Negligence: Duties of Care Week 4 Flashcards

1
Q

What is the established DUTY OF CARE and it’s SCOPE for a MANUFACTURER? Include the AUTHORITY for this?

A

SCOPE OF RELATIONSHIP: Duty of care to prevent injury or loss to persons when it is reasonably foreseeable that they would use the manufactured goods.
DUTY TO: Take reasonable care to prevent the product causing injury of loss to the foreseeable consumer
AUTHORITY: Donoghue v Stevenson

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2
Q

What is the established DUTY OF CARE and it’s SCOPE for a OCCUPIERS? Include the AUTHORITY for this?

A

SCOPE OF RELATIONSHIP: Duty of care to persons entering the premises
DUTY TO: Reasonable care to ensure that the behavior of other persons, the activities carried out on the premises do not place others at risk of foreseeable harm
AUTHORITY: Strong v Woolworths Ltd (t/as Big W)

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3
Q

What is the established DUTY OF CARE and it’s SCOPE for a EMPLOYERS? Include the AUTHORITIES for this?

A

SCOPE: Employees
DUTY TO: Take reasonable care not to expose employees to foreseeable risks of injury
AUTHORITY: Smith v Charles Baker & Sons (1891)
This includes:
i) Providing a safe system of work - Neill v NSW Fresh Food & Ice Pty Ltd 1963

ii) Proper selection of skilled persons to manage and supervise the business - Butler v Fife Coal Ltd (1912)
iii) Provide safe plant and equipment - WIlsons & Clyde Coal Co Ltd v English [1938]

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4
Q

What is the established DUTY OF CARE and it’s SCOPE for ROAD USERS? Include the AUTHORITIES for this?

A

SCOPE: Road users owe a duty of care to other road users and persons adjacent to the road (this includes drivers, passengers and pedestrians)
DUTY TO: Use proper care not to cause injury to other road users
AUTHORITY: Imbree v McNeilly (2008)

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5
Q

What is the established DUTY OF CARE and it’s SCOPE for SCHOOL AUTHORITIES AND TEACHERS? Include the AUTHORITIES for this?

A

SCOPE: All Students under care even outside school hours
DUTY TO: Take precautions for safety as a reasonable parent would have, to avoid foreseeable risks
AUTHORITY: Commonwealth v Introvigne

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6
Q

What is the established DUTY OF CARE and it’s SCOPE for MEDICAL AUTHORITIES? Include the AUTHORITIES for this?

A

SCOPE: Patients under care
DUTY TO: Exercise reasonable care and skill in the provision of medical services
AUTHORITY: Rogers v Whitaker
• ‘extends to the examination, diagnosis and treatment of the patient and the provision of the information(giving on advice)’

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7
Q

What is the established DUTY OF CARE and it’s SCOPE for MEDICAL AUTHORITIES? Include the AUTHORITIES for this?

A

SCOPE: Client
DUTY TO: Exercise due care and diligence in carrying out the terms of the retainer (contract between the client and legal person)
AUTHORITY: Heydon v NRMA Ltd

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8
Q

What are the 4 established non-delegable duties of care?

A

School authorities owe a non-delegable duty of care because students are especially vulnerable and the school is in control of their safety
- This includes employing proper staff and supervision of the students
AUTHORITY:

Hospitals owe a non-delegable duty of care because patients are especially vulnerable and the hospital is in control of the parents safety
- “Hospital undertakes the care, supervision and control of patients who are in special need of care”
AUTHORITY: Kondis v State Transport Authority

Occupiers have a non-delegable duty of care to licensees and other persons affected by activates carried out on the premises
AUTHORITY:

Employers owe an employee a non-delegable duty of care to employees
- To avoid liability in negligence would have to prove that the person delegated the task had taken reasonable care.
AUTHORITY:

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9
Q

When does vicarious liability apply?

A

An employer will be vicariously liable for the wrongful acts of an employee carried out during the course of employment NOT the actions of independent contractors
AUTHORITY: Hollis v Vabu Pty Ltd

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10
Q

What 8 factors nay be considered to establish that a tortfeasor is an EMPLOYEE not an independent contractor?

A

To ensure the totality of an employer-employee relationship you must consider
◊ Control
◊ Mode of remuneration (How are they being payed)
◊ Provision and maintenance of equipment
◊ Obligation to work exclusively for the employer
◊ Hours of work
◊ Provisions of holidays
◊ Deduction of income tax
◊ Right to delegate work and subcontract the work
AUTHORITY: Hollis v Vabu Pty Ltd

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11
Q

What are the 3 ELEMENTS of VICARIOUS LIABILITY and the authorities for these?

A

1) The tortfeasor is an employee
2) The employee committed a tortious act
3) The tort was committed in the course of the employment
AUTHORITY: Hollis v Vabu

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12
Q

What are the DEFENSES to VICARIOUS LIABILITY and the authorities for these?

A

1) Express Prohibition of the act
• Does the prohibition limit the scope of employment or merely regulate the employees conduct within the scope of the employment?
AUTHORITY: Bugge v Brown

2) Frolic of the employer [If the employee was frolicking when they committed the tort, the employee is NOT vicariously liable]
• Applies when employees do something that is in furtherance of their own interests not their employer’s
AUTHORITY: Joel v Morison

3) Intentional Tort (Like a battery or assault)
• Must prove that there is was not a ‘sufficient connection’ or a ‘close connection’ between the tort and what the employee had been tasked to do
AUTHORITY: New South Wales v Lepore

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13
Q

Is wrongful mode a defense to Vicarious liability?

A

No.
An act that is in the scope of employment but carried out the wrong way, is still considered in the course of employment
AUTHORITY: Bugge v Brown

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