Week 11 & 12 - Negligence and Vicarious Liability

Question 1

What is negligence?

Answer 1

A civil wrong that occurs when someone carelessly causes harm to another human.

It comes under the Civil Liability Act 2003 (QLD).

Question 2

How can negligence be proved?

Answer 2

1. The defendant owed the plaintiff a duty of care.
2. The defendant breached that duty of care.
3. The defendant’s breach CAUSED the plaintiff to suffer harm
4. Even if all 3 elements are satisfied, the defendant can reduce or even avoid their liability with certain defences

Question 3

What is tortious liability?

Answer 3

A civil wrong - so an act that causes harm to another human.

E.g. Liability for breach of duty of care (i.e. Negligence). Can also be trespass or defamation

Question 4

The onus to prove a duty of care is on which party?

Answer 4

The plaintiff

Question 5

What are some established duty of care relationships?

Answer 5

Motorists owe a duty of care to other road users (Imbree v McNeilly).

◦Doctors owe a duty of care to their patients (Rogers v Whitaker) .

◦Manufacturers owe a duty of care to people who use their products (Donoghue v Stevenson).

◦Occupiers owe a duty of care to people who come onto their premises (Australian Safeway Stores Pty Ltd v Zaluzna).

Question 6

If the relationship does not fall within one of the established categories, what must the plaintiff prove?

Answer 6

1. That it was REASONABLY FORESEEABLE that the defendant’s conduct could cause harm to someone in the plaintiff’s position (Donoghue v Stevenson)
2. The plaintiff must show that the SALIENT FEATURES of the case are consistent with the existence of a duty of care.

Question 7

What is the reasonable foreseeability test (Donoghue v Stevenson)?

Answer 7

When you see if it was reasonably foreseeable, at the time, that the defendant’s actions would cause harm to another person

Question 8

If harm to a person in the plaintiff’s position isn’t reasonably foreseeable, then is there still a duty of care?

Answer 8

No, the defendant doesn’t owe the plaintiff a duty of care (Bourhill v Young)

Question 9

What are the three salient features?

Answer 9

The control the defendant has over the situation.

The relative vulnerability of the plaintiff.

The need for people to take responsibility for their own actions.

Question 10

What is the case Perre v Apand about? (Pertains to salient features)

Answer 10

Apand was a potato chip manufacturer and the Perre family were potato growers in WA. Apand sold a crappy batch of potato seeds to the Perre’s neighbour, Sparnon, who were also potato growers. The seed was infected with a disease that contaminated Sparnon’s potatoes and, under WA law, their potatoes could not be imported into WA for a period of 5 years. Nor could any potatoes from farms within a 20km radius of the Sparnon’s farm, which included the Perres’ farm. The Perre family sued Apand for compensation for the economic loss their incurred for the ban.

Held – Apand owed Perres a duty of care, could recover.
Apand knew that the Perres’ grew and processed potatoes within a 20km radius of the diseased crop and knew of the WA law that prohibited importation of diseased crop (CONTROL).
Also the court looked at the Perres’ VULNERABILITY that there was no way that they could have protected themselves against the risk

Question 11

What is negligent misstatement?

Answer 11

When careless advice is given and it leads to economic loss. Relevant to accountants, auditors, financial advisers, investment consultants, travel agents, or anyone who regularly gives advice to clients.
Duty of care is established differently here.

Question 12

When does a defendant, giving advice to a plaintiff, owe a duty of care? (Hedley Byrne v Heller)

Answer 12

1. The advice was a business or serious nature and
2. Defendant knew or should have known that the plaintiff intended to rely on the advice and
3. It was reasonable in the circumstances for the plaintiff to rely on the defendant’s advice.

If all those elements are satisfied, then the defendant owes the plaintiff a duty of care. Can owe a duty of care even if they aren’t a professional adviser.

Question 13

What is the case Rentokil Pty Ltd v Channon about? (Pertains to duty of care when defendants give advice to plaintiffs)

Answer 13

Channon relied on a pest inspection report prepared by Rentokil in deciding to buy her house. The report incorrectly stated the house was free of termites, so after Channon bought the house, it had to be demolished.

HELD - Rentokil owed Channon a duty of care

Question 14

How can a person owe a duty of care to a third party?

Answer 14

If 1. they give their client business or serious advice knowing that the client will communicate that advice to the third party; and

2. the advice is likely to lead the third party to enter into a particular type of transaction; and
3. it is likely that the third party will suffer financial loss if they enter into that transaction and the advice is wrong.

But generally a person won’t owe the third party a duty of care unless they were aware the advice would be passed on.

Question 15

What legislation does breach of duty come under?

Answer 15

Section 9 of the Civil Liability Act 2003 (QLD)

Question 16

What does a breach of duty occur? (According to s9 CLA)

Answer 16

1. The risk of harm was foreseeable; and
2. The risk was not insignificant; and
3. A reasonable person in the position of the defendant would have taken the precautions against the risk of harm.

The court will consider:

• the probability that the harm would occur if care were not taken
• the likely seriousness of the harm
• the burden of taking precautions to avoid the risk of harm; and
• the social utility of the activity that creates the risk of harm

Question 17

What are the three aspects of a breach of duty?

Answer 17

1. Risk was foreseeable
2. Risk was significant
3. Person failed to do what a reasonable person would have done

Question 18

What is the case Paris v Stepney Borough Council about? (Pertains to breach of duty)

Answer 18

Paris was blind in his left eye, which his employer knew about it. Then he was blinded in his right eye whilst operating machinery at work.

HELD - employer was negligent for failing to supply him with safety goggles. Looked at the seriousness of the consequences of the injury

Question 19

What does it mean by “social utility of the activity?” - pertains to breach of duty

Answer 19

So it’s asking if the defendant was doing something socially useful when they allegedly caused harm to the plaintiff. If so, they’re less likely to be found to have breached their duty of care.

e.g. an ambulance driver that gets into a car accident.

Question 20

What is the case Agar v Hyde about? (Pertains to social utility and breach of duty)

Answer 20

Two amateur rugby players broke their necks when scrums collapsed on them while playing - they sued the International Rugby Board, saying that they were negligent when they wrote the scrum rules.

HELD - there’s public benefit (utility) to participating in sport, even though it can cause injury. Also, they assumed the risk when they decided to play

Question 21

What is the 3rd requirement to satisfy that negligence has occurred?

Answer 21

That the defendant’s breach of duty CAUSED the harm suffered by the plaintiff.

Comes under s11 of CLA

Question 22

What are the two parts to section 11 of the CLA? (Relates to 3rd requirement of negligence)

Answer 22

1. The breach of duty was a necessary condition of the occurrence of the harm (factual causation) and
2. It is appropriate for the scope of liability of the defendant to extend to the harm so caused (scope of liability).

Question 23

What is factual causation? (Relates to requirement 3 of negligence)

Answer 23

When the defendant is only responsible for harm that was caused by their carelessness.

The “but for” test is used to test

◦whether, but for the defendant’s carelessness, the plaintiff would have suffered the harm.

◦if, in the absence of the defendant’s carelessness, the plaintiff would not have suffered the harm, then the harm was caused by the defendant’s carelessness i.e. factual causation.

Question 24

What is scope of liability? (Relates to requirement 3)

Answer 24

What the defendant is liable for. They’re not responsible for every consequence of their carelessness. Court must decide that it is appropriate for the scope of the defendant’s liability to extend to the harm actually suffered by the plaintiff.

Whether the loss or injury suffered by the plaintiff was a reasonably foreseeable consequence of the defendant’s carelessness.

If the harm suffered by the plaintiff was too remote or far fetched (not reasonably foreseeable) then defendant not liable for that harm.

Question 25

What is the case Rowe v McCartney about? (Relates to scope of liability - requirement 3)

Answer 25

Rowe let McCartney drive her car - McCartney crashed it and became a paraplegic as a result. Rowe suffered minor physical injuries, but suffered mental illness because she felt guilty about McCartney’s injuries. Rowe sued McCartney.

HELD - while McCartney’s breach of duty caused Rowe’s mental illness, but it wasn’t reasonably foreseeable that Rowe would become mentally ill.

Question 26

What are the 2 defences that can be used to avoid tortious liability?

Answer 26

1. Voluntary assumption of risk

2. Contributory negligence

Question 27

What is the voluntary assumption of risk defence?

Answer 27

If it can be established that the plaintiff was fully aware of the risk at the time the harm was caused and they voluntarily assumed that risk, the defendant is relieved of all liability.

Comes under s14 CLA

Question 28

What is the case Insurance Commissioner v Joyce about? (Relates to voluntary assumption of risk defence).

Answer 28

Joyce accepted a ride from a drunk driver, and then they got into a car accident.
The court held that Joyce wasn’t entitled to compensation because he voluntarily accepted the lift and assumed the risk.

Question 29

What is contributory negligence? (Relates to defences)

Answer 29

When it can be established that the plaintiff contributed in some way to their own loss or injury, then liability can be shared between the defendant and plaintiff.

Comes under s23 CLA.
S47 creates a presumption of CN if a person was injured while intoxicated.

Question 30

What is vicarious liability?

Answer 30

When a person is held liable for harm caused by another. Often applies to employees/employers

Question 31

When are employers vicariously liable for the actions of their employees?

Answer 31

If the employee was acting in the course of his/her employment, and they undertake authorised work in an unauthorised manner, then the employer will still be vicariously liable. But an employer will not be vicariously liable for an employee’s actions that are outside their scope of employment.

Question 32

How do courts establish an employer-employee relationship?

Answer 32

Courts apply the control test: if the person paying for the services has the right to tell the worker what to do and how to do it, then the worker is an employee (Hollis v Vabu Pty Ltd)