LAWS1203 Study Guide - Final Guide: Ganser Syndrome, Adjustment Disorder, The Employer
A. DUTY OF CARE (legal question)
Case
Facts
Decision
Significance
Donoghue v
Stevenson* 2.2.7C
Establishment of
DoC
Mrs Donoghue went to a cafe with a friend. The
friend brought her a bottle of ginger beer and an
ice cream. The ginger beer came in an opaque
bottle so that the contents could not be seen. Mrs
Donoghue poured half the contents of the bottle
over her ice cream and also drank some from the
bottle. After eating part of the ice cream, she then
poured the remaining contents of the bottle over
the ice cream and a decomposed snail emerged
from the bottle. Mrs Donoghue suffered personal
injury as a result. She commenced a claim against
the manufacturer of the ginger beer.
Her claim was successful.
Manufacturers have a general duty to the entire
consuming public to ensure
that their products do not contain potentially
dangerous defects that cannot be discovered on a
reasonable inspection. The manufacturer was liable.
Explaining the nature and extent of the duty of care,
Lord Atkin said (at 580): “You must take reasonable
care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your
neighbour - persons who are so closely and directly
affected by my act that I ought to have them in [mind]
when I am [considering these] acts or omissions.”
Established Negligence as an area of law and set out
basic requirements for DoC: the duty to take reasonable
care in the process of manufacture so as to avoid
reasonably foreseeable risks of injury to consumers /
users where the consumer has no reasonable
opportunity to inspect the quality or integrity of the
product before consumption / use. The court was very
careful not to simply assert a broad open-ended duty of
care on manufacturers.
Established the ‘neighbour principle’: Lord Atkin said
of this principle (at 508)
Chapman v
Hearse* 2.3.2C
‘Reasonable
Foreseeability’ and
the foreseeable
plaintiff
Mr Chapman (the Appellant) drove negligently
causing an accident. The car he was driving
flipped over and he was thrown into the road
where he lay unconscious. A Dr. Cherry, who was
driving past, stopped his vehicle and went to help
Mr Chapman. While he was attending to the
unconscious Mr Chapman, Dr. Cherry was struck
by a car driven by Mr Hearse (the Respondent)
who was also driving negligently. Dr Cherry died
as a result. Mr Chapman was held partially
responsible for Dr Cherry’s death, and was ordered
to pay money to his estate. Mr Chapman lodged an
appeal, claiming he owed no duty of care to Dr
Cherry, and that the negligent driving by Mr
Hearse had broken the chain of causation.
The Court held that it was reasonably foreseeable that
someone would stop to help Mr Chapman, and that in
doing so it was ‘not unlikely’ that they may
themselves be injured. There was therefore a duty of
care.
Consequence of the same general character. → "It is,
we think, sufficient...to ask whether a consequence of
the same general character as that which followed was
reasonably foreseeable as one not unlikely to follow a
collision between two vehicles on a dark wet night
upon a busy highway."
The precise sequence of events need not be foreseen, it
is sufficient if it appears that injury to a class of persons
of which he was one might reasonably have been
foreseen as a consequence.
Established RF as a general test at the duty stage
RF of harm (that being any kind of harm) to a class of
Ps
Held: 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 to whom the damage could have been foreseen
RF = ‘not improbable’, ‘not unlikely’
Only have to show that general sequence of events is
reasonably foreseeable
Caterson v
Commissioner for
Railways 2.3.7
‘Reasonable
Foreseeability’ and
the foreseeable
plaintiff
Plaintiff jumps off a train when it negligently left
the station with his infant son still on the platform
unattended
HCA found in favour of plaintiff. The test for
reasonable foreseeability is not likely to injure but
rather, not unlikely to occur.
The plaintiff‟s injuries were reasonably foreseeable in
that they were not unlikely to occur – Plaintiff
successful.
Degree of probability/test for reasonable foreseeability:
“not unlikely to occur”, a ‘real risk’
Unforeseeable plaintiff
Bourhill v Young
2.3.14
‘Reasonable
Foreseeability’ and
the foreseeable
plaintiff
The plaintiff heard a motorcyclist being involved
in an accident which resulted in his death. She
suffered a nervous shock and sued the estate of the
negligent motorcyclist for negligence.
Held: No duty of care was owed by the defendant to
the claimant. There was not sufficient proximity
between the claimant and defendant when the incident
occurred. No doubt that the motorcyclist owed a duty
of care to whom he collided with and the other road
users, but not to the plaintiff.
Unforeseeable plaintiff
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Chester v
Waverley Council
2.3.13
‘Reasonable
Foreseeability’ and
the foreseeable
plaintiff
The plaintiff’s young son was drowned in an
excavation in the street which had been left
inadequately fenced by the defendant council and
that had filled with water over a weekend. After
she became aware that her son was missing, the
plaintiff searched unsuccessfully for some hours
for him and was present when the trench was
dragged and the body was brought out by the
police. She suffered a severe mental illness.
The mother's shock falls outside the duty of
Waverley. She was not using the road nor a witness of
the accident. Her shock is not reasonably within the
contemplation of the defendant as a consequence of
the condition of the road.
The trench itself did not cause the shock. Ms. Chester
did not witness the accident. The failure to guard the
trench was but indirectly connected with the shock.
A train of events following an injury almost always
includes consequential suffering. Tort law cannot
completely repair the world at large.
the shock is but remotely connected to the act or
omission of Waverley. No reasonable person would
foresee the shock.
Sydney Water v
Turano* 2.3.10C
‘Reasonable
Foreseeability’ and
the foreseeable
plaintiff
Turano was driving his wife and children along a
road when a tree was blown down on to the car.
Turano was killed and the family members were
injured. The wife brought an action against the
local council on whose land the tree had stood and
against Sydney Water. About 20 years earlier,
Sydney Water had installed a water main in the
vicinity close to a culvert. It was alleged that the
water main had caused water from the culvert to
dam up and spread to the roots of the tree. This
had allowed pathogens to infect the tree and over
time weaken its support.
Sydney Water had no duty of care, and the event was
not reasonably foreseeable. Turano not a ‘neighbour’.
The relevant class of plaintiffs was ‘road users’ but
harm to them was not reasonably foreseeable so no
duty of care. The High Court concluded that no duty
of care was owed by Sydney Water to the plaintiff for
acts that it performed in 1981 because the injury to
road users as a result of the tree's eventual collapse
was not a reasonably foreseeable consequence of the
installation of the water main. Alternatively, in the
absence of control over any risk posed by the tree in
the years after the installation of the water main there
was not a sufficiently close and direct connection
between Sydney Water and Mrs Turano for her to fall
within the "neighbour principle"
Reasonable foreseeability on its own is too broad →
This is why the HCA now uses salient features as well
RF = ‘not reasonably foreseeable consequence’
RF of harm (that being any kind of harm) to a class of
Ps
Sullivan v Moody*
2.2.17C
'Foreseeability is
not enough': salient
features needed
The Community Welfare Act 1972 (SA) required
doctors and social workers to report suspicions of
child sexual abuse. Doctors who examined the
plaintiffs’ children concluded that they had been
sexually abused. They reported the matter and the
plaintiffs (the fathers) were accused of abuse. The
allegations were subsequently withdrawn and the
fathers sued the doctors, social workers and others
involved in the investigation, arguing that they had
had a duty to exercise reasonable care in how they
conducted it.
The Defendants did not owe the fathers a duty of care
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.
Unanimous HCA judgement – very binding
The appellants‟ allege that it was foreseeable that
harm of the kind suffered might result from lack of
care on the part of those investigating into child
sexual abuse. But the fact that it is foreseeable - in the
sense of being a real and not far-fetched possibility –
that a careless act or omission on the part of one
person may cause harm to another does not
necessarily mean the first person is subject to a legal
liability to compensate for the harm that results from
their carelessness.
Private persons’ autonomy is paramount.
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’
Explains why reasonable foreseeability is necessary but
not always enough
D’s duty must be owed to P, not just to some Ps… = Bale v Seltsam and Seltsam v McNeill
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B. BREACH OF DUTY (factual question)
Case/Legislation
Facts
Decision/Illustrations
Significance
The Wagon Mound
(No. 2) 5.3.7
The standard of
care – General
concepts
Plaintiff = owner of the ship parked at the wharf
affected. The ship suffered damage as a result of
the fire.
The defendants are the owners of the vessel
Wagon Mound, which was moored 600 feet from
a wharf. The plaintiffs are owners of ships
docked at the wharf. Due to the defendant’s
negligence, furnace oil was discharged into the
bay causing minor injury to the plaintiff’s ships.
However, the oil was then ignited when molten
metal dropped from the wharf and came into
contact with cotton waste floating on the water’s
surface. The fire that resulted seriously damaged
the wharf and two of the plaintiff’s ships.
Held: A reasonable man would have realised or foreseen
and prevented the risk. The defendants were in breach of
duty. Although the likelihood of harm was low, the
seriousness of harm was high and it would have cost
nothing to prevent it.
The Court held that something will be reasonably
foreseeable if a reasonable man in the defendant’s position
would recognise it as a real possibility and not brush it
aside as too far-fetched. A reasonable person in the ship’s
chief engineer’s position should have known that there was
a real risk that the oil would catch fire and should have
taken steps to prevent that happening. The appellants were
liable.
The meaning of ‘reasonable foreseeability’
If a reasonable man can foresee and prevent the risk,
then he is liable for the foreseeable damages.
The defendants were in breach of duty. Although the
likelihood of harm was low, the seriousness of harm
was high and it would have cost nothing to prevent
it.
Wyong Shire
Council v Shirt*
3.1.16C; 3.1.10;
3.1.19
The standard of
care:
• General
concepts
• Reasonable
foreseeability
of risk
Reasonable
response to risk:
‘the calculus’
A water-ski club/an employee had placed
alongside the channel signs bearing the words
‘Deep Water’. The plaintiff claimed that he was
misled by the signs into believing that the lake
generally was deep, whereas it was in fact
shallow, and that he had known the truth he
would not have skied where he did. When he fell
off the skis in the shallow water, he struck his
head on the bottom and became a quadriplegic.
He sued three defendants, but the trial judge held
that the only one that should have owed him a
duty of care was the local council. (The Court of
Appeal held that the water-ski club should have
also been held to be under a duty of care and the
question of breach should have been allowed to
go to the jury). The jury found a breach of the
council’s duty of care. The council appealed to
the Court of Appeal in NSW, which, by a
majority, dismissed the appeal. A further appeal
was brought to the High Court.
Mason J’s test: the risk is of injury is remote but
foreseeable – not sufficient – probability, serious and other
factors must be established. “A reasonable man in the
[employees position] would have foreseen that the
message conveyed on the sign placed in the position which
it was fixed might lead to a risk of injury…”.
The calculus → If the former two (probability and serious)
‘outweigh’ the latter two (cost and difficulty of taking
precautions and social utility), the defendant will usually
be expected to guard against the occurrence of the risk.
Not difficult to adjust signs already installed.
It was held that it was reasonably foreseeable that the
councils’ signage would cause someone to have the
mistaken belief.
The “Shirt calculus”: Mason J: “The perception of the
reasonable man’s response [to the risk of injury] calls for
a consideration of the magnitude of the risk and the degree
of the probability of its occurrence, along with the
expense, difficulty and inconvenience of taking alleviating
action and any other conflicting responsibilities which the
defendant may have”.
Two-part breach test (Shirt formula):
1. Reasonable foreseeability: would a
reasonable person in D’s position have
foreseen risk of injury to P / P’s class? =
s5D(1) from 2002
a. A ‘foreseeable’ risk = one not far-
fetched or fanciful
2. Reasonable response to foreseeable risk:
what would a reasonable person have done
about this foreseeable risk, given its
magnitude [seriousness], degree of
probability [likelihood], the expense,
difficulty or inconvenience of avoiding it,
and noting any conflicting responsibilities
on D? = s5D(2) from 2002
Foreseeability in this context means that the risk is
not far-fetched or fanciful.
The existence of foreseeability alone does not
dispose of the question of duty – the other factors
must be considered.
Illustrative cases
('council cases')
Swain v Waverley Council 3.3.9C
• Plaintiff was swimming at Bondi beach when he dived into a wave, struck a sand bar and became a
quadriplegic. He sued the local council, alleging that it was negligent in (a) failing to warn him of the
danger; (b) placing the flags between which swimmers were instructed to swim in such a position that
the sand bar constituted a danger.
• A jury found in the plaintiff’s favour, reducing the damages for contributory negligence. The verdict
was set aside by the NSW Court of Appeal, which unanimously held that there was no evidence on
which a reasonable jury could find that the council was negligent in relation to (a) and by a majority
After Shirt
Civil Wrongs Act (2002) – action in negligence
harder for plaintiff, particularly recreational
activities
DoC, uniquely and specially conditioned to control
the risks
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Document Summary
Mrs donoghue went to a cafe with a friend. The friend brought her a bottle of ginger beer and an ice cream. The ginger beer came in an opaque bottle so that the contents could not be seen. Donoghue poured half the contents of the bottle over her ice cream and also drank some from the bottle. After eating part of the ice cream, she then poured the remaining contents of the bottle over the ice cream and a decomposed snail emerged from the bottle. Mrs donoghue suffered personal injury as a result. She commenced a claim against the manufacturer of the ginger beer. Mr chapman (the appellant) drove negligently causing an accident. The car he was driving flipped over and he was thrown into the road where he lay unconscious. A dr. cherry, who was driving past, stopped his vehicle and went to help.
