1A. Duty of Care - General

Question 1

To establish a duty of care, the test is one of reasonable foreseeability.

Answer 1

(Donohue v Stephenson [1932] AC 562).

Question 2

A defendant will owe a duty of care to a plaintiff where it is reasonably foreseeable that his act or omission act might harm the plaintiff.

Answer 2

(Donohue v Stephenson [1932] AC 562).

Question 3

person who closely and directly affected by my act that I ought reasonable to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question

Answer 3

(Donohue v Stephenson [1932] AC 562)

Question 4

Donohue v Stephenson [1932] AC 562 is about:

Answer 4

A Snail in the Bottle

Question 5

where a manufacturer knows that a consumer may be injured if the manufacturer does not take reasonable care, the manufacturer owes a duty to the consumer to take that reasonable care. It continues to be cited as an authority in legal cases

Answer 5

Grant v Australian Knitting Mills [1936] AC 85 Privy Council

Question 6

the article should reach the consumer or user subject to the same defect as it had when it left the manufacturer

Answer 6

Grant v Australian Knitting Mills [1936] AC 85 Privy Council

Question 7

The narrow approach of duty of care:

• (1) manufacturers of goods
• (2) the presence of deleterious chemicals could not be detected by any examination that could reasonably be made by the consumer, and
• (3) the risk is known to the manufacturer and unknown to the consumer

Answer 7

Grant v Australian Knitting Mills [1936] AC 85 Privy Council

Question 8

There is a duty of affirmative action (duty of act), that is a duty to exercise reasonable care when there is a fire on his land not started or continued by him, of which he knowns or ought to have known. The reasonable care is to render it harmless or its dangers to his neighbours diminished

Answer 8

Hargrave v Goldman [1963] HCA 56

Question 9

Neighbour, your tree is on fire. Maybe you should put it out? Case?

Answer 9

Hargrave v Goldman [1963] HCA 56

Question 10

A defendant is liable for the naturally occurring danger that arose on his land as he was aware of the danger and failed, by omission, to act with reasonable care to remove the hazard

Answer 10

Hargrave v Goldman [1963] HCA 56

Question 11

• Reasonable Foreseeablity does not mean exact/precise consequence probability – rather consequence of the same general character or if it appears the injury to a class of persons of which he was one might reasonably have been foreseen as a consequence

Answer 11

(Chapman v Hearse (1961) 106 CLR 112 – HCA)(Window Eject/Dr Gets Ran Over Case)

Question 12

Risk is reasonablty foreseeable if it was “not fanciful or farfetched”.

Answer 12

• (Wyong Shire Council v Shirt (1980) 146 CLR 40)

Question 13

D may not be liable for people failing to take reasonable care for their own safety as the extent of duty of care by D was exercising reasonable care for users exercising reasonable care for their own safety.

Answer 13

RTA v Dederer (2007) 234 CLR

Question 14

If the intervening act was RF as a result of the original act, it does not cut off liability

Answer 14

Chapman v Hearse

Question 15

A series of dust disease cases to be unforeseen consequences given the state of scientific knowledge at the time P was exposed to the risk. P cannot recover damages as they are an ‘unforeseeable P’

Answer 15

• (Palsgraf v Long Island RR Co 248 NY 339) (1928) (US).

Question 16

Foreseeable risks can change according to the circumstances of time

Answer 16

• (Bale v Seltsam PL [1996] QCA) (Asbestos Wife Case)

Question 17

Children may not be liable in negligence as some children, depending on the circumstance and age, not be expected to foresee that their act could injure another.

Answer 17

• (McHale v Watson (1966) 115 CLR 199) (Dart in the Child’s Eye Case)

Question 18

Parents are liable of the wrong of their children if:

• 1. Child was acting as their agent
• 2. Children was acting with parents’ authority
• 3. Parents not exercising proper control or supervision.

Answer 18

• (McHale v Watson (1966) 115 CLR 199) (Dart in the Child’s Eye Case)

Question 19

There is no duty of care or duty to rescue another person unless they have created the risk or endangered the person by their own actions.

• However, duty of care will arise if there was duty of supervision or put the person in the risk.

Answer 19

(Stovin v Wise) [1996] AC 928)

Question 20

Good Samaritan – The Good Samaritan is generally protected from liability in situations, unless he caused the situation or did not exercise reasonable care due to intoxication.

Answer 20

(CLA ss 56-57)

Question 21

Statute that provides that the interests of a child is paramount, and the specific responsibilities of professionals to investigate abuse, there can be no DOC to others with conflicting legal duties.

Answer 21

• (Sullivan v Moody [2001] HCA 59) (Dr Father Children Abuse Case)

Question 22

There is no DOC owed to P if:

• 1. statute requires D to treat the interests of the child as paramount,
• 2. Statute requires them to investigate and report harm of children
• 3. There would be inconsistency with the proper discharge of responsibilities if DOC was owed to P

Answer 22

(Sullivan v Moody [2001] HCA 59)

Question 23

The reasonable care which the employer is obliged to take may require devising a system of work or method of operation which eliminates the risk, or else which provides adequate safeguards against risk

Answer 23

• (Czatyrko v Edith Cowan University (2005) 214 ALR 349)

Question 24

DOC owned to employee is that the employer must take reasonable care for the safety of the employee to avoid the employee to unnecessary risk of injury

Answer 24

Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18

Question 25

Genesis of common law DOC of employer and employee is the exclusive responsibility which the employer has for the safety in the workplace, and equipment used.

Employee has no practical choice but to accept and rely on the employer’s provisions and judgement

Answer 25

Kondis v State Transport Authority (1984) 154 CLR 67

Question 26

Determining DOC and SOC is the right to control and the exercise of actual control

Answer 26

• Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16)

Question 27

DOC of an employer to an employee is one within recognized categories of non-delegable duty, the employer has sold control over the system subject the employer and employee must put up with it.

Answer 27

• (Northern Sandblasting PL v Harris (1997) 188 CLR 313)

Question 28

Duty to warn or advise the risks of medical procedures which is limited to act “in a manner that (at the time the service was provided) was widely accepted in Australia by peer professionals as competent in practice.

Answer 28

(CLA s 5O)

Question 29

Scope of this duty to warn of risk is was said to be based on patient’s view whether the risk was material

Answer 29

(Roger v Whitaker (1992) 175 CLR 479) (Dr performed eye surgery with risks of blinding her, did not tell her of risks, she got blind, case.)

Question 30

Medical practitioners owe their patients a ‘a duty to exercise reasonable care and skill in the provision of professional advice and treatment.

Answer 30

(Roger v Whitaker (1992) 175 CLR 479)

Question 31

• In rare circumstances, there is a duty of care for medical practitioners to third parties.

A medical practitioner has a duty of care to notify the partner of the patient who has HIV as it was reasonably foreseeable that the pt was endangering the partner.

Answer 31

• (BT v Oie [1999] NSWSC 1082)

Question 32

Which section in the CLA also establishes the test for duty of care?

Answer 32

s5B(1)(a)

5B (1)A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known),…