LAW5003 Principles of Torts Exam Notes 9
Negligence
Pursuant to s43 of the Wrongs Act 1958 (Vic), negligence means a failure to exercise reasonable care. To establish negligence P must prove, on the balance of probabilities, that his/her [harm] was caused by a breach of the duty of care owed by D. Note: any
provisions referred to below are from Wrongs Act unless stated otherwise.
A. Was there a duty of care (DoC)?
P must prove that D owed them a DoC as D is only legally liable in negligence to those people who they owe a DoC to. This is a question of law and it is therefore open to courts to regulate when they will and when they won’t.
Duty Duty to take reasonable care
1. Is the DoC as per settled law?
There is DoC • Manufacturer and consumer
• Employer and employee
• Occupier and entrant
• Doctor and patient as per Rogers v Whitaker
• Teacher/school authority and pupil as per NSW v Lepore
• Users of a highway
There is no DoC • Immunity for barristers and solicitors as per D’Orta-Ekenaike v Victorian Legal Aid confirmed in Attwells v Jackson Lalic Lawyers
o Protects any legal practitioner’s giving advice, leads to decision o Restricted to work done in court, work done leading to decision o Settling case is not covered by immunity
• Parents where there has been no positive act as per Robertson v Swincer
Heaven v Pender Facts: P was employed as painter, painting ships, his employer was employed by D to come into D’s property and paint a chip in a dry dock. D set up the ship so that painters could come in, the set up was faulty it has been previously damaged in a dire, P injured
ISSUE: Employer and employee
Held: unanimously found for P, DoC was owed by D to P
Majority: used specific relationship approach – previous law that showed occupiers owed DoC to people they invited into their premises, invitation extended to appliances, and tools, injured by scaffolding therefore could establish DoC.
Minority: (Brett MR) – whenever someone is doing something which a person of ordinary skill would recognise is posing a risk of injury to someone else then there is a duty to take reasonable care to avoid causing that injury
Donoghue v Stevenson Facts: P went to café, friend ordered for P an ice cream float with ginger beer, café brought out the order, took off metal lid and poured rest some of the ginger beer onto the ice cream, her friend poured rest of ginger beer, decomposing snail fell out of bottle, couldn’t sue café owner: in negligence: couldn’t prove café owner had done anything wrong (opaque bottle), no contract btw manufacturer and P, sued manufacturer in the law of negligence
Held (3:2):
Minority: no duty – no relationship btw manufacturer P according to prior law/ precedent Majority: D did owe P a DoC.
Lord Atkin
• Must take reasonable care to avoid acts, or omissions which you can reasonably foresee would be likely to injure your neighbour
• Neighbour: persons who are so closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question
D’Orta-Ekenaike v Victorian
Legal Aid Held: did not remove immunity – policy reasons
• Inconsistency with advocates’ duty to the court, higher duty to the court
• Notion of finality
o Litigation would have to be re-run, re-run would be skewered cannot look at contributions by the judge or witnesses > both decisions would have to stand Since DoC as per settled law cannot be established, P must establish that it was reasonably foreseeable that if D was careless in engaging in the general activity in question, XYZ in this case, that P, either as an individual, or as a member of a particular class of people, might have been harmed. Relevant salient features must also be taken into consideration as per Sullivan v Moody.
LAW5003 Principles of Torts Exam Notes 10 2. Was injury reasonably foreseeable?
What has to be reasonably foreseeable?
As per Chapman, it is not necessary for P to show that the precise manner in which their injuries were sustained was reasonably foreseeable, it is sufficient if it appears that injury to a class of persons of which they are a member of might reasonably have been foreseen as a consequence.
What has to be reasonably foreseeable? (the injury)
As per Chapman v Hearse in order to establish prior existence of a DoC with respect to a P subsequently injured as the result of a sequence of events following a D’s carelessness
• Not necessary for P to show that the precise manner in which his injuries were sustained was reasonably foreseeable
• Sufficient if it appears that injury to a class of persons of which he eas one might reasonably have foreseen as a consequence
Considerations • Manner in which the risk of injury arose – ie identify the general activity that you think the def did carelessly
• What is the general class of injury on these facts? (ie personal injury, property damage, mental harm or pure economic loss)
• What class of persons might possibly be put at some risk of injury of the same general class as the plaintiff suffered if the defendant fails to take reasonable care?
• Is the plaintiff one of those people?
Chapman v Hearse Facts: Chapman was driving negligently, smashed into the car in front of him, causing cars to
overturn, Chapman thrown clear of his car and onto road, is injured, at night time, the next person on the scene was a doctor he pulled over to help Chapman, another car ran over the doctor and killed him, Hearse sued by doctor’s family, Hearse sued Chapman
ISSUE: did Chapman owe the doctor a DoC?
Held: unanimously found that Chapman owed doctor DoC.
When is something reasonably foreseeable?
If it’s not unlikely As per Chapman v Hearse if it’s not unlikely then it’s reasonably foreseeable. It was sufficient in the circumstances of this case to ask whether a consequence of the same general character as that which followed was reasonably foreseeable as one not unlikely to follow a collision btw two vehicles on a dark wet night upon a busy highway.
Not unlikely to occur As per Caterson v Commisioner for Railways (NSW) it has to be not unlikely to occur, meaning that it has to be more than a theoretical possibility or an unreal possibility. It is also not a probability question and not a fanciful and farfetched.
Caterson v Commisioner for
Railways (NSW) Facts: P at train station, got on train to help friend, train started pulling away without a warning, P ha brought his child, didn’t want to leave his child, jumped off train, seriously injured himself
Issue: Did railway owe DoC to someone that wasn’t a client?
Held: (Barwick CJ) not unlikely to occur: has to be more than a theoretical possibility or an unreal possibility
• Not a probability question
• Not fanciful or farfetched 3. What are the salient features of the case?
i. Creation of conflicting duties
Will the findings in this instance conflict with an already existing duty?
In Sullivan it was decided that finding a duty in this instance conflicted with an already existing duty or legal obligation, doctors had the duty to report any suspicions of children being sexually assaulted.
ii. Conflicts in law
Is there a better suited area of law under which P’s action should be brought?
Other – Yes (-1) In Sullivan, it was decided that there was a different area of law, defamation, that would be better suited for P’s actions.
PEL – NO (+1) In Perre it was decided that there were no other are of law better suited.
In Johnson Tiles, it was held that the existence of a statutory regime regulating the field, would result in points against DoC.
iii. Exposure of D to indeterminate liability Is the class of persons ascertainable?
PEL – Yes (+1) Determinable with respect to business and domestic consumers of gas but not with respect to the employees – clearly identify the group/class of people as per Johnson Tiles
Other – NO (-1) In Sullivan it was decided that it was hard to determine who the Ds were liable to.
PEL – No (+1) In Perre it was decided that there was no indeterminate liability as the class of persons affected was ascertainable (potato growers or processors located within 20 km radius of affected land.
LAW5003 Principles of Torts Exam Notes 11 iv. Vulnerability of P to D’s carelessness
Was P vulnerable to the harm in that they couldn’t reasonably be expected to guard against it?
PEL – Yes (+1) In Perre, it was held that P were vulnerable in that they couldn’t reasonably be expected to have guarded against the harm.
PEL – NO (-1) In Johnson Tiles, the court decided if the P could have taken reasonable steps to protect themselves but didn’t it would be point against DoC.
Pre-existing relationship between parties Control by D of activity causing harm
Did D broadly control the activities that ultimately caused the damage to P? (Act v Crawly, Perre) Assumption of responsibility by D/reliance by P on D
Pel – Yes (+1) P has relied on D, and D has assumed responsibility, this is therefore a point towards DoC as per Johnson Tiles.
PEL – Yes (+1) In Perre, the court decided that D had knowledge of the risk of economic harm to P.
Reluctance to interfere with D’s legitimate economic activity/ autonomy
PEL – NO (-1) The court has shown reluctance to impose a duty of pure economic loss where to do so will interfere with a contractual regime as per Johnson Tiles. Because
• 1. The substantive activity giving rise to a duty would interfere with and not promote D’s business; and
• 2. A duty would be co-extensive with duty already owed to employees
PEL – NO (-1) In Perre the court avoided interfering with D’s legitimate business activity or personal autonomy, as a duty of care would simply be co-extensive to that already owed regarding property damage and hence no further burden on business activity.
PEL – NO (-1) As per Johnson Tile, a court will be reluctant to impose a duty for PEL where to do so will interfere with a contractual regime.
Floodgates
Would finding a DoC in this case risk flooding the courts with claims of liability?
Other – Yes (-1) In Sullivan, it was decided that finding a DoC would risk flooding the courts with claims of liability.
Illegality On the part of P
Yes – (-1) If P has engaged in illegal activity then this could be a point against DoC.
Sullivan v Moody Facts: Sullivan father of little girl, mother suspicious of Sullivan sexually abusing child, doctor confirmed child being sexually abused, no criminal charges
• In actual fact not sexually abusing child
• Sued doctors, department for negligence alleging they owed him DoC to take reasonable care when conducting investigations, and they had been negligent in causing him mental illness
Issue: Whether D’s owed Doc to Sullivan Held: Sullivan NOT owed DoC
• Reasonable foreseeability needed but not essential
• Law would subject citizens intolerable burden of potential liability & constrain freedom
• Tort of negligence would subvert many other principles of law, and statutory provision, which strike a balance of rights and obligations, duties and freedoms. D will be liable … for failure to take reasonable care, certain kind of foreseeable harm to P, in circumstances where law imposes a duty to take such care
Therefore, it appears that D owed P DoC Pure Economic Loss (PEL)?
P has suffered PEL because the loss suffered was not physical damage to the person or property. As per Caltex Oil, P must establish that the risk of economic loss was reasonably foreseeable, salient features must also be considered.
As per Caltex Oil As per Caltex Oil, courts are willing to find that D owed O a DoC in PEL cases provide that certain elements are present: such as
• Financial damage suffered as a result of a negligent act
• Not accompanied by any physical damage
• Not a ‘real’ loss to the society
D may owe P a duty not to cause harm where the harm follows from damage to a third party’s property as per Caltex Oil.
Consequential Economic loss Economic loss that is consequence of personal injury or property damage caused by D to the P.
e.g. loss of earning capacity, cost of care, lost profits while P’s property is being repaired
