LAWS1203 Final: Case guide – TORTS final
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
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
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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.
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
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
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.
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present when the trench
was dragged and the
body was brought out by
the police. She suffered
a severe mental illness.
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
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
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
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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. 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. The car he was driving flipped over and he was thrown into the road where he lay unconscious. Cherry, who was driving past, stopped his vehicle and went to help mr. While he was attending to the unconscious mr. Chapman, dr. cherry was struck by a car.
