Week 4 Everything

Question 1

TORT OF NEGLIGENCE

Answer 1

A person commits the tort of negligence if they carelessly cause harm to another person. Negligence is by far the most common tort. Most acts that cause harm to other people are the result of carelessness rather than intent. Since the civil liability reforms following the insurance crisis the law of negligence is now a combination of case law and statutory rules.

Question 2

A person commits the tort of negligence if:

Answer 2

1. They owe the other person a duty of care
2. They breach the duty of care;
3. Their breach causes the other person to suffer reasonably foreseeable harm.

Question 3

1.Duty of Care

Answer 3

In most cases the establishment of the existence of a duty of care will be relatively straightforward, provided that the relationship between the parties falls within the established categories of duty of care

Question 4

To discuss liability under any one of the established categories would therefore, firstly require a reference to or discussion of Donoghue v Stevenson

Answer 4

So the starting point in a discussion on Negligence must begin with Donoghue v Stevenson because it was as a result of what said in that case about the elements of Negligence – and in particular, the Duty of Care - that the established duties of care came to be known as such.

Question 5

Donoghue v Stevenson: Facts and Decision

Answer 5

Miss Donoghue consumed a drink in a café in Scotland that had been bought by her friend. She became violently ill after consuming decomposed snail. Then, a duty of care was only owed to people harmed by the negligent acts of others in specific and limited circumstances:

contract between parties

Manufacturer making something dangerous

Manufacturer acting fraudulently.

Therefore, as the law stood, Miss Donoghue could not take legal action over the snail in her ginger beer.

Question 6

Donoghue sued the manufacturer

Answer 6

She claimed that the manufacturer was negligent – in that he supplied contaminated food. That food caused her harm.

Question 7

Donoghue v Stevenson Issue

Answer 7

Whether the manufacturer owed Donoghue a duty of care given that there was no contract between the parties and the manufacturer had not acted fraudulently. It was held that he did. The court took the view that if a manufacturer sells a product which cannot be examined either by the distributor or the ultimate consumer, then that manufacturer owes a duty of care to ensure that the product is free from any defect likely to cause harm.

Question 8

So remember that it is a result of the principles stated
in this decision that the established categories of duty of care came into existence because an examination of any of these established categories will reveal that they are based on what was said in that case.

Answer 8

Therefore, an answer on the issue of Negligence should start with Donoghue v Stevenson and then discuss the relevant established head of duty of care.

Question 9

Duty of care

Established categories

Answer 9

Motorists owe a duty of care to other road users.

Doctors owe a duty of care to their patients.

Manufacturers owe a duty of care to people who use their products.

Occupiers owe a duty of care to people who come onto their premises.

Employers owe a duty of care to their employees.

Question 10

Lord Atkin’s statement

Answer 10

Lord Atkin’s statement is referred to as the ‘neighbour’ principle and should be the first factor to be discussed when answering a question on whether a duty of care exists.
As the statement indicates, to discuss the issue of whether an individual is a neighbour at law also requires a discussion as to whether the harm was ‘reasonably foreseeable’:

Question 11

Bourhill v Young [1943] AC 92

Answer 11

An accident occurred as a result of the motor cyclist’s negligent driving. The plaintiff did not see the accident but only the result of it. She suffered nervous shock and sued the motor cyclist.

Question 12

Bourhill v Young [1943] AC 92 issue

Answer 12

Whether she was owed a duty of care in the circumstances. It was held that she was not because it was not reasonably foreseeable that the conduct of the motor cyclist would cause harm to the plaintiff. Accordingly, she was not owed a duty of care.

Question 13

Finally, the plaintiff must show that the salient features of the case are consistent with the existence of a duty of care

Answer 13

The salient features are those factors which the court will take into account when determining whether a duty of care exists.

Question 14

Sullivan v Moody

Answer 14

In that case, the wife accused the husband of sexually abusing their child who was taken to a doctor for examination. The doctor prepared a report which he gave to the Department of Welfare which conducted an investigation but found that there was insufficient evidence to support the allegations made. The husband subsequently developed a psychiatric illness and sued both the doctor and the relevant Department.

Question 15

Sullivan v Moody issue

Answer 15

Whether he was owed a duty of care by the doctor and/or the Department of Welfare. It was held that no such duty was owed by either. In reaching its conclusion, the court considered the following factors:

Question 16

Whether he was owed a duty of care by the doctor and/or the Department of Welfare. It was held that no such duty was owed by either. In reaching its conclusion, the court considered the following factors:

Answer 16

Coherency in the law

Conflicting duties of care

Indeterminate liability

Question 17

Coherency in the law

Answer 17

The law of negligence cannot be used to prevent the passing of information about the husband because it would conflict with law relating to defamation.

Question 18

Conflicting duties of care

Answer 18

If the doctor owed a duty of care to the husband as well as the child, this would create a conflict of interest because the doctor’s paramount duty is to the child’s welfare.

Question 19

Indeterminate liability

Answer 19

If the court were to hold that a duty was owed to husband, then there was no reason why this duty could not be extended to others such as immediate or extended family or friends.

Question 20

Breach of the Duty of Care

Answer 20

Once the duty of care is acknowledged, the second element which must be established is that of Breach of Duty. There are two tests applied here: Objective test and specific test

Question 21

Objective test

Answer 21

The first relates to the establishment of the required standard of care. That standard is that of a reasonable person. This is a general, objective test which establishes what would be required of a reasonable person in the circumstances.

Question 22

Applying the objective test establishes

Answer 22

Applying the objective test establishes whether the defendant failed to do what a reasonable person would have done in the same circumstance

Question 23

Imbree v McNeilly (2008) 236 CLR 510

Answer 23

McNeilly, a minor and without a driver’s licence, drove a vehicle in which Imbree was a passenger. Imbree new that McNeilly did not hold a driver’s licence but nevertheless allowed McNeilly to drive the vehicle. There was an accident in which Imbree was injured. Imbree sued McNeilly.

Question 24

Imbree v McNeilly (2008) 236 CLR 510

Issue

Answer 24

Whether McNeilly owed Imbree the same duty of care as another driver would owe to other drivers or whether, given his inexperience, the duty he owed was lower than that owed by a reasonable driver. It was held that McNeilly owed Imbree the same level of care as a reasonable driver and that the fact that McNeilly was to the knowledge of Imbree, inexperienced, did not detract from that level of duty.

Question 25

Specific test

Answer 25

The second test applies specific tests in order to establish whether the general standard required was breached in the circumstances

Probability of harm

The likely seriousness of the harm

The burden of taking precautions

The social utility of the defendant’s activity

Question 26

Probability of harm: Bolton v Stone [1951] AC 850

Answer 26

Held: although it was reasonably foreseeable that the plaintiff could be hit by the cricket ball, the likelihood of this occurrence was so small that no other reasonable person would have taken any further precautions.

Question 27

The likely seriousness of the harm: Paris v Stepney Borough Council [1951] AC 367

Answer 27

Held: The council owed the plaintiff a duty of care. The plaintiff was partially blind as a result of a war injury but nonetheless was employed in a garage without the supply of goggles to protect his face. Whilst attempting to loosen a bolt, pieces of metal flew off it, hit Paris in the eye, and rendered him totally blind. Given the nature of his injury and the dangerous work he was assigned to do, the court concluded that the council should have provided Paris with protective goggles.

Question 28

The burden of taking precautions: Latimer v AEC [1953] AC 643

Answer 28

Held: The duty owed to a worker had not been breached in the circumstances.

A flood had occurred which made factory floors slippery. The plaintiff slipped on the floor and sued the owner. The court said that the owner could have taken the precaution of closing the factory until the floors were dry but that to do so meant it would incur significant expenses. It concluded no reasonable person would have been required to incur such expense and that therefore, there had been no breach of the duty of care

Question 29

The social utility of the defendant’s activity: Watt v Hertfordshire County Council [1954] 1 WLR 835

Answer 29

Held: The council had not breached its duty of care to Watt. Watt was a fireman who attended an accident. The truck in which he was a passenger carried a jack which was needed to help free a woman trapped under a car. The truck carried a jack which normally held by a frame for safety reasons. That truck was not available on the day and the jack in the truck which Watt travelled in, was not safely reinforced. The truck braked suddenly and Watt was injured. He sued the council. It was held that the benefit such work provided to society –the saving of human life – outweighed the risk taken to drive the truck in an emergency situation without the normal safety procedure being adhered to. The court held that in such circumstances, there had not been a breach of the duty of care.

Question 30

Requirements to establish a breach ofduty

Answer 30

25/3/19

Question 31

3. Damage

Answer 31

Damage is the third element of negligence which requires proving three components:

Causation

Reasonable foreseeability

Remoteness

Question 32

Causation

Answer 32

That means establishing that the breach of the duty of care caused the harm. The plaintiff must establish that the careless act caused the harm, either directly or indirectly.

Question 33

Yates v Jones (1990) Aust Tort Reports 81-109

Answer 33

Yates injured in a car accident due to Jones’ carelessness. A visiting friend offered her heroin to help her to reduce her pain. As a result, she became addicted to heroin. In her action against Jones, the cost of the heroin to which she had become addicted formed part of the amount she claimed.
It was held the accident had not caused her addiction. The heroin given to her by her friend, had. Accordingly, that part of the claim was not compensable.

Question 34

Reasonable Forseeability

Answer 34

This usually means that the actual harm must have been reasonably foreseeable.

Question 35

Rowe v McCartney [1976] 2 NSWLR 72

Answer 35

Rowe was a passenger in a car which she had allowed McCartney to drive. As a result of McCartney’s negligence, an accident occurred as a result of which McCartney became a quadriplegic. Although Rowe only received minor injuries, she developed mental illness due to the guilt she felt regarding McCartney’s injury. When she sued McCartney, she included the costs associated with her mental illness. It was held that it was not reasonably foreseeable that the mental illness sustained by Rowe would result from the accident and was therefore not claimable.

Question 36

Remoteness

Answer 36

The harm sustained must not be too remote from the breach of duty.

Question 37

Wagon Mound (1) [1961] 1 All ER 404

Answer 37

Held that the damage sustained by a dock owner as a result of oil seeping from a tanker when that oil caught fire as a result of sparks from welding work being undertaken by the dock owner’s workers, was too remote from the breach of duty of care. It was not reasonably foreseeable that the seepage of oil would cause a fire and therefore the subsequent damage was too remote to be compensable.

Question 38

DEFENCES

Answer 38

Even if the plaintiff has established all three elements of the tort of negligence, the defendant can still avoid liability, either completely or partially, if they can establish the existence of one or more defences:

Voluntary assumption of risk

Contributory negligence

Question 39

Voluntary assumption of risk

Answer 39

This defence is available to the defendant if that party can prove that the plaintiff was aware of the risk but nonetheless was prepared to assume that risk. If this argument is established, it constitutes a complete defence to an action in negligence. Therefore, it is used if one party only (the plaintiff) is responsible for the harm: Rootes v Shelton (1967) 116 CLR 383

Question 40

Rootes v Shelton (1967) 116 CLR 383

Answer 40

The plaintiff was waterskiing when the defendant who was driving the boat, drove too close to a boat, thereby causing the plaintiff injury. When sued, the defendant argued that waterskiing was a risky sport and that the plaintiff had voluntarily assumed the risks associated with that sport, when he agreed to waterskii. Held: The cause of the injury was the boat being driven too close to another moored boat and therefore, the defendant’s actions had caused the injury. The injury had not been caused by any assumption of risk on the part of the plaintiff which was related to the sport.

Question 41

Contributory negligence

Answer 41

If it can be established that the plaintiff contributed in some way to their own loss or injury, liability will be apportioned between the defendant and the plaintiff. This defence is therefore only a partial defence and if applied, will only be effective to reduce the amount of the plaintiff’s damages, not to negate the entire action in Negligence.

Question 42

Ingram v Britten [1994] Aust Tort Reports 81-291

Answer 42

Ingram drove a tractor belonging to Britten at excessive speed and injured himself. The tractor was not fitted with a metal frame to protect the driver. Held: Both parties had contributed to the injuries sustained by Ingram and the damages were reduced according to the degree to which each party had contributed to the resulting injury.

Question 43

Other defences include:

Answer 43

Barristers’ immunity

Volunteers’ immunity

Emergency service providers’ immunity

Compliance by professionals with standard practice.

Question 44

Occupier’s liability

Answer 44

The issue as to whether an occupier of property owes a duty of care to those who enter it, is relevant in two circumstances:

Invitees
Trespassers

Question 45

Invitees

Answer 45

An occupier of premises owes a duty of care to all persons legally entering the premises to ensure that the premises are safe.

Question 46

Australian Safeway Stores Pty Ltd v Zaluzna

Answer 46

While shopping on a rainy day, Zaluzna slipped on a wet floor near the entrance. Held: The owners of the store owed Zaluzna a duty of care according to the basic principles of negligence. In other words, in addition to being a ‘neighbour’ under Donoghue v Stevenson, she was also owed a duty of care as an invitee onto the premises. The duty of care owed under either heading, was the same.

Question 47

Trespassers

Answer 47

Does an occupier also owe a duty of care to people who are on their premises without their permission? The issue of whether the duty owed to invitees can be extended to trespassers was discussed in two cases

Question 48

Hackshaw v Shaw (1984) 155 CLR 614

Answer 48

A farmer suspected that his petrol was being stolen and caught the culprit in the act. The farmer, who was carrying a rifle, fired a shot at the tyres of the car to stop the culprit from leaving, but hit the front car passenger door. Unknown to the farmer, someone was hiding in the front section of the car and was hit by the shot. The injured person sued the farmer and the issue was whether the farmer (occurpier) owed the trespasser a duty of care. Held: The farmer owed the trespasser a duty of care because it was foreseeable that there may be a passenger in the car and that firing the rifle at night could cause injury.

Question 49

Bryant v Fawdon [1993] WASC 38

Answer 49

The plaintiff was walking home at the early hours of the morning and needed to use a toilet. She climbed a 1.8m high fence and trespassed on commercial premises to enter an unlocked toilet block. P used the toilet in darkness and attempted to flush it. She did not see the modern push button cistern but instead tried to flush a disused concrete cistern resting on timber beams overhead. The disused cistern fell on her causing serious injuries. Held: No duty of care was owed by D to P because it was not reasonably foreseeable that P, as a trespasser attempting to use a toilet (without a chain) in darkness, would be harmed by D’s failure to remove the disused cistern. So whether a duty of care is owed to a trespasser is
dependent on the facts.

Question 50

CARELESSLY CAUSING FINANCIAL HARM

Answer 50

Harm to the person or property of a third party. Where the plaintiff suffers pure economic loss as a result of harm caused by the defendant to the person or property of another person.

Question 51

Defective products

Answer 51

The product or service is defective as a result of negligence and the plaintiff suffers pure economic loss as a result of the defect.

Question 52

NEGLIGENT MISSTATEMENT

When a person is giving advice they owe a duty of care if:

Answer 52

the advice is of a business or serious nature

they know or should know that the other person intends to rely on the advice

it is reasonable in the circumstances for the other person to rely on the advice.

Question 53

NEGLIGENT MISSTATEMENT extra tidbit

Answer 53

The person giving advice may owe a duty of care even if they are not a professional adviser such as a lawyer or accountant.

Question 54

Hedley byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465

Answer 54

HB were advertising agency. They had a client called Easipower for which they needed to take out some advertising space. Hedley Byrne asked its bank (National Provincial Bank) to get a report from Easipower’s bank (Heller & Partners) as to Easipower’s financial standing. Heller provided the report which contained a Disclaimer of Liability in the event that the information in the report was found to be incorrect.
The Nation Provincial Bank received the report and passed it on to Hedley Byrne – its client. Hedley Byrne relied on the report which proved to contain inaccurate information – Easipower was in fact, in a bad financial state and was subsequently liquidated.
Hedley Byrne suffered financial loss. It could not sue Easipower because Easipower had no money. So it sued Heller on the basis of the financial report provided. The bankers denied any Duty of Care to a third party when purely economic losses were at issue.

Up until that time, no duty care was owed to a defendant who suffers pure economic loss as a result of another’s negligent misstatement.
Held: That Heller was not liable for the financial loss sustained by Hedley Byrne because of the Disclaimer clause contained in the financial report (Ratio).
But it added that if the Disclaimer had not existed, it would have found Heller liable for all the financial loss suffered by Hedley Byrne (Obiter).
The court said that where a special relationship existed between the parties, then a duty of care was owed to prevent the incurring of financial loss.

Question 55

The court explained that a special relationship existed where:

Answer 55

Advice was given by one who was either an expert or held themselves out to be so.

That advice was given in a business setting.

It was either known or should have been known that the advice would be relied on.

It was relied on.

It was reasonable to rely on the advice.

The advice was given negligently.

As a result, economic loss is incurred.

Question 56

The Obiter in Hedley’s case

Answer 56

It should be noted that in Hedley’s case, the obiter of the court’s decision was extremely important because it was the first time that a court had acknowledged that financial harm incurred as a result of another’s negligent misstatement was a legitimate head of action in a court of law.
But note no such liability will attach unless the special relationship exists between the parties.

Question 57

L Shaddock & Assoc Pty Ltd v Parramatta City Council

Answer 57

Shaddock bought a property in Parramatta to redevelop. Before doing so, it enquired with the Parramatta City Council as to whether the Council had any interest in the property which would impact on the developer’s proposed use of the land. The council said no, but that information was incorrect. In fact, the Council had a road widening proposal which affected the property.
Shaddock bought the property relying on the Council’s advice which it provided by way of a Council Certificate. It was only when Shaddock wanted to commence work on the property that it was discovered that the information provided by the Council was incorrect.

ISSUE: Did Council owe a duty of care to Shaddock not to provide this information negligently?

Question 58

ISSUE: Did Council owe a duty of care to Shaddock not to provide this information negligently?

Answer 58

Held: The council owed duty of care in relation to provision of info where:

A party carries on a business

Provides advice in course of business

That party knows or ought to know that recipient is relying on that information

The information is relied on

The information is provided negligently

Then a duty of care is owed by the defendant to prevent the incurring of financial harm.

Question 59

This is how the law actually changes

Answer 59

This is how the law actually changes – a court adopts an obiter and turns it into a ratio.

Question 60

A person giving advice will owe a duty of care to a third party if:

Answer 60

they give their client business or serious advice knowing that the client will communicate that advice to the third party

the advice is likely to lead the third party to enter into a particular type of transaction;

It is likely that the third party will suffer financial loss if they enter into that transaction and the advice is wrong.