights would prevent this
o Professional standard of care:
• S 5O of CLA: Standard of care for professionals (DOES NOT APPLY TO WARNING OF
RISKS IN S 5P)
No liability for professionals in negligence if they had acted in a manner
widely accepted in Australia by peer professional opinion as standard
practice
CANNOT rely on peer professional opinion if court deems irrational
Peer professional opinion DOES NOT have to be universally accepted, simply
widely accepted
• Bolam principle, Rogers v Whitaker
Causation
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Document Summary
Claw1001: torts lectures (cid:494)the main objective of torts law is to discourage unnecessarily harmful behaviour by the imposition of compensation liability on the person who commits a tort(cid:495) lipton et al. Elements of negligence: duty of care, breach of duty of care, causation, remoteness. Venning v chin park of mall in contemplation when doing acts or omissions. Reasonable foreseeability as generic test for duty of care. Those reasonably foreseeable are those who a reasonable person should have. Basis for modern australian consumer law which imposes strict liability. No duty of care of occupiers to restrict/mitigate actions of third party criminals: occupier to entrants: thompson v woolworthes (bins), australian safeway stores v. Jaensch v coffey (psychiatric illness due to seeing her husband with serious injuries caused by negligent driving of defendant) Negligent doctor is performing sterilisation procedure, leading to pregnancy: harriton v stephens.
