Week 4 Important Flashcards
Outline the elements necessary to prove to succeed in the tort of negligence.
Duty of care
Breach of duty of care
Damage caused by the breach which is reasonably foreseeable.
There are two defences to negligence
Voluntary assumption of risk
Contributory negligence
How do we test whether one person owes another person a duty of care?
10/4/19
Cameron was attending a rock concert in the park. He had not purchased a ticket but had climbed over a two metre fence to join the spectators who had purchased tickets. Strong wind and heavy rain forced the spectators to take cover from a storm under a temporary tarpaulin set up by the organisers to protect the musicians and their equipment. During the storm the tarpaulin became heavy with water and collapsed onto the musicians, their equipment and spectators who had taken shelter under it. Cameron’s back was seriously injured. As a result of the accident he required emergency surgery. Cameron was unable to complete his university studies that year. Another spectator standing nearby, Alec, saw Cameron have his back crushed and consequently suffered psychological distress.
First issue: is the rock concert organiser liable in negligence to Cameron?
To succeed in an action in negligence, the plaintiff must prove on the balance of probabilities that (a) a duty of care is owed, (b) that the duty of care has been breached and (c) that the breach caused damage which is not too remote from the breach.
Duty of care - neighbour principle
Duty of care - established duty of care
Duty of care - salient features
Duty of care - Breach in the standard of care
Breach must have caused damage
Defences
Established duties of care
- • motorists owe a duty of care to other road users
- • doctors owe a duty of care to their patients
- • solicitors owe a duty of care to their clients
- • 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
- • architects owe a duty of care to the people who occupy the buildings they design
- • agents owe a duty of care to their principal
- • directors owe a duty of care to the company
- • employers owe a duty of care to their employees.
Duty of care - neighbour principle
To establish a duty of care, the plaintiff must satisfy the “neighbour principle” established by Lord Akin in Donoghue v Stevenson. Under the neighbour test, a person must take reasonable care to avoid acts or omissions that they can reasonably foresee would be likely to injure their neighbour. In law, your neighbour is “those persons so closely and directly affected by your acts that you ought reasonably have them in contemplation as being so affected when directing your mind to the acts or omissions which are called into question.”
Duty of care - established duty of care
It is also useful to consider whether there are any relevant established duties of care. Precedent has established that occupiers owe a duty of care to entrants to the premises. With respect to lawful entrants, occupiers owe a duty of care to avoid any reasonably foreseeable risk of injury (Australian Safeway Stores v Zaluzna). In some circumstances, a duty of care is also owed to uninvited visitors such as trespassers. In Hackshaw v Shaw, it was held that the defendant farmer owed a duty of care to a trespasser to avoid “ultra-hazardous” acts (firing bullets). However, in Bryant v Fawdon the occupier was held not to owe a duty of care to the plaintiff trespasser, given that the injury was not reasonably foreseeable (the plaintiff climbed a 1.8 metre fence to get to a toilet and was knocked unconscious when she attempted to flush the toilet’s disused concrete cistern in the dark).
Duty of care - Breach in the standard of care
(b) There must be a breach in the standard of care. A person breaches their duty of care if they fail to meet the standard of care that the reasonable person is required to show to avoid unreasonable risk of harm (Imbree v McNeilly). The reasonable person need not respond to a risk that is “far-fetched and fanciful”.
How a reasonable person would act in the shoes of the defendant may be gauged by reference to certain criteria, including the probability of the risk of injury (Bolton v Stone), the seriousness of the consequences (Paris v Stepney Bourough Council), the possibility of eliminating those risks (Latimer v AEC), compliance with usual practice (Mercer v Commissioner for Road Transport and Tramways) and the utility of the defendant’s conduct (Watt v Hertfordshire County Council).
Breach must have caused damage
(c) The breach must have caused damage. This is established by way of two tests:
(i) causation – ‘but for’ the breach the damage would not have happened (Yates v Jones, other cases: Chappel v Hart; Cork v Kirby McLean); and
(ii) remoteness – is the damage reasonably foreseeable? (The Wagon Mound case).
Defences - negligence
Once negligence is established, it is necessary to consider whether any defences apply. If the defendant can show the plaintiff voluntarily assumed the risk, the defendant escapes all liability (Agar v Hyde). In the case of contributory negligence, the plaintiff’s compensation is reduced to the extent that the court considers just and equitable having regard to the plaintiff’s share in the responsibility for the damage (s 26 Wrongs Act 1958 (Vic)).
Duty of care - salient features
Secondly, as shown in Sullivan v Moody, the salient features of the case must justify the existence of a duty of care. Relevant factors here are the rock concert organiser’s control over the safety of the concert venue and the vulnerability of an entrant in the venue.
