Duty of Care Pt 1 Flashcards
Understand Negligence -DoC -meaning of reasonable foreseeability -Professionals
Donoghue v Stevenson [1932] AC 562
House of Lords
“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”
Who is my neighbour? → “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 question.” -(Lord Atkin).
“The categories of negligence are never closed” - Lord Macmillan
Chapman v Hearse (1961) 106 CLR 112
Meaning of Reasonable foreseeability
Hearse hit Dr Cherry with his car & killed him while he was attending to Chapman, who was thrown from his car in a preceding accident.
“It is not necessary for the plaintiff to show that the precise manner in which his injuries were sustained was reasonably foreseeable; it is sufficient if it appears that injury to a class of persons of which he was one might reasonably have been foreseen as a consequence….” The Court (Dixon CJ, Kitto, Taylor, Menzies, and Windeyer JJ).
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; [1998] HCA 5
Romeo fell off cliff, broke back, paraplegic.
Toohey & Gummow JJ: would dismiss the appeal. Appellant was familiar with the area.
Kirby J: The duty of care was satisfied by foreseeability and proximity principles being met.
Scope of DoC = reasonable care. → “Where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just.”
Held there was no breach of duty.
Appeal dismissed.
Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871
Lord Diplock
(Professionals)
Doctors
The DoC a doctor owes to his/her patient is broad and “[covers] all the ways in which a doctor is called upon to exercise his skill and judgement.”
Rogers v Whitaker (1992) 175 CLR 479
Professionals
Scope of DoC is based on the patient’s view of whether the risk was material.
Tame v New South Wales
Psychiatric Injury
Gleeson CJ
Reasoning: Acting Sergeant Beardsley did not owe Mrs Tame a DoC.
“It would be inconsistent with such a duty [to frankly inform superiors] to require the police officer to take care and to protect from emotional disturbance and possible psychiatric illness a person whose conduct was the subject of investigation and report.”
Her psychiatric injury was not reasonably foreseeable.
Gummow and Kirby JJ: “There can be no legal duty to break bad news gently”.
Appeal dismissed with costs.
Annetts v Australian Stations Pty Limited
Gleeson CJ: Special leave to be granted and the appeal should be allowed because the trauma experienced by the parents, though not a sudden shock, “was likely to result in mental anguish of a kind that could give rise to a recognised psychiatric illness”.
Gummow and Kirby JJ: Three control mechanisms:
1.“normal fortitude”
2.“sudden shock”,
3. plaintiff “directly perceive” a distressing phenomenon or its “immediate aftermath”.
THESE CONTROL MECHANISMS ARE UNSOUND
“Arbitrary and capricious”
Impedes a coherent body of law.
“Direct perception” → creates many exceptions and new categories.
Rejects the “normal fortitude” test because it is “imprecise and artificial”.
“Sudden shock” ‘is not a settled requirement of the common law of Australia.’
“The requirement to establish ‘sudden shock’ should not be accepted as a pre-condition for recovery in cases of negligently inflicted psychiatric illness.”
Wicks v SRA (NSW); Sheehan v SRA (NSW)
Wicks v State Railway Authority of New South Wales; Sheehan v State Railway Authority of New South Wales (2010) 241 CLR 60; [2010] HCA 22
(Psychiatric Injury)
Police, train crash, psychiatric injury.
Issue: issue of liability, turning on the construction and application of Pt 3 (ss 27-33) of the CLA.
Expression “being… put in peril” should be given the meaning which the words ordinarily convey. “A person is put in peril when put at risk; the person remains in peril (is ‘being put in peril’) until the person ceases to be at risk.
Not all cases of death, injury or being put in peril occur in an instant, they may happen “over an extended period”.
The reference in s 30(1) to “another person (the victim)” should be read as “another person or persons (as the case requires)”. There does not have to be a reference to a single victim only.
The conditions of “reasonable or ordinary fortitude”, “shocking event”, or “directness of connection” are not preconditions to liability when determining if the event was “reasonably foreseeable”.
Broad interpretation of s 30
Showed us to read CLA as s 32 then s 30
King v Philcox [2015] HCA 19
(Originally a SA case)
(Psychiatric Injury)
Accident, brother was in it.
French CJ, Kiefel and Gageler JJ:
The categories of “reasonable or ordinary fortitude”, “shocking event”, “directness of connection”, are not preconditions additional to the “the central question… whether, in all circumstances, the risk of the plaintiff sustaining such an injury was reasonably foreseeable.
Injury must be a recognised psychiatric illness.
“To witness the aftermath of the event is not to witness the event itself.”
Sibling relationships can fall within the scope of the DoC.
Nettle J: DoC
Close relatives of the victim are owed a DoC, “such a relative is a person who is so closely and directly affected by the driver’s negligence that the driver should have them in contemplation as potentially so affected.”
Stovin v Wise [1996] AC 923
Bystander does not owe a drowning child or heedless pedestrian (analogies) a duty to take steps to save them. Something more is required than being a bystander.
Stuart v Kirkland-Veenstra (2009) 237 CLR 215
Police do not owe a DoC to a person who was attempting to commit suicide where they came upon him with a hose attaching thee exhaust to the inside of his car.
Koehler v Cerebos (2005) 222 CLR 44
P didn’t make her psychiatric health concerns known to her employer and voluntarily took up the contract of employment. She had made it known that the work load was too much, but this did not indicate that it posed a risk to her mental health.
