LAWS1012 Lecture Notes - Lecture 7: Ginger Beer, False Imprisonment, Manhole
16 May 2018
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Week 7: Negligence
• The term negligent has meant both a basis of liability and as a cause of action itself. We are now
looking at negligence as a cause of action
• Torts so far have protected distinct interests, particularly battery, assault and false imprisonment.
However, the tort of negligence has not one archetypal scenario from which it arises
• The plaintiff bears onus of proof on all elements of the tort of negligence – failure to prove any
element of the tort leads to failure of the plaintiffs claim
• The tort of negligence is informed by questions of reasonableness
• Elements of the tort of negligence:
1. Duty of care (scope of duty)
o Negligence is concerned with what a defendant has to do in respect of the plaintiffs
interests
o What is the scope of the defendants duty?
o For liability in negligence, the defendant must owe a duty of care to the plaintiff
o ASK: Is there an established duty of care category? Otherwise, there is a novel fact
scenario → determine reasonable foreseeability (neighbour principle), and incremental
approach and salient features approach
o Consider psychiatric injury – first establish common law duty of care owed, then we
work through the sections of the CLA, beginning with s 32
2. Breach (standard of care)
o Defednant has failed to meet standard of care we would expect of a reasonable person in
the defendants position
o What did the defendant do, and what would you expect a reasonable person to have
done in that circumstance?
3. Causation (remoteness/scope of liability)
o There needs to be a causal connection between the breach of duty and the harm
sustained by the plaintiff, otherwise no recovery
o The question to ask: What is the extent of the defendants responsibility for the harm
suffered by the plaintiff?
4. Damage
o Negligence is a tort that is an action on the case so damage is the gist of the case
o If there is no recognised form of damage, then the claim will fail
a) The concept of duty of care and judicial methodologies for establishing a duty of care
Donoghue v Stevenson [1932] AC 562
• Foundation of product law liability and modern law of negligenece
• The facts: Donoghue's friend bought her a ginger beer that had an opaque bottle. Finds snail at
bottom. Claims she suffered gastro-intestinal problems and psychiatric harm from shock.
• Question for House of Lords: Can she sue the manufacturer for the ginger beer? Can the
manufacturer owe a duty of care purely in tort to an end consumer?
• Outcome/reasoning:
To our minds, we would think that it is obvious that manufacturers have the liability…
but during this period, it was not clear whether a manufacturer owed a duty of care to
an end consumer
Lord Atkin: Donoghue's claim did not fit within any categories - need to articulate some
general principle that unifies these categories, for negligence - difficulty of fashioning
legal liability and interactions with notions of morality - cannot simply impose legal
liability based on moral liability - legal liability must reflect moral notions but must be
more restricted - liability can be imposed for both positive acts and omissions (which is
more difficult)
Neighbour principle:
▪ In order to owe a duty to the plaintiff, they must be reasonably foreseeable as a
minimum as a class of persons that the defendant ought to have in
contemplation. In this case, consumers are reasonably foreseeable class of
plaintiff. However, is reasonable foreseeability sufficient to impose a duty of
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care
▪ Another concept of neighbourhood: proximity - Lord Atkin asked is there a
proximity between defendant and plaintiff. Obviously, if there is a contractual
relationship, that will give rise to a definite proximity relationship. Here, there
is no contractual relationship, But Lord Atkin was still satisfied that this was a
satisfactory neighbour relationship
Lord McMillian (pg 118) about specificity of negligence - we do not talk about
negligence in abstract - you have to ask is there a duty and a duty to do what, between a
plaintiff and a defendant
Lord McMillan also raised the issue of the possibility of concurrent causes of action in
tort and contract - important in relation to professional negligence claims - breach of
reasonable care term in contract can give rise to liability in contract - may be express
terms or implied terms - McMillan said there can be concurrent claims in both tort
and contract and he emphasises of any contractual relationship is no bar to being
liability purely in tort
• Principles established:
The law concerns itself with carelessness only where there is a legal duty to take care. A
person owes a legal duty to take reasonable care to avoid acts or omissions which he or
she should reasonably have forseen would be likely to injure their neighbour.
Home Office v Dorset Yacht Company [1970] AC 1004
• The facts: A group of teens managed to escape from institution (Home Office) on island.
Nearby are yachts owned by Dorset Yachts. They get on the boats and damaged the boats.
Negligent proceedings against Home Office.
• Issue: Whether the Home Office, being vicariously liable for the conduct of the prison
officers, owes a duty of care to the yacht company, on the failure to take reasonable care to
prevent escaping of the boys (omission). In what circumstances is the Home Office liable
• Outcome/reasoning:
Ordinarily, our system of law says people are personally responsible for the torts
that they commit - so why is the Home Office liable for the independent
tortious/criminal acts of the boys
Questions of reasonable foreseeability - is it reasonable foreseeable that, if the
Home Office did not take reasonable care to keep the boys in incarnation, that the
boys would escape, and that they would damage property - and therefore, is the
yacht company reasonable foreseeable as a class of persons that would receive the
harm. Yes, they were a reasonably foreseeable class of plaintiff.
• Principles established:
A defendant may have a duty to supervise third parties and be liable for damage to
the plaintiff’s property aused y the onduct of the third party which is likely to
occur if the duty is breached
Perre v Apand (1999) 198 CLR 180 – Justice McHugh for incremental appraoch, Gummow and Gleeson for
salient features
Potato crisp manufacturer (Apand) sold infected seeds to Perre
• If you dont have a settled authority on point, if there is no clear duty of care owed, then you have
to use the salient features approach or the incremental approach - what are the features that
make it like another case? → See Caltex Refineries case
Graham Barclay Oysters v Ryan (2002) 211 CLR 540
• The facts: There was contamination by polluted runoff of oysters being cultivated in Wallis Lake.
Mr Ryan contracted hepatitis after eating the oysters
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• The issue: Did the council and the state of NSW owe a duty of care to Ryan?
• Outcome/reasoning:
Liability should be imposed where it was judged that a reasonable person in the
defendants position could have avoided damage by exercising reasonable care and was
in such a relationship to the plaintiff that he or she ought to have acted to do so
Steps to determine legal duty of care:
1. Was it reasonably foreseeable to cause the harm?
2. Look at the neighbour principle.
3. Whether it was fair that the law should impose a duty
• Principle established:
A duty of care will be imposed when it is reasonable in all the circumstances to do so
Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649 – Justice Stephens
• Facts: Case concerning injury from asbestos. Wife of employee was the one exposed to the
asbestos.
• Issue: Whether a duty of care can be imposed by an employer to an employees spouse.
• Outcome/reasoning:
It has been established that an employer owes a duty of care to employees not to expose
them to harmful substances during the course of employment, as it is a recognised
category of duty of care.
Regard to salient features approach → 14 salient features outlined at paragraph 103
These are the salient features that may be relied upon, only where there is no
established duty of care
Haley v London Electricity Board [1965] AC 778
• Who is within the range of the class that the defendant should foresee? Is there such a thing as a
reasonable plaintiff or a normal plaintiff? This becomes pertinent in psychiatric injury cases
• The facts: Defendant put up signs saying that there are manholes and barred pedestrians from
going in there by putting hammaers. Haley was blind and could not see the signs. He fell into the
manhole and became deaf.
• The issue: Did the London Electricity Board owe a duty of care to the plaintiff?
• Outcome/reasoning:
Argument: If the defendants did owe a duty of care, then it is argued that it was the care
was for reasonable plaintiffs, i.e. people with sight. Therefore, did not owe a duty of care
or did not breach duty of care.
However, Donoghue v Stevenson did not adopt any archetypal plaintiff. The plaintiff
required the court to look at each circumstance – what types of persons can I reasonable
foresee to walk the street? Obviously, they have to talk into consideration people who
are visually impaired.
Putting up a sign that a blind person cannot read is thus a breach of duty
• The principle established:
Neighbour principle asks what types of persons are reasonably foreseeable in any
circumstance, and does not adopt an archetypal plaintiff.
a) Public policy considerations which may negative an existence of a duty of care
Shaw Savill & Albion Co v The Commonwealth (1940) 66 CLR 344
• The facts: As a result of a collision with (MAS Adelaide, the plaintiffs ship was damaged. HMAS
Adelaide had been operating without lights on at night.
• The issue: Did the Commonwealth owe a duty of care to the plaintiff? Did the Commonwealth
have immunity, and if they did, how broad is that immunity?
• The outcome/reasoning:
Argument by the Cth: Australia was at war at the time, and as a consequence, they had
immunity from owing a duty of care or being labelled negligent for not turning on their
lights
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Document Summary
Week 7: negligence looking at negligence as a cause of action: duty of care (scope of duty) interests. If there is no recognised form of damage, then the claim will fail: the concept of duty of care and judicial methodologies for establishing a duty of care. Donoghue v stevenson [1932] ac 562: foundation of product law liability and modern law of negligenece, the facts: donoghue"s friend bought her a ginger beer that had an opaque bottle. To our minds, we would think that it is obvious that manufacturers have the liability but during this period, it was not clear whether a manufacturer owed a duty of care to an end consumer. In order to owe a duty to the plaintiff, they must be reasonably foreseeable as a minimum as a class of persons that the defendant ought to have in contemplation. In this case, consumers are reasonably foreseeable class of plaintiff.
