Negligence: Duties of Care Week 4 Flashcards
What is the established DUTY OF CARE and it’s SCOPE for a MANUFACTURER? Include the AUTHORITY for this?
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
What is the established DUTY OF CARE and it’s SCOPE for a OCCUPIERS? Include the AUTHORITY for this?
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)
What is the established DUTY OF CARE and it’s SCOPE for a EMPLOYERS? Include the AUTHORITIES for this?
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]
What is the established DUTY OF CARE and it’s SCOPE for ROAD USERS? Include the AUTHORITIES for this?
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)
What is the established DUTY OF CARE and it’s SCOPE for SCHOOL AUTHORITIES AND TEACHERS? Include the AUTHORITIES for this?
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
What is the established DUTY OF CARE and it’s SCOPE for MEDICAL AUTHORITIES? Include the AUTHORITIES for this?
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)’
What is the established DUTY OF CARE and it’s SCOPE for MEDICAL AUTHORITIES? Include the AUTHORITIES for this?
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
What are the 4 established non-delegable duties of care?
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:
When does vicarious liability apply?
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
What 8 factors nay be considered to establish that a tortfeasor is an EMPLOYEE not an independent contractor?
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
What are the 3 ELEMENTS of VICARIOUS LIABILITY and the authorities for these?
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
What are the DEFENSES to VICARIOUS LIABILITY and the authorities for these?
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
Is wrongful mode a defense to Vicarious liability?
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