BLAW1004 Final: Module 9 - Liability in Tort Law - Negligence
Module 9 - Liability in Tort Law - Negligence
Duty of care
To establish a 'duty of care' a
plaintiff must show two things
That harm of the kind they suffered was
foreseeable (that is, was a real possibility
and not far-fetched or fanciful)
That, in the circumstances, it was not
unreasonable to impose a duty on the
defendant/s to take care not to do anything
that would cause that harm
Reasonable foreseeability of harm: plaintiff must show that they belonged to the
class of people whom the defendant should have regarded as being 'at risk'
The precise loss, damage or injury that they suffered need not have been
reasonably foreseeable - just that they could have suffered some loss,
damage or injury as a result of the defendants acts or omissions
The neighbour principle:
Lord Atkin in Donoghue v Stevenson, 'a neighbour is a person
who is so closely and directly affected by my act that I ought
reasonably to have them in contemplation... when I am directing
my mind to the acts or omissions which are called into question.'
To who is a duty of care owed?
Determine whether there was a
reasonably foreseeable risk of injury
Sutherland Shire
Council v Heyman
'Reasonable foreseeability of loss or injury to another is an indication
and, in the more settled areas of the law of negligence... commonly an
adequate indication that the requirement... is satisfied.'
Determine whether the case is closely
analogous to other cases in which a duty of
care has already been established
If not, look to the 'salient features' of the case
to determine whether they reveal a sufficiently
close 'neighbour' relationship to warrant
finding a duty of care
Determine whether there are policy or other
considerations that mitigate against finding
that a duty of care exists
When trying to prove a negligent misstatement, the
plaintiff, in addition to establishing that a general duty of
care arose in the situation, must also show that:
The maker of the statement
'assumed responsibility' for
its accuracy, and
The plaintiff
'reasonably relied' on
it
Shaddock and Associates v Parramatta City Council
Breach of the
duty of care
A person does not breach a duty to take
precautions against a risk of harm unless
The risk was foreseeable (that is, it is a risk of which the
person knew or ought reasonably have known); and
The risk was not insignificant; and
In the circumstances, a reasonable person
would have taken the precautions
There actually has to be a breach of care in what a
reasonable person would be expected to exercise
To prove a breach of duty, the
plaintiff must prove two things:
That he or she was owed a
particular 'standard of care'; and
That the defendant failed to meet that
required standard - or 'failed to take the
appropriate precautions'
The standard of care expected is that
which the reasonable person would
exercise in the circumstances
Romeo v Conservation
Commission of the NT
In deciding whether a reasonable person would have
taken precautions against a risk of harm, the court is to
consider the following (among other relevant things)
The likelihood of the harm occurring if care were not taken
The likely seriousness of the harm
The burden of taking precautions to avoid the risk of harm
Whether the risk of harm was justified in the circumstances
Loss/Injury/Damage
A plaintiff must prove three things
That the loss, damage or injury they suffered is recognised by the law
That the loss, damage or injury was caused by the defendant's negligence
That the loss, damage or injury is not too 'remote' in law to be recoverable
There are at least four instances where
the law will not recognise damage
Where the damage suffered is the termination of some
benefit flowing from criminal or fraudulent activity
Where the damage is too vague to be legally recognised
Where the plaintiff cannot prove that any loss,
damage or injury was suffered at all
Where the plaintiff has experienced grief or sorrow.
Cf psychiatric harm suffered
The court applies the 'but for' test - but for the defendant's act, would
the harm to the plaintiff have occurred? If answer is 'no' then the
defendant can be said to have caused the injury/harm to the plaintiff
The Civil Liability Acts in all jurisdictions (except the NT) now require proof
that (with slight differences in wording) 'the breach of duty was a necessary
condition of occurrence of the harm' (what they call 'factual causation')
Adeels Palace v Moubarak
A defendant is only liable for reasonably foreseeable
damage. Similarly, Civil Law legislation requires some
connection between the breach and the harm caused
The 'reasonable foreseeability' of harm Overseas Tankship v Miller Steamship
Defences to Negligence There are two defences to a
claim for negligence
Contributory negligence
If a plaintiff is in any way responsible for his or her
own loss, damage or injury, the damages awarded will
be reduced proportionately to recognise the shared
fault: Civil Law legislation
A defendant can prove
contributory negligence by
showing that the plaintiff
Breached a duty owed
to the defendant
Failed to exercise reasonable care
for his or her own safety
Note: under the civil liability legislation
intoxication is considered to be contributory
negligence and reduces a claim
Voluntary assumption of risk
If the plaintiff freely and voluntarily assumed the
risk that caused the injury they should not be
allowed to blame someone else
A total defence
Rogers v Whitaker (The
Duty of Care, Breach of the duty of care)
Facts
While still a child, Whitaker suffered an
injury that left her blind in one eye
Nonetheless she had a normal life until, at the age
of 40, she consulted Rogers, an eye surgeon
He advice her that an operation on her blind eye would
improve its appearance and probably restore significant sight
He did not warn her of any risks associated with the operation
In the result, the operation failed to
improve the sight in Whitaker's blind eye
The operation also caused her to develop a rare condition
that eventually caused blindness in her other eye
This condition, as well as being rare,
was not always so catastrophic in effect
Issue Had the defendant, a specialist ophthalmic surgeon,
breached the duty of care that he owed his patient?
Decision
As a specialist ophthalmic surgeon, the defendant's duty of
care required him to warn his patient of the possible risks
involved in treatment, which he had failed to do
Perre v Apand (Harm)
Facts
Apand trialled seed potatoes infected with
bacterial wilt on properties in South Australia
The Perres' property was not affected, but they could not sell their potatoes
into Western Australia (where prices were higher) because WA law prohibited
the importation of potatoes grown on or within 20km of land affected by wilt
They sued
Issue Did Apand owe the Perres a duty of care?
Decision
The harm the Perres suffered was
reasonably foreseeable, and Apand
owed them a duty of care
They were particularly vulnerable (because they had not been in a position to appreciate the risk - or to
protect themselves against it), and the damage flowed directly from activities within Apand's control
Further, because there were a limited number of growers affected by Apand's negligence (those farming with 20km
of the trial property), a finding that Apand owed to duty of care did not expose it to an 'indeterminate liability'
Donoghue v Stevenson
(Duty of Care)
Facts
Donoghue went to a cafe in
Paisley with a friend
The friend bought a bottle of ginger beer
and an ice cream for Donoghue
Donoghue poured some of the ginger beer
over the ice cream and ate it
Then she poured the rest of the
ginger beer into a glass
Donoghue then noticed that the
drink contained the remains of a
decomposed snail
She claimed that she suffered
severe shock and became ill with
gastroenteritis as a result
She sued Stevenson, the manufacturer of the ginger beer, for damages
in negligence on the basis that he had supplied contaminated food
that had caused harm to her as the consumer of that food
Issue In the circumstances, did Stevenson
owe Donoghue a duty of care?
Decision The House of Lords held that Stevenson
owed Donoghue a duty of care
Shaddock & Associates v Parramatta City Council
(Duty of Care, Liability for Misstatements Causing
Purely Economic Harm)
Facts
Shaddock & Associates, a property
development company, wanted to buy
some land and redevelop it
The company's solicitor telephone the Parramatta City
Council and asked if there were any road widening
proposals that would affect the land
He was told
there were not
The solicitor also requested and was sent a
certificate from could, which indicated there were no
proposals to widen adjacent roads
Shaddock then bought the land, but the information given on
the phone and in the certificate was wrong; the council had an
existing proposal to acquire a third of the land Shaddock has
just bought, to widen a road
Shaddock suffered a financial loss as a result
of relying in the wrong information and sued
the council in Negligence
Issue
Did the council owe Shaddock a duty of
care when providing the information to it?
Decision
The High Court held that no duty of care arose from
advice given over the telephone, because that
advice was essentially informal
However, a duty of care arose from the advice
given in the written certificate and the council was
accordingly liable for the loss
Romeo v Conservation Commission of NT
(Breach of Duty of Care, Assessing Reasonable
Care, Factors, Likelihood of Harm)
Facts
Romeo, a 16-year old girl, went with friends to a
nature reserve (the Dripstone Cliffs) in Darwin
At some point in the night, after drinking some rum she and
a friend wandered near the unfenced edge of the cliffs
Romeo fell from the top of the cliffs to the beach and was badly injured
She sued the Conservation, the government authority responsible for the reserve
IssueHad the commission breached a duty of care owed to Romeo?
Decision
The commission owed a duty of care to Romeo. However, the High Court held
that, in the circumstances, the risk of harm was so unlikely that by failing to
take action to avoid it, the commission had not breached its duty of care
Adeels Palace v Moubarak (Tort; Negligence; elements of
liability; causation of harm; the 'but for' test)
Facts
Adeels Palace operated a restaurant,
with a bar and dance floor, in Sydney
On 31 December 2002, the restaurant was
full of people celebrating the New Year
At some stage an argument began on the dance floor,
which quickly escalated into a widespread brawl
One person who was involved in the flight
was struck in the face and began bleeding
He left the restaurant, returning a while later with a gun
On re-entering the restaurant, he shot two people, Mr Bou
Najem in the leg and Mr Moubarak in the stomach
The gunman than left the restaurant
Bou Najem and Moubarak sued the restaurant in negligence
They argued that, by not having security guards at the door, the
restaurant had breached a duty of care owed to its customers, and
that this breach had resulted in their being shot by the gunman
Issue
Was the absence of security guards at the restaurant a
breach of a duty of care owed to the plaintiffs, and was
this breach the cause of the harm they suffered?
Decision
The court held that the restaurant owed each plaintiff a duty
to take reasonable care to prevent injury to patrons from the
violent, quarrelsome or disorderly conduct of other persons
However, the court held that the absence of security guards,
even if it amounted to a breach of this duty of care, was not
the cause of the harm suffered by the plaintiffs
Reason
The court took the view that security personnel could not have
stopped the re-entry to the restaurant of a man armed with a gun
who was ready and willing to use the weapon to get revenge.
Overseas Tankship v
Miller Steamship
Facts
While refuelling a ship, employees of the
Overseas Tankship negligently spilt fuel
oil into Sydney Harbour
The oil spread, some of it to
thew hard where the plaintiff
was refitting a ship
However, as it was believed by all concerned
that fuel oil lying on water could not ignite,
the plaintiff continued to work on the ship,
including welding work
An unusual series of
events then occurred
A piece of molten metal fell onto a piece of floating
cotton waste, which caught fire and ignited the oil
around the ship and dock
Extensive damage
was caused
Issue
Was there a sufficient connection between the
defendant's conduct and the harm that had occurred,
such that the defendant should be liable in Negligence?
Decision
The trial court held the defendant liable because there was a clear
casual link between the negligent act of spilling the fuel oil and the
damage caused to the ship and the dock when that oil ignited
On appeal, the Privy Council held that the risk of harm
caused by oil fouling the dock was reasonably foreseeable
but the risk of harm caused by the oil burning was not
Reason
Although a casual link between the events was not clear,
that was not sufficient in itself to hold the defendant liable
The true principle is that a defendant is liable for harm caused by their
negligent conduct, but only for harm of a kind that was reasonably foreseeable
The Tort of Negligence
Negligence
Failure to take reasonable care to prevent
loss, injury or damage to others who
reasonably foreseeably would be injured
had that care not been taken
Has its foundation in the common law, but these
principles have been modified by legislation (The
State Civil Liability Acts)
Types of Conduct
in Negligence
Negligence occurs by conduct
The form that the conduct takes will
determine what rules are applied to
establish negligence
Categories of
conduct include:
A positive act
A failure to act (omission)
Making a statement or giving
advice, or failing to do so
Rogers v Whitaker
Types of Harm in
Negligence
The type of harm that the plaintiff suffers will be
relevant, not only in establishing negligence, but also
in determining the adequate amount of compensation
Categories of
harm include:
Physical injury to the person
Physical damage to property
Purely economic loss
Perre v Apand
Torts Defined
Civil wrongs
Conduct that is twisted or crooked
causing loss or damage to another
Acts or omissions by a tortfeasor that are not authorised
by law and infringe another's private or public rights
The legal system does not penalise all conduct that
causes a loss. Losses from lawful conduct that is not
malicious are not compensable
Some conduct is actionable per se i.e. the law regards it as so bad that a person
whose rights have been breached can sue even though there has been no loss
or damage and the tortfeasor was not aware of the infringement of rights
Torts Contracted
Tort is a civil wrong where the victim is an individual
Crime is a wrong against the whole community
Tort differ from contrast in that
contractual rights arise from agreement
The compensatory objective for torts is
also different to that of contract
In torts, the aim is to put the plaintiff in the position they
would have been in had the tort not been committed
Elements required for the tort of negligence
A duty of care owed by the tortfeasor
A breach of that duty of care
Loss, damage or injury as a result of that breach
The Civil Liability Acts
State Legislation
A substantial reform in an attempt to establish
uniformity throughout Australia, though not
every state is exactly the same
They modify the common law principles that govern how negligence
can be proven and restrict, to an extent, the considerations that
courts can take into account when determining whether the
elements of 'duty', 'breach' and 'damage' have been established
They limit or, in some cases, abolish a plaintiff's right to
recover damages - or cap the damages that can be recovered
Common Features
Specifying the matters that courts can take
into account when determining whether there
has been a breach of duty
Limiting claims for injuries sustained in the course of either
criminal activities or obviously dangerous recreational activities,
or where the use of drugs or alcohol is a contributing factor
Protecting 'good samaritans', public authorities and volunteers
Capping certain damages and abolishing others (in particular, abolishing
exemplary, punitive and aggravated damages for personal injury)
Removing the admissibility of 'saying sorry' in subsequent court
actions (so it cannot be treated as an admission of liability)
Remedies in Tort Law
Damages are awarded to
compensate for harm suffered
The objective is to put the injured party in
the position they would have been in but for
the commission of the tort
Cf: the measure
on contract
The Civil Liability Acts put limits on the
amount that can be claimed
Statutory compensation schemes (e.g.
Worker's Compensation) may provide an
alternative source of compensation
Injunctions are appropriate when the plaintiff
wants the defendant to desist from conduct
which threatens to cause damage
Document Summary
Council and asked if there were any road widening proposals that would affect the land. Shaddock & associates, a property development company, wanted to buy some land and redevelop it. That harm of the kind they suffered was foreseeable (that is, was a real possibility and not far-fetched or fanciful) That, in the circumstances, it was not unreasonable to impose a duty on the defendant/s to take care not to do anything that would cause that harm. The solicitor also requested and was sent a certificate from could, which indicated there were no proposals to widen adjacent roads. To establish a "duty of care" a plaintiff must show two things. Shaddock & associates v parramatta city council (duty of care, liability for misstatements causing. Determine whether there was a reasonably foreseeable risk of injury.
