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Cases Flashcards

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1
Q

Donoghue v Stevenson (area and facts)

A

Area: duty of care, neighbour principle

Facts: snail in the bottle, recovering damages where there was no breach of contract, as drink was bought by friend

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2
Q

Donoghue v Stevenson (findings)

quote

A

tort of negligence established
“take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”
“the categories of negligence are never closed” (Lord Macmillan)

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3
Q

Chapman v Hearse

A 
What is 'reasonable foreseeability?' (duty of care)
'sufficient if it appears that injury to a class of persons of which P was one might reasonably have been foreseen as a consequence'
"consequence of the same general character"
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4
Q

Rogers v Whitaker

A

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

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5
Q

Romeo v Conservation Commission of the Northern Territory (quote)

A

Area: scope of duty of care
Facts: girl falling off km-long cliff while intoxicated
the risk was foreseeable, but “only in the case of someone ignoring the obvious”
scope is ‘no more than that of reasonable care’

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6
Q

Stovin v Wise

A

accepted that there is no general duty of care to rescue

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7
Q

Stuart v Kirkland-Veenstra (quote)

A

Area: duty to rescue?
Facts: Man committed suicide after ensuring police he wouldn’t
Findings: no duty to rescue “connected to the unwillingness of the common law to recognise a duty of affirmative action”
police did not increase the risk of harm

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8
Q

Tame; Annets (quote)

A

(psychiatric harm) duty arises when “clearly likely to result in mental anguish of a kind that could give rise to a recognised psychiatric illness” (pre CLA)

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9
Q

Wicks v State Rail Authority

A

Area: Post-CLA mass casualty causing psychiatric harm
Findings: how to interpret CLA s30(2)(b) - someone being ‘killed, injured or put in peril’
no requirement that the psychiatric injury must relate to one specific victim

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10
Q

King v Philcox

A

Area: psychiatric harm

Shows difference between NSW CLA and SA CLA because of the wording of s32 (mental harm) equivalent in SA

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11
Q

Alcock v Chief Constable

A

Area: duty of care, psychiatric harm
not entitled to recover damages unless plaintiff can affirmatively establish the existence of a recognisable psychiatric illness.

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12
Q

Koehler v Cerebos

A

Area: psychiatric harm, reasonable foreseeability in the workplace
Consider ‘other obligations’ existing between the parties e.g. employee agreed to perform the duties, reducing reasonable foreseeability of harm

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13
Q

Healy Byrne & Co Ltd v Heller and Partners Ltd

A

Area: duty of care to prevent economic loss

Most important: there CAN be a duty to take care to prevent pure economic loss caused by negligent words

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14
Q

Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (quote)

A

Area: duty of care to prevent economic loss
‘reasonable reliance’ was absent, so NO duty of care -> Esanda was able to protect themselves
‘mere foreseeability of harm does not, where the only harm is pure economic loss, give rise to a duty of care’ (Dawson J)

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15
Q

Conditions to satisfy duty of care in relation to words causing pure economic loss

A
  1. D communicated advice to P
  2. D knew / ought to have known that the plaintiff would be very likely to rely on it
  3. D knew / ought to have known there was a risk of incurring economic loss if the advice should be unsound
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16
Q

Caltex Oil v The Dredge

A

Area: pure economic loss by negligent acts
This duty requires reasonable foreseeability that a specific individual will suffer financial loss as a consequence of the negligence

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17
Q

Woolcock Street Investments v CDG (quote)

A

Area: pure economic loss by negligent acts
‘… the facts do now show that the appellant could not have protected itself against the economic loss… other investigations might have been undertaken’

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18
Q

Johnson Tiles P/L v Esso P/L (Victoria, persuasive not authoritative)

A

Area: pure economic loss by negligent acts
gas explosion -> no supply of gas to business -> business shut down -> no profit - ECONOMIC LOSS TOO REMOTE
Duty of care only owed in case of property damage, not other loss

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19
Q

Bankstown Foundry Ptd Ltd v Breasting (quote)

A

Reasonableness: “what is considered to be reasonable in the circumstances of the case must be influenced by current community standards”

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20
Q

Wyong Shire Council v Shirt (quotes)

A

A foreseeable risk is one which is not ‘far-fetched or fanciful’
“A risk of injury which is quite unlikely to occur… may nevertheless be plainly foreseeable”
“not a question which a judge is necessarily better equipped than a layman” Q OF FACT

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21
Q

Doubleday v Kelly (quote)

A

Area: reasonable foreseeability (breach of duty)
“what is to be considered is foresight in more general term of risk of injury to a child if she were to use to trampoline without adult supervision” (Bryson JA)

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22
Q

Bolton v Stone (quote)

A

Area: reasonable foreseeability (breach)
“In order that the act may be negligent there must not only be a reasonable possibility of its happening but also of injury being caused”

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23
Q

Benic v NSW

A

Area: interpreting s5B(1) of CLA (breach)
‘not insignificant’ is higher order than common law test
must operate in prospect, not in retrospect

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24
Q

Vaughan v Menlove (definition of reasonable person)

A

“objective one of the reasonable person in the circumstances with no allowance for the defendant’s individual idiosyncrasies”

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25
Q

McHale v Watson

A

AGE/ reasonable person

standard can vary with age, if the conduct is reasonable for a child of that age

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26
Q

Carrier v Bonham

A

DISABILITY / reasonable person
mental condition does not diminish or reduce liability to plaintiff, as they ventured into normal society, so normal test applies

27
Q

Stevens v Brodribb (quote)

A

Area: vicarious liability, employment relationship
Indicia of employment
under independent contract: “his work, although done for the business, is not integrated into it but only accessory to it” (Mason J)

28
Q

Zuijis v Wirth Bros P/L

A

Area: vicarious liability, employment relationship
Employer/employee relationship indicated by: payment of wages, right to suspend for misconduct, costumes, rehearsals, all conduct within control of circus

29
Q

Hollis v Vabu (quote)

A

Area: vicarious liability, employment relationship
“an employer is vicariously liable for the tortious acts of an employee but.. a principal is not liable for the tortious acts of an independent contractor”
There was not only scope for control, but control was exercised

30
Q

Deatons P/L v Flew

A

Area: vicarious liability, scope/course of employment

Barmaid’s glassing was not ‘on the master’s business’

31
Q

Starks v RSM Security P/L (quote)

A

Area: vicarious liability, scope/course of employment
Gleeson CJ: “throwing a glass of beer in someone’s face is not an over enthusiastic way of serving beer, but exercising undue violence is a well-known over enthusiastic way of ejecting people from premises”

32
Q

NSW v Lepore; Samin v Cld; Rich v Qld

A

Area: vicarious liability, scope/course of employment
Connection between D’s acts and what they were hired to do. ‘sufficient connection’; ‘employment materially exacerbated or enhanced risk’
Kirby J - just one of judge’s suggestions in this area

33
Q

Imbree v McNeilly

A

Area: defining reasonable person

There is no variation in standard of care from an experienced driver to a novice driver

34
Q

McHale v Watson; Zanner v Zanner

A

Area: defining reasonable person

The standard of care of a child is that of a reasonable child of the same age and experience

35
Q

Carrier v Bonham

A

Area: defining reasonable person

Standard of care of a mentally ill person is that of a ‘normal’ person

36
Q

Bolam v Friern Hospital Management Committee

A

Area: standard of care
The standard of care owed by professionals is a ‘matter of medical judgement’
Supported by s5O and 5P of CLA expect ‘failure to warn of risks’

37
Q

RTA v Dederer (quote, general)

A

IDENTIFYING THE RISK
“It is only through the correct identification of the risk that one can assess what a reasonable response to this risk would be” (add to the 2nd limb test for breach of duty)

38
Q

RTA v Dederer

A

s5B(2)(a) (probability that harm would occur if care not taken)
‘reasonable care, not prevention’
It was probable that the harm would still occur if care was taken, therefore it is unreasonable to impose liability

39
Q

Paris v Stepney Borough Council

A

s5B(2)(b) (likely seriousness of the harm)

Being already blind in one eye, the likely seriousness of the harm that could occur was increased

40
Q

Woods v Multi-Sport Holdings

A

s5B(2)(c) (burden of taking precautions)
[Man 99% blind in one eye after being hit at indoor cricket]
Burden was too great as there was no sufficient product on the market and it would require similar procedure to be taken in all sports in all centres. The risk was so obvious that it did not require respondent to warn

41
Q

Neindorf v Junkovic (quote)

A

s5B(2)(c) (burden of taking precautions)
[garage sale driveway crack]
“if doing nothing about a hazard were of itself sufficient to constitute negligence, there would probably not be an occupier of land in SA who could pass that test” (Gleeson CJ)
Risk so obvious and so avoidable that leaving it was not a breach

42
Q

E v Australian Red Cross Society

A

s5B(2)(d) (social utility of the risk-creating activity)
[HIV contracted after operation with blood transfusion]
Testing at the time would have severely limited blood supply, and it is unfair of donors (D) to bear the burden of protecting all public interest, given the benefit they are bringing to society

43
Q

Romeo (s5C)

quotes

A

Hayne J: “duty is not that of an insurer but a duty to act reasonably”
Burden too great to fence off all similar carparks

“The fact that an accident has happened and injury has been sustained will often be the most eloquent demonstration that the probability of its occurrence is not far fetched or fanciful”

44
Q

RTA v Refrigerated Roadways

A

s5C(a) assessing burden of avoiding all similar risks
[concrete block dropped from bridge]
Consider the burden of having had all bridge screening done before the date of the accident
Too great a burden -> no breach of duty

45
Q

March v Stramare

A

Area: factual causation
[parked truck in middle of highway, driver injured in collision with it, driving negligently]
Even though it wasn’t all D’s fault, consider ‘but for’ test as the exclusive test of factual causation, THEN consider scope

46
Q

Chapman v Hearse

A

Area: factual causation

Rejected reasonable foresight as a test of factual causation

47
Q

Amaca v Ellis

A

Area: factual causation
[lung cancer possibly caused by exposure to asbestos with a combination of other unrelated risk factors]
Saying that something may have been a cause is ‘not sufficient basis for attributing legal responsibility’

48
Q

Haber v Walker

A

Area: novus actus interveniens
[Suicide of injured person one year after injury in car accident caused by negligence]
Chain of causation broken if
a) human action completely voluntary
b) casually independent event from original negligence

49
Q

Adeel’s Palace v Moubarak

A

Area: factual causation
[dispute with gunman, no security on NYE]
To prove factual causation, MUST establish (on BoP) that security WOULD have prevented re-entry of gunman (not enough to prove that action MAY have made a difference)

50
Q

Strong v Woolworths (quote)

A

Area: factual causation
[greasy chip case]
“Proof of causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred”

51
Q

Mahoney v Kruschich Demolitions

A

Area: novus actus interveniens
[injury caused in demolition, new conditions arose from bad medical treatment]
Doctor’s negligence can only replace employer’s if the second event (treatment) is not a consequence of the first event (injury). Original injury carries some risk that medical treatment may be negligently given (unless ‘inexcusably bad’ treatment)

52
Q

Medlin v State Government Insurance Commission (quote)

A

Area: factual causation
[retired early because of injury/ chronic condition]
“Two or more distinct causes, without any one of which the particular damage would not have been sustained, can each satisfy the law of negligence’s common sense test of causation”

53
Q

Baker v Willoughby

A

Area: factual causation, successive causes
[leg injured in car accident, leg amputated after unrelated event of being shot during a robbery]
Original tortfeasor should not be made liable for injury that is completely unrelated to the damage that he caused

54
Q

Hughes v Lord Advocate (quotes)

A

Area: scope of liability - REMOTENESS
[boy fell down manhole and burnt by lamp explosion]
Defendant found liable because although the ‘exact shape of the disaster’ was not foreseeable, the damage was caused by a known source of danger.
“the accident was but a variant of the foreseeable”

55
Q

Jobling v Associated Dairies Ltd

A

Area: scope of liability - novus actus interveniens
[man retired early due to injury and degenerative spinal injury]
‘vicissitudes of life’ including unrelated disease/injury CAN break the chain of causation

56
Q

Stephenson v Waite Tileman (quote)

A

Area: scope of liability - eggshell skull rule
[cut by dodgy strands of wire, special susceptibility of P caused long term debilitation and ‘pitiful’ condition]
the INITIAL injury was foreseeable therefore, although the damage was worse than foreseeable, the final damage is within the scope of liability
“the amount of damage suffered… depends upon the characteristics and constitution of the victim”

57
Q

Cases about varying standard of care in Contributory Negligence

A

Doubleday v Kelly: reasonable child of same age and experience
Town of Port Headland v Hodder: standard modified for physical disability, but not intellectual disability alone

58
Q

Paterson v Commissioner for Railways

A

Area: Contributory negligence AGONY OF THE MOMENT
[P injured by jumping off train that moved without warning, son on platform, next station 80mi away]
Adjust standard of reasonable care to reasonable person lacking time for calm reflection
ALSO consider inconvenience of taking certain precautions

59
Q

Grant v Sun Shipping (quote)

A

“a prudent man will guard agains the possible negligence of others when experience shows such negligence to be common” (anticipating the negligence of others”

60
Q

Jones v Livox Quarries (quote)

A

Area: causal connection between C.N and damage
[man crushed while riding towbar]
“P’s negligence was so mixed up with his injury that it cannot be dismissed as mere history”

61
Q

From v Butcher (quote)

A

Area: causal connection between C.N and damage

“The question is not what the cause of the accident was. It is rather what was the cause of the damage”

62
Q

Podrebersek v Australian Iron and Steel

A

Area: apportionment of damages, C.N
[safe system of work v safe practice]
2 factors to consider when apportioning
1) relative departure of each party from the conduct of a reasonable person
2) relative importance of the parties’ acts in causing the damage (‘causal potency’)

63
Q

Carey v Lake Macquarie City Council (quote)

A

Area: voluntary assumption of risk

“It is not enough that the plaintiff merely agreed to accept the risk. The agreement must in a real sense be voluntary”

64
Q

Laoulach v Ibrahim

A

Area: voluntary assumption of risk
[diving off new boat]
even if a risk of injury is obvious with potentially catastrophic consequences, unless there is a real change of it materialising, the defence will be unavailable

Torts Law (5 decks)

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