Table of Contents

Table of Contents

Table of Contents ... 1

Duty of Care ... 2

1. Is Duty of Care an established category? ... 2

2. Is it a CLEAR POSITIVE ACT by a PRIVATE INDIVIDUAL which DIRECTLY CAUSES PHYSICAL HARM to plaintiff? ... 2

3. Was there reasonable foreseeability of damage of the general nature to that class of plaintiff? ... 2

4. Are any salient features fulfilled? (limitation devices) ... 2

5. Special Cases ... 3

A. Selected special relationships/injuries ...3

B. ‘No duty’ cases and public policy ...3

Breach ... 3

1. The standard of care ... 3

1. Was there reasonable foreseeability of risk? ...3

2. Was there reasonable response to risk? ...3

3. Were there warnings and obviousness of risk? ...4

4. Public authorities...4

2. The reasonable person ... 4

3. Proving breach ... 4

Causation ... 5

1. Factual causation and necessary condition ... 5

2. Multiple causes and defendants ... 5

3. Remoteness of damage (and foreseeability) ... 6

Defences ... 7

1. Contributory negligence ... 7

2. Voluntary assumption of risk ... 8

Vicarious Liability ... 8

Elements ... 8

1. ‘Relationship’ (employee or contractors) ...8

2. Course and scope of employment ...8

3. D’s negligence not employers ...9

Duty of Care

1. Is Duty of Care an established category?

i. Doctor/patient: Rogers v Whitaker provide information and advice ii. Parent/child: Smith v Leurs parents reasonably control child iii. Rescuers: Stuart v Kirkland-Veenstra not liable unless acted recklessly iv. Road users: Chapman v Hearse duty to exercise reasonable care 2. Is it a CLEAR POSITIVE ACT by a PRIVATE INDIVIDUAL which DIRECTLY CAUSES

PHYSICAL HARM to plaintiff?

YES: only need to consider 3 NO: need to consider 3 & 4

3. Was there reasonable foreseeability of damage of the general nature to that class of plaintiff?

•

‘general nature’: Chapman v Hearse precise sequence unnecessary

•

‘class of plaintiff’: Donoghue v Stevenson neighbour principle

o

Who in law is my neighbour? → persons so closely and directly affected by my acts that I out reasonably have them in consideration

o

Proximity be not confined to mere physical proximity → extend to such close and direct relations that the act complained of directly affects a person

4. Are any salient features fulfilled? (limitation devices) (a) Vulnerability/reliance: Agar v Hyde

where P is in a vulnerable position and relies on D to prevent against the risk from eventuating, vulnerability/reliance as a salient feature is established (b) Assumption of responsibility/reliance: Modbury Shopping Centre

No duty exists where the risk of harm is not controlled by D – D did not assume responsibility over the risk

(c) Control: Graham Barclay Oysters, Stuart v Kirkland-Veenstra, Sydney Water, Agar, Modbury

Stuart: ‘power is therefore a necessary condition of liability but it is not a sufficient condition’

Agar: D did not have any control over the specific game – not enough power to influence how other players play rugby – Too many intervening levels (game officials, other players etc…)

Modbury: D did not control the harm – cannot control the actions of third parties. D was not even aware of the risk → unpredictability of criminal behaviour. Physical state of premise can be controlled, but the physical state of the premise did not cause the harm

(d) Conflicting duties/coherence/‘policy’: Sullivan v Moody, Oysters

Harm is reasonably foreseeable + existence of one or more salient features but still no duty of care (legal policy reasons)

Indeterminate liability → scope of liability cannot be determined – i.e. large class of plaintiffs with huge financial compensatory sums for long periods of time →to promote reasonable behaviour in society

Policy – not court’s role to formulate policy for community – Court is ill-

equipped to deal with issues of government policy – beyond court’s duty