1. law, govt and politics

LAW OF TORTS
Weekend Lecture 1B
Summer 2005-06
Lecturer: Greg Young
greg.young@lawyer.com
Tort of Negligence
- Duty of Care
NEGLIGENCE AND FAULT IN
TORTS
FAULT
INTENTION
NEGLIGENCE
TRESPASS
CARELESS
NEGLIGENCE
the action
NEGLIGENT TRESPASS
• Intentional or negligent act of D
which directly causes an injury to the P
or his /her property without lawful
justification
• The Elements of Trespass:
–
–
–
–
fault: intentional or negligent act
injury must be direct
injury may be to the P or to his/her property
No lawful justification
NEGLIGENT TRESPASS
• While trespass is always a direct tort, it is not
necessarily an intentional act in every
instance. It may be committed negligently
• Negligent trespass is an action in trespass not
in negligence:
• Where the facts of a case permit, it is possible
to frame an action in both trespass and
negligence on the same facts
• Williams v. Molotin (1957) 97 CLR. 465.
What is Negligence?
• It is the neglect of a legal duty
• It involves the three elements of
• duty
• breach;
• resultant damage
Negligence: The Elements
Duty of care
Negligence
Breach
Damage
Negligence: The Early Cases
• Heaven v. Pender (1883)
• (Defective equipment supplied to plaintiff painter)
• The dicta of Brett MR:
• whenever one person is by circumstances placed in such a
position with regard to another, that every one of ordinary
sense who did think would at once recognise that if he did
not use ordinary care and skill in his own conduct with
regard to those circumstances he would cause danger or
injury to the person or property of the other (person) a duty
arises to use ordinary care and skill to avoid such danger.
Donoghue v. Stevenson
• Ginger beer-decomposing snail-P has shockgastroenteritis
• No privity of contract between P and D. Issue
was whether D owed P a duty
• Dicta of Lord Atkin
• You must take reasonable care to avoid acts or omissions
which you can reasonably foresee would be likely to injure
your neighbour. Who then in law is my neighbour? The
answer seems to be persons who are closely and directly
affected by my act that I ought reasonably to have them in
mind to the acts or omissions
NEGLIGENCE
• Grant v Australian Knitting Mills (1936)
• The application of the rule in D v S
• a manufacturer of products, which he sells in such a
form as to show that he intends them to reach the
ultimate consumer in the form in which they left him
with no reasonable possibility of intermediate
examination, and with the knowledge that the absence
of reasonable care in the preparation or putting up of
the products will result in an injury to the consumer’s
life or property, owes a duty to the consumer to take
that reasonable care
NEGLIGENCE: THE DUTY OF
CARE
• The dicta of Lord Atkin in Donoghue v Stevenson:
– whenever one person is by circumstances placed in such a position
with regard to another, that every one of ordinary sense who did
think would at once recognise that if he did not use ordinary care
and skill in his own conduct with regard to those circumstances he
would cause danger or injury to the person or property of the other
(person) a duty arises to use ordinary care and skill to avoid such
danger.
– You must take reasonable care to avoid acts or omissions which
you can reasonably foresee would be likely to injure your
neighbour/another
Negligence: (Duty of Care)
• The Duty of care is the obligation to avoid
acts or omissions which are reasonably
foreseeable to cause damage to another.
• When does one owe a duty of care?
• Whenever one is engaged in an act which
he or she can reasonably foresee would be
likely to injure another person, one owes a
duty of care to that other person
The Modern Requirements for
the Duty of Care
Jaensch v. Coffey (1984) per Deane J. p587-8
• A duty situation would arise from the following
combination of factors
• A reasonable foreseeability of real risk of injury
to P either as an identifiable individual or a
member of a class of persons
• The existence of proximity between the parties
with respect to the act or omission
• Absence of any rule that precludes such a duty
What is Reasonable
Foreseeability?
• Reasonable foreseeability presupposes an objective
or a reasonable person’s standard
• The reasonable person is an embodiment of
community values and what the community expects
of a responsible citizen
• The concept allows us to evaluate D’s conduct not
from his or her peculiar position, but from that of a
reasonable person similarly placed
• Reasonable foreseeability is a question of law
Reasonable Foreseeability: Case
Law
• Nova Mink v. Trans Canada Airlines [1951]
(Air traffic noise causing minks to eat their young ones-No
foreseeability)
• Palsgraf v. Long Island R.R. Co. (1928)
(Railway guards helping falling passenger-fireworks
explosion causing injury to plaintiff.-No foreseeability)
• Chapman v. Hearse (1961)
(Car accident-Dr. stops
to help-gets killed by another vehicle-action against D who
caused initial accident- Foreseeability upheld)
The Scope of Reasonable
Foreseeability
• United Novelty Co. v. Daniels (1949)
(Workers cleaning coin operated machine with flammable
substance-rat in machine runs into fire place causing fire
damage and death-Foreseeability upheld)
• Jaensch v. Coffey (1984) (Car accident-spouse
goes to hospital to see injured partner-suffers shock from
what she sees and hears of husband’s condition-action
against D who caused accident-Proximity-DutyForeseeability upheld)
Proximity
• Jaensch v. Coffey (1984) (Car accident-spouse goes to
hospital to see injured partner-suffers shock from what she sees
and hears of husband’s condition-action against D who caused
accident-Proximity-Duty)
• Gala v. Preston (1991)
(Duty relationship between parties
engaged in an illegal enterprise-No proximity-No duty)
• Nagle v. Rottnest Island Authority (1993) (P injured
while diving into a rocky pool- pool promoted and operated by DProximity, Duty upheld) Held: the board, by encouraging persons
to engage in an activity, came under a duty to take reasonable care
to avoid injury to them and the discharge of that duty... require
that they be warned of any foreseeable risks of injury associated
with the activity so encouraged
The Main Features of Proximity
PROXIMITY
Degree of proximity
Physical
Circumstantial
Causal
Evaluation
Evaluation
of legal
and policy
considerations of
what is fair
and reasonable
DUTY CATEGORIES: To whom
is duty owed?
• One owes a duty to those so closely and directly
affected by his/her conduct that she ought reasonably to
have them in contemplation as being so affected when
undertaking the conduct in question.
• Examples:
- Employer/Worker
- Driver/Other Road Users
- Doctor/Patient
- Consumers, users of products and structures
• Donoghue v Stevenson
• Voli v Inglewood Shire Council
• Bryan v Maloney
– Users of premises etc.
• Australian Safeway Stores v Zaluzna
Proximity - Criticised
• Sullivan v Moody (2001) 207 CLR 562
Facts – In separate proceedings, fathers were denied access to their children as Dr
Moody (employed by the SA Dept of Community Welfare) incorrectly
diagnosed sexual abuse; The fathers sued in negligence for psychiatric injury.
Judgment – Appeals dismissed as no duty of care exists to protect a suspected
abuser from emotional distress
Gleeson CJ, Gaudron, McHugh, Hayne & Callinan JJ:
[573] “…foreseeability of harm is not sufficient to give rise to a duty of care”
[578] “The formula is not ‘proximity’. Notwithstanding the centrality of that
concept, for more than a century … it gives little practical guidance in
determining whether a duty of care exists in cases that are not analogous to
cases in which a duty has been established”
Unborn Child
• The unborn child:
– The duty is not simply to take reasonable care in the abstract but to
take reasonable care not to injure a person whom it should reasonably
be foreseen may be injured by the act or neglect if such care is not
taken (Winneke CJ/ Pape J)
– There can be no justification for distinguishing between the rights… of
a newly born infant returning home with his /her mother from hospital
in a bassinet hidden from view on the back of a motor car being driven
by his proud father and of a child en ventre sa mere whose mother is
being driven by her anxious husband to the hospital on way to the
labour ward to deliver such a child ( Per Gillard J in Watt v Rama)
- Lynch v Lynch (1991)
• Wrongful life cases
– Harriton (by her tutor) v Stephens; Waller (by his tutor) v
James & Anor; Waller (by his tutor) v Hoolahan [2004]
NSWCA 93 (29 April 2004)
RESCUERS
• There are two separate issues in rescue:
– The ‘duty’ to rescue
– The duty of care owed to the rescuer
• There is no positive legal obligation in the
common law to rescue - The law does not ‘cast a duty
upon a man to go to the aid of another who is in peril or
distress, not caused by him
• There may however exist a duty to rescue in
master servant relationships or boat owner and
guest relationships for instance
– Horsley v Macleran (The Ogopogo) (1971) 22 DLR
• One is only required to use reasonable care and
skill in the rescue
THE DUTY OWED TO
RESCUERS
• The rescuer is generally protected : torts recognizes the
existence of a duty of care owed to the rescuer
• The issue of volenti-non fit injuria: This principle does
not seem to apply in modern tort law to rescue situations
– Note however the case of Sylvester v GB Chapman Ltd (1935)
:attack by leopard while attempting to put out a smoldering
cigarette in straw
THE DUTY OWED TO
RESCUERS
‘The cry of danger is the summons to relief. The law does not
ignore these reactions of the mind.. It recognizes them as normal…
and places their effects within the range of of the natural and the
probable [and for that matter the foreseeable] per Cardozo J in
Wagner v International Railway Co. (1921)
- Chapman v Hearse
- Videan v British Transport Commission (1963) (rescue
attempt to get a child trespassing on railway line)
Rescuers may recover for both physical injuries and nervous shock
- Mount Isa Mines v Pussey (1970)
The US fire-fighter’s Rule does not apply in Australia and the UK
- Ogwo v Taylor (1988) AC 431
Unforeseeable Plaintiffs
• In general the duty is owed to
only the foreseeable plaintiff
and not abnormal Plaintiffs.
–Bourhill v Young [1943] AC 92
–Levi v Colgate-Palmolive (1941)
–Haley v L.E.B. [1965] AC 778
IMPACT OF THE CIVIL
LIABILITY ACT ON THE DUTY
OF CARE
• The Civil Liability Act 2002 together with the
Civil Liability Amendment (Personal
Responsibility) Act 2002 govern the law of
negligence in NSW.
– The Civil Liability Act 2002 was enacted 28th
May 2002 and received assent on 18 June 2002
• Rationale behind the legislation:
– to limit the quantum of damages for personal injury and
death in public liability instances; resultantly lowering
insurance premiums.
– to discourage ‘over litigation’, by the imposition of
restrictions and obligations and responsibilities upon
plaintiffs and counsel
The Rationale for Reform
• [I]t's my view that this country is
tying itself up in tape because of over
litigation, a long-term trend to see us
litigate for everything, to try to settle
every problem in our lives...by getting
a big cash payment from the courts....a
country as small as ours can't afford to
have the American-style culture of
litigation". (Bob Carr)
The Rationale for Reform
• ‘We need to restore personal responsibility and
diminish the culture of blame.That means a
fundamental re-think of the law of negligence, a
complex task of legislative drafting.
There is no precedent for what we are doing,
either in health care or motor accident law, or in
the legislation of other States and Territories.
We are changing a body of law that has taken
the courts 70 years to develop’ (Bob Carr)
The Approach to Reform:
Government’s View
• We propose to change the law to exclude
claims that should never be brought and
provide defences to ensure that people who
have done the right thing are not made to pay
just because they have access to insurance
• We want to protect good samaritans who help
in emergencies. As a community, we should be
reluctant to expose people who help others to
the risk of being judged after the event to have
not helped well enough (Bob Carr)
Torts Law Reform: Stage 1
• The 1st stage aimed both at the
number of claims as well as at the
cost of claims
– restriction of legal advertising, minimising the
promotion of claims and a restriction on the
amount recoverable for legal costs
– capping damages, applying a higher discount
rate to the final lump sum figure, and the
abolition of punitive damages
Torts Law Reform: Stage 2
• The 2nd Stage: reforms include a range of broad-based tort
reform measures, including a fundamental re-assessment
of the law of negligence
–
–
–
–
addressing the concept of reasonable foreseeability in the law of negligence;
protection of good samaritans who assist in emergencies;
waivers for risky activities;
statutory immunity for local government; public authorities which fail to
exercise their powers will not breach any duty;
– changing the test for professional negligence to one of 'peer acceptance';
– abolishing reliance by plaintiffs on their own intoxication; preventing people
from making claims where they were injured in the course of committing a
crime;
– provide a wider range of options for damages; creating a presumption in
favour of structured settlements.
Claims excluded from operation
of the Civil Liability Act: s3B(1)
• a) an intentional act that is done with intent to cause injury or death or
that is sexual assault or other sexual misconduct. Note Part 7 does not
apply to intentional torts done with intent to injure.
• (b) dust diseases under the Dust Diseases Tribunal Act 1989
• (c) personal injury damages where the injury or death concerned
resulted from smoking or other use of tobacco products
• (d) actions governed by Part 6 of the Motor Accidents Act 1988 and
Chapter 5 of the Motor Accidents Compensation Act 1999 except the
provisions that subsection (2) provides apply to motor accidents
• (e) Workers Compensation Act 1987, Workers Compensation (Bush
Fire, Emergency and Rescue Services) Act 1987, Workers
Compensation (Dust Diseases) 1942, Victims Support and
Rehabilitation Act 1996 or Anti-Discrimination Act 1977 or a benefit
payable under the Sporting Injuries Insurance Act 1978
THE CIVIL LIABILITY
AMENDMENT (PERSONAL
RESPONSIBILITY) ACT
• Part 1A Division incorporates statutory reform
to the law of negligence in Sections 5A to 5T
• Commenced 6/12/02, except Section 5N applies
to breaches of warranties which occur after
10/1/03
• 5A scope of application
– The part applies to any claims in negligence
regardless of whether the claim is brought in tort,
contract, under statute or otherwise
Duty of Care
• S 5B:(1) A person is not negligent in failing to take precautions against a risk of
harm unless:
– (a) the risk was foreseeable (that is, it is a risk of which the person knew or
ought to have known), and
– (b) the risk was not insignificant, and
– (c) in the circumstances, a reasonable person in the person’s position would
have taken those precautions.
• (2) In determining whether a reasonable person would have taken precautions
against a risk of harm, the court is to consider the following (amongst other
relevant things):
– (a) the probability that the harm would occur if care were not taken,
– (b) the likely seriousness of the harm,
– (c) the burden of taking precautions to avoid the risk of harm,
– (d) the social utility of the activity that creates the risk of harm.
Duty of Care – commentary
• Section 5B(1) provides a person is not negligent
unless… (b) the risk was not insignificant.
- Wyong Shire Council v Shirt (1980) 146 CLR 40:
risk must be “real” in the sense that a reasonable
person would not “brush it aside as far-fetched or
fanciful.”
- It is unclear whether “not insignificant” in Section
5B(1)(b) is more restrictive than “not far-fetched
or fanciful” in Wyong Shire Council v Shirt
Duty of Care
5C Other principles
In proceedings relating to liability for negligence:
(a) the burden of taking precautions to avoid a risk of harm includes the
burden of taking precautions to avoid similar risks of harm for which
the person may be responsible, and
(b) the fact that a risk of harm could have been avoided by doing
something in a different way does not of itself give rise to or affect
liability for the way in which the thing was done, and
(c) the subsequent taking of action that would (had the action been taken
earlier) have avoided a risk of harm does not of itself give rise to or
affect liability in respect of the risk and does not of itself constitute
an admission of liability in connection with the risk.
Causation
2 stage process is adopted.
5D General principles
(1) A determination that negligence caused particular harm comprises
the following elements:
(a) that the negligence was a necessary condition of the occurrence of the
harm ( "factual causation" ), and
(b) that it is appropriate for the scope of the negligent person’s liability to
extend to the harm so caused ( "scope of liability" ).
Compare with March v E&MH Stramare Pty Ltd (1991) 171
CLR 506
Causation
Failure to warn cases
5D General principles
(3) If it is relevant to the determination of factual causation to determine
what the person who suffered harm would have done if the negligent
person had not been negligent:
•
•
the matter is to be determined subjectively in the light of all relevant
circumstances, subject to paragraph (b), and
any statement made by the person after suffering the harm about what
he or she would have done is inadmissible except to the extent (if any)
that the statement is against his or her interest.
Assumption of risk
Injured persons presumed to be aware of obvious risks
5G Injured persons presumed to be aware of obvious risks
(1) In determining liability for negligence, a person who suffers harm is
presumed to have been aware of the risk of harm if it was an obvious
risk, unless the person proves on the balance of probabilities that he
or she was not aware of the risk.
(2) For the purposes of this section, a person is aware of a risk if the
person is aware of the type or kind of risk, even if the person is not
aware of the precise nature, extent or manner of occurrence of the
risk.
Assumption of risk
5H No proactive duty to warn of obvious risk
(1) A person ( "the defendant" ) does not owe a duty of care to another
person ( "the plaintiff" ) to warn of an obvious risk to the plaintiff.
(2) This section does not apply if:
(a) the plaintiff has requested advice or information about the risk
from the defendant, or
(b) the defendant is required by a written law to warn the plaintiff of
the risk, or
(c) the defendant is a professional and the risk is a risk of the death
of or personal injury to the plaintiff from the provision of a
professional service by the defendant.
(3) Subsection (2) does not give rise to a presumption of a duty to warn of
a risk in the circumstances referred to in that subsection.
Assumption of risk
5I No liability for materialisation of inherent risk
(1) A person is not liable in negligence for harm
suffered by another person as a result of the
materialisation of an inherent risk.
(2) An "inherent risk" is a risk of something
occurring that cannot be avoided by the exercise
of reasonable care and skill.
(3) This section does not operate to exclude liability
in connection with a duty to warn of a risk.
Recreational activities
5M No duty of care for recreational activity
where risk warning
(1) A person ( "the defendant" ) does not owe a duty of care to another
person who engages in a recreational activity ( "the plaintiff" ) to
take care in respect of a risk of the activity if the risk was the subject
of a risk warning to the plaintiff.
(2) If the plaintiff is an “incapable person”, the defendant may rely on a
risk warning only if:
(a) the incapable person was under the control of or accompanied by
another person (who is not an incapable person and not the
defendant) and the risk was the subject of a risk warning to that other
person, or
(b) the risk was the subject of a risk warning to a parent of the
incapable person (whether or not the incapable person was under the
control of or accompanied by the parent).
Recreational activities
5M No duty of care for recreational
activity where risk warning
(10) The fact that a risk is the subject of a risk warning does
not of itself mean:
(a) that the risk is not an obvious or inherent risk of an
activity, or
(b) that a person who gives the risk warning owes a duty
of care to a person who engages in an activity to take
precautions to avoid the risk of harm from the activity.
Recreational activities
5N Waiver of contractual duty of care for
recreational activities
(1) Despite any other written or unwritten law, a term of a contract for
the supply of recreation services may exclude, restrict or modify any
liability to which this Division applies that results from breach of an
express or implied warranty that the services will be rendered with
reasonable care and skill.
(2) Nothing in the written law of New South Wales renders such a term
of a contract void or unenforceable or authorises any court to refuse
to enforce the term, to declare the term void or to vary the term.
Recreational activities
5L No liability for harm suffered from obvious
risks of dangerous recreational activities
(1) A person ( "the defendant" ) is not liable in
negligence for harm suffered by another person (
"the plaintiff" ) as a result of the materialisation of
an obvious risk of a dangerous recreational
activity engaged in by the plaintiff. (2) This
section applies whether or not the plaintiff was
aware of the risk.
Recreational Activities
• At present, there are no authorities to assist us in interpreting Sections
5M to L.
• However, it is clear that the judicial approach to liability was affected
in cases decided in and around the public debate and introduction of
the Civil Liability Act.
• For example, compare the approach to liability in Beck v State of
NSW & Anor [2001] NSWSC 278
with
Swain v Waverley Municipal Council [2005] HCA 4 (9 February
2005)
Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council
[2004] NSWCA 247 (27 July 2004)
Professional negligence
Sections 5O & 5P
• “Peer professional opinion” (or Bolam) test for
determining the appropriate standard of care
• Rogers v Whitaker (1992) 175 CLR 479
– Cases involving a risk of injury or death arising from a
professional service, community standards and other
considerations may be applied by the court in
determining the appropriate standard of care to be
exercised.
Professional negligence
5O Standard of care for professionals
(1) A person practising a profession ( "a professional" ) does
not incur a liability in negligence arising from the
provision of a professional service if it is established that
the professional acted in a manner that (at the time the
service was provided) was widely accepted in Australia
by peer professional opinion as competent professional
practice.
(2) However, peer professional opinion cannot be relied on
for the purposes of this section if the court considers that
the opinion is irrational
Non-delegable duties and
vicarious liability
Vicarious liability arises in circumstances “when the
law holds one person responsible for the
misconduct of another, although he is himself free
from blameworthiness or fault” (Fleming J, Law
of Torts (9th edition) at 409)
Non-delegable duty arises in circumstances where a
person cannot be excused from liability even if
reasonable care is exercised in entrusting
responsibility to another person
Non-delegable duties and
vicarious liability
5Q Liability based on non-delegable duty
(1) The extent of liability in tort of a person ("the
defendant") for breach of a non-delegable duty to ensure
that reasonable care is taken by a person in the carrying
out of any work or task delegated or otherwise entrusted
to the person by the defendant is to be determined as if
the liability were the vicarious liability of the defendant
for the negligence of the person in connection with the
performance of the work or task.
(2) This section applies to an action in tort whether or not it
is an action in negligence, despite anything to the
contrary in section 5A.
Non-delegable duties and Vicarious
duties
• New South Wales v Lepore ; Samin v Queensland; Rich v
Queensland [2003] HCA 4 (6 February 2003)
- Liability of school authority
- Alleged sexual assault on pupil by teacher
- Whether school authority in breach of non-delegable duty of care
- Concept of non-delegable duty
- Whether school authority vicariously liable
- Test for imposition of vicarious liability.
Contributory negligence
5S Contributory negligence can defeat
claim
In determining the extent of a reduction in damages by reason
of contributory negligence, a court may determine a
reduction of 100% if the court thinks it just and equitable
to do so, with the result that the claim for damages is
defeated.
Compare: Wynbergen v Hoyts Corporation Pty Ltd (1997)
149 ALR 25
Contributory negligence
5T Contributory negligence—claims under
the Compensation to Relatives Act 1897
(1) In a claim for damages brought under the Compensation
to Relatives Act 1897 , the court is entitled to have regard
to the contributory negligence of the deceased person.
(2) Section 13 of the Law Reform (Miscellaneous
Provisions) Act 1965 does not apply so as to prevent the
reduction of damages by the contributory negligence of a
deceased person in respect of a claim for damages
brought under the Compensation to Relatives Act 1897 .
Mental harm
27 Definitions
In this Part:
"consequential mental harm" means mental harm that is a consequence of
a personal injury of any other kind.
"mental harm" means impairment of a person’s mental condition.
"negligence" means failure to exercise reasonable care and skill.
"personal injury" includes:
(a) pre-natal injury,
(b) impairment of a person’s physical or mental condition, and
(c) disease.
"pure mental harm" means mental harm other than consequential mental
harm.
Mental harm
•
30 Limitation on recovery for pure mental
harm arising from shock
(1) This section applies to the liability of a person ("the defendant”) for
pure mental harm to a person ("the plaintiff") arising wholly or partly
from mental or nervous shock in connection with another person
("the victim") being killed, injured or put in peril by the act or
omission of the defendant.
(2) The plaintiff is not entitled to recover damages for pure mental harm
unless:
(a) the plaintiff witnessed, at the scene, the victim being killed, injured
or put in peril, or
(b) the plaintiff is a close member of the family of the victim.
Mental harm
32 Mental harm—duty of care
(1) A person ("the defendant") does not owe a duty of care to
another person ("the plaintiff") to take care not to cause
the plaintiff mental harm unless the defendant ought to
have foreseen that a person of normal fortitude might, in
the circumstances of the case, suffer a recognised
psychiatric illness if reasonable care were not taken.
Codifies the common law test for foreseeability of risk of
mental harm in Tame v NSW; Annetts v Australian
Stations Pty Ltd [2002] HCA 35
Mental harm
33 Liability for economic loss for consequential mental
harm
A court cannot make an award of damages for economic loss
for consequential mental harm resulting from negligence
unless the harm consists of a recognised psychiatric
illness.