MLL213 Study Guide - Final Guide: Personal Injury, Wrongful Birth, Chief Constable

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Topic 5 Negligence and Duty of Care
TORT OF NEGLIGENCE
DAMAGE:
P must have suffered a recognisable form of damage
- Personal injury
- Psychiatric condition
- Property damage
- Economic loss
Emotions like stress, anxiety, fear or inconvenience are not compensable forms of damage.
DUTY OF CARE:
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REQUIREMENTS:
- Reasonable foreseeability of the plaintiff as a member of a class of persons at risk of
eig haed  the defedats atiities. A speial elatioship etween the
parties. This etails a ealuatio of aious otol fatos o the saliet featues
of the relationship ie. Evaluation of factors for and against imposition of liability.
- Categories
Donoghue v Stevenson (1932):
Lord Atkin recognised a generalised duty of care, expressed as the eighou piiple.
The rule that you are to love your neighbour becomes in law, you must not injure your
neighbour; and the laes question, Who is my neighbour? Receives a restricted reply.
You must take reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The
answer seems to be persons who are so closely and directly affected by my act that I
ought reasonably to have them in contemplation as being so affected when I am
directing my mind to the acts or omissions which are called in uestio.
Reasonable care must be taken to avoid acts or omissions that you can reasonably
foresee will injure your eighou.
A eighou is a person who is so closely and directly affected by my act that I ought
reasonably to have them in contemplation when engaging in that act.
Sullivan v Moody:
Liability would be incompatible with statutory regime imposing duty to investigate
Proper and effective investigations would be impaired, as would result in defensive
practices. Best interests of child inherently likely to conflict with interests of parent.
Liability also incompatible with other areas of the common law: interferes with settled
principles of defamation law.
Indeterminacy of claim large range of potential suspects.
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Reasonable Foreseeability’
Needs to be shown in ALL cases of negligence
In established categories of duty of care, this of itself will determine whether there is a duty
of care
Could D reasonably foresee that negligent performance of the relevant activity would create
a risk of injury to P or to a class of persons including P?
The precise sequence of events does not have to be foreseen.
cf:
SALIENT FEATURES:
Where:
a. the case is not in an established category
b. scope of duty of care is in issue, or
c. policy considerations arise, then
courts use other factors/salient features to determine duty question eg:
- Psychiatric injury
- Injury by omission
- Cases where public policy immunity applies eg. advocate immunity for work connect
to judicial proceedings
- Economic loss
- Landlords liability
- Injury by independent contractor
PROXIMITY:
Chapman v Hearse:
D(c) caused a car crash by driving negligently. Dr tried to help but P killed him by driving
negligently also. D argued no duty of care to Dr.
Held that it was not necessary for the exact sequence of events to be foreseeable. As
such, P was a class of persons that the damage could have been foreseen.
Palsgraf v Long Island RR Co:
Man was helped getting on train but parcel was accidentally knocked out of hands. It was
fire works and the force of the blast knocked down Palsgraf. Did the workers duty of care
extend to P?
No, it was negligence but not a wrongful tort.
Bale v Seltsam Pty Ltd (1996):
Ps husad eposed to asestos ad P otated disease. Bought atio of egligee.
D did not owe a duty of care to unforeseeable plaintiff.
Jones v Southern Grampians Shire Council (2012):
Company was found liable for negligence towards a wife. They did not adequately
educate itself of the dangers of exposure to asbestos.
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Document Summary

P must have suffered a recognisable form of damage. Emotions like stress, anxiety, fear or inconvenience are not compensable forms of damage. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Reasonable foreseeability of the plaintiff as a member of a class of persons at risk of (cid:271)ei(cid:374)g ha(cid:396)(cid:373)ed (cid:271)(cid:455) the defe(cid:374)da(cid:374)t(cid:859)s a(cid:272)ti(cid:448)ities. This e(cid:374)tails a(cid:374) e(cid:448)aluatio(cid:374) of (cid:448)a(cid:396)ious (cid:858)(cid:272)o(cid:374)t(cid:396)ol fa(cid:272)to(cid:396)s(cid:859) o(cid:396) the (cid:858)salie(cid:374)t featu(cid:396)es(cid:859) of the relationship ie. evaluation of factors for and against imposition of liability. Liability would be incompatible with statutory regime imposing duty to investigate: proper and effective investigations would be impaired, as would result in defensive practices. Best interests of child inherently likely to conflict with interests of parent. Liability also incompatible with other areas of the common law: interferes with settled principles of defamation law. Indeterminacy of claim large range of potential suspects.