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LAWS1012 > 10. DOC (Negligence) > Flashcards

10. DOC (Negligence) Flashcards

1
Q

what is a DOC?

A

legal obligation to take RC to avoid unreasonable risk of damage to P.
-It’s a Q of law if duty exists

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2
Q

What are the established categories of DOC?

A
  1. Medical professionals to patients
  2. Manufacturer to consumer
  3. School to pupils
  4. Employer-employee
  5. Occupier- entrant
  6. Rescuers
  7. Drivers to pedestrians & passengers
  8. Parents & children
  9. Supervisor of person who should be under the control & P who is injured by this person
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3
Q
  1. Manufacturer to Consumer
A

Donoghue v Stevensons

Grant v Australian Knitting Mills

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4
Q
  1. School to pupils
A

Cth v Introvigne

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5
Q

5.Occupier- entrant (types)

A

occupier- lawful entrants (Australian Safeway Stores Pty Ltd v Zaluzna)
occupier- trespasser (Hackshaw v Shaw)

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6
Q
  1. Employer-employee
A

don’t need case authority

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7
Q

5.Occupier- entrant (types)

A

occupier- licensee (Voli v Inglewood Shire Council)
occupier- lawful entrants (Australian Safeway Stores Pty Ltd v Zaluzna)
occupier- trespasser (Hackshaw v Shaw)

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8
Q

occupier

A

one who has control over premises

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9
Q

Does an occupier of the land does owe P a DOC if the injury was caused by a 3rd party which is out of the occupier’s control?

A

NO. (criminal act) Modbury Triangle Shopping Centre v Anzil

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10
Q
  1. Driver to Passenger
A

Miller v Miller

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11
Q
  1. Parents to children
A

(only when the child’s conduct is under their control): Smith v Leurs

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12
Q
  1. Supervisor of the person who should be under the control and the plaintiff who was injured by this ought- to-be controlled person, however, must prove the damage is foreseeable
A

Home Office v Dorset Yacht
BUT,
———->• If the damage is not foreseeable, or cannot be decided, no action against the supervisor: NSW v Godfrey

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13
Q
  1. Duty to not endanger oneself inviting rescue
A

Chapman v Hearse

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14
Q
  1. Rescuers
A

The person who creates the danger and the rescuer: (Wagner v International Railway Co.)
Duty not to endanger 3rd parties inviting rescue
(Haynes v Harwood )

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15
Q

Smith v Leurs

A

A parent is not VL for the torts of their child but has a duty to supervise/control the child. Whether this duty has been breached depends on circumstances (incl. Age of child)

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16
Q

Duties regarding supervision & control of P & 3rd parties

A
  1. Parents & Children
  2. Childcare centre/teacher to children
  3. Prison authority & juvenile inmates
  4. School & pupils
  5. Shopping centre supervising 3rd parties to employee of tenant
  6. Social host occupier & guests
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17
Q

3rd party duties:

5. Shopping centre supervising 3rd parties to employee of tenant

A

Modbury Triangle Shopping Centre v Anzil
Whether an occupier of premises owes a DOC to a person harmed by a 3rd party, ie a criminal while on the occupier’s premises depends on factors such as the level control over the harmful activity, any assumption of responsibility by the occupier & reasonable reliance by the P.

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18
Q

What must be noted about school & pupils DOC (Cth v Introvigne)?

A

(note Children & Young Persons Care & Protection Act 1998, mandatory reporting) But this doesn’t automatically determine the CL duty for children in other schools, however it supports the imposition of a CL duty.

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19
Q

3rd party duties: 6. Social host occupier & guests

A

Parissis v Bourke
Householders were not in any special relationship with the guest and there was no established relationship of social host and guest
BUT RF is crucial in deciding whether there is a DOC in terms of P’s supervisory power over the 3rd party who creates the danger.

20
Q

Reasonable foreseeability:

A

Whether it was reasonably foreseeable that the plaintiff, as a member of a class of persons could be injured by the D’s negligent conduct.

21
Q

How do you establish a DOC in a novel case?

A

If there’s no established DOC we want to increment/analogise with established DOCs
—–> If completely different facts, Salient features test must be applied
• RF 1st step, always central
• Proximity (btw P & D) there too (secondarily)
• Rest are control mechanisms on reasonable foreseeability – Caltex (Allsopp)

22
Q

what is the proximity approach that has now been incorporated into the test for est a DOC

A

Jaensch v Coffey
The risk of injury to the plaintiff should be reasonably foreseeable & that there exist btw. The D & P a relationship of ‘proximity’, whether physical/circumstantial

23
Q

What case est the salient features approach?

A

Caltex Refineries (Qld) Pty Ltd v Stavar

24
Q

How was the salient features approach (current approach described in Caltex Refineries (Qld) Pty Ltd v Stavar?

A
  1. Examine RF of potential victims of N
  2. Apply salient factors as a control measure for foreseeability, with proximity still included but also taking note of other factors.
25
Q

When should salient features be analysed?

A

a series of salient features which should be analysed in instances where there is no clear/established category of duty, to examine how they affect the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.

26
Q

Cth v Introvigne

A

There is a duty imposed on school authorities to supervise children especially younger children as they are more immature and prone to ‘mischief’

27
Q

What a public policy considerations that could negative a DOC?

A

a) serious joint illegal enterprises
b) police investigations of crime
c) police response to emergency call
d) conflicting responsibilities- legal coherence & consistency
e) active war time operations

28
Q

a) serious joint illegal enterprises

A

Miller v Miller - no DOC when a joint illegal enterprise, unless they take all reasonable steps to withdraw from enterprise. There’s no protection for a criminal’s offence

29
Q

b) police investigations of crime

A

Hill v Chief Constable of West Yorkshire

30
Q

b) police investigations of crime - Hill v Chief Constable of West Yorkshire

A

The police don’t owe a DOC to members of the public, including potential victims of a serial offender, when discharging its functions of investigating & suppressing crime.
Claims cannot be brought for operational damages

31
Q

c) POLICE RESPONSE TO EMERGENCY CALL, Michael v Chief Constable of South Wales Police

A

applied position in Hill v Chief Constable of West Yorkshire.
The police did not owe a DOC to a specific member of the public where they were aware/ought reasonably to have been aware, of a threat to her life or physical safety. Nor did they owe such a duty where a member of the public had given them apparently credible evidence that an identifiable third party presented a specific and imminent threat to her life or physical safety.

32
Q

Can police still be liable for ordinary principles of N?

A

YES Cf Robinson v Chief Constable of West Yorkshire (bystander injured by police operations)

33
Q

Sullivan v Moody; Thompson v Connon (2001)

A

conflicting responsibilities, legal coherence.
considering whether the existence of a DOC would impair the ‘coherence of the law’, State community welfare officers & medical practitioners carrying out statutory functions of investigating allegations of child sexual abuse owed no DOC to the child’s parents in respect of the accuracy of the investigation.

In this case, there’d been 2 conflicting DOCs under the law, but the statutory DOC to the children was superior.

34
Q

What is a hard category when determining a DOC?

A

Psychiatric injury

35
Q

What is required to est a DOC regarding psychiatric injury?

A
  1. RF of psychiatric injury (‘Normal fortitude’ of the plaintiff is relevant to est. this)
  2. At CL, there must be a relationship btw the parties, such that the D should have had the P in contemplation as a person closely & directly affected by the D’s conduct

No requirement of ‘sudden shock/direct perception’ through sight/hearing by the P of a distressing phenomenon/its immediate aftermath.

36
Q

e) active wartime operations

A

Shaw Savill & Albion Co v The Commonwealth ,

No DOC owed by Crown in war.

37
Q

what case must be considered in light of the CLA regarding psychiatric injury?

A

Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) {This is the modern approach}

38
Q

Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002)

A

Instead of having control mechanisms, the principles of N were instead applied to determine the existence of a duty of care in respect of negligently inflicted psychiatric injury (nervous shock).

39
Q

Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) - outlines type of DOC

A

DOC in respect of psychiatric injury requires RF on the part of a person in the position of the defendant of injury of that kind to a person in the position of the P

40
Q

What did Tame highlight

A

the absence of normal fortitude doesn’t preclude the existence of a DOC but is relevant to whether the psychiatric injury is RF

41
Q

3rd parties DOC:

2. Childcare centre/teacher to children

A

Carmarthenshire CC v Lewis

a teacher has the same DOC of a careful parent

42
Q

How to est. a claim for psychiatric injury

A
  1. Essentially just apply CLA s30-32 making distinction btw pure & consequential mental harm
    - –> must Show DOC not to negligently inflict psychiatric injury &
    - –> RF- D ought to have seen that person of normal fortitude in the circumstance would’ve suffered recognised injury
43
Q

Where did test of foreseeability for whether there’s a DOC to not cause mental harm arise from

A

Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002)

44
Q

In what case did the DOC as outlined in s32 of CLA extend to enable rescuers to claim for mental harm?

A

Wicks v State Rail Authority.

It also satisfied s30(2) that a witness at a scene was a valid category of persons suffering nervous shock

45
Q

what did the case of Hunter & New England Local Health District v McKenna highlight?

A

IN terms of conflicting statutory duties, whether CL DOC owed by staff to protect from harm caused by mentally ill patients, statutory duties must be considered. DOC related to mental health patients must be flexible to allow for job efficiency

LAWS1012 (7 decks)

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