LAW OF TORTSLAW OF TORTS

LECTURE 4LECTURE 4

Negligent TrespassNegligent Trespass

Negligence – Duty of CareNegligence – Duty of Care

Greg YoungGreg Younggreg.young@lawyer.comgreg.young@lawyer.com

NEGLIGENCE AND FAULT NEGLIGENCE AND FAULT IN TORTSIN TORTS

NEGLIGENCENEGLIGENCE

TRESPASSTRESPASSNEGLIGENCENEGLIGENCE

the actionthe actionCARELESSCARELESS

FAULTFAULT

INTENTIONINTENTION

NEGLIGENT TRESPASSNEGLIGENT TRESPASS

• Intentional Intentional or or negligentnegligent act act of D which of D which directlydirectly causes an causes an injury to the injury to the P or his /her P or his /her propertyproperty without lawful without lawful justificationjustification

•The Elements of Trespass:The Elements of Trespass:– fault: intentional or fault: intentional or negligent actnegligent act– injury must be injury must be directdirect– injury may be to the P or to his/her propertyinjury may be to the P or to his/her property– No lawful justificationNo lawful justification

NEGLIGENT TRESPASSNEGLIGENT TRESPASS

• While trespass is always a While trespass is always a directdirect tort, tort, it is not necessarily an intentional act it is not necessarily an intentional act in every instance. It may be in every instance. It may be committedcommitted negligently negligently

• Negligent trespassNegligent trespass is an action in is an action in trespass not in negligence:trespass not in negligence:

• Where the facts of a case permit, it is Where the facts of a case permit, it is possible to frame an action in both possible to frame an action in both trespass and negligence on the same trespass and negligence on the same factsfacts• Williams v. MolotinWilliams v. Molotin (1957) 97 CLR. 465 (1957) 97 CLR. 465..

What is Negligence?What is Negligence?

• It is the neglect of a legal dutyIt is the neglect of a legal duty• It involves the three elements of It involves the three elements of

•dutyduty•breach;breach;•resultant damageresultant damage

Negligence: The ElementsNegligence: The Elements

Duty of care

Breach

Damage

Negligence

Negligence: The Early Negligence: The Early CasesCases

• HeavenHeaven v. v. PenderPender• (Defective equipment supplied to plaintiff painter)(Defective equipment supplied to plaintiff painter)

• The dicta of Brett MR:The dicta of Brett MR:• whenever one person is by circumstances whenever one person is by circumstances

placed in such a position with regard to placed in such a position with regard to another, that every one of ordinary sense who another, that every one of ordinary sense who did think would at once recognise that if he did did think would at once recognise that if he did not use ordinary care and skill in his own not use ordinary care and skill in his own conduct with regard to those circumstances he conduct with regard to those circumstances he would cause danger or injury to the person or would cause danger or injury to the person or property of the other (person) a duty arises to property of the other (person) a duty arises to use ordinary care and skill to avoid such use ordinary care and skill to avoid such danger.danger.

Donoghue v. StevensonDonoghue v. Stevenson

• Ginger beer-decomposing snail-P has Ginger beer-decomposing snail-P has shock-gastroenteritisshock-gastroenteritis

• Privity of contract between P and D. Privity of contract between P and D. Issue was whether D owed P a dutyIssue was whether D owed P a duty

• Dicta of Lord AtkinDicta of Lord Atkin• You must take reasonable care to avoid acts or omissions which You must take reasonable care to avoid acts or omissions which

you can reasonably foresee would be likely to injure your you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems neighbour. Who then in law is my neighbour? The answer seems to be persons who are closely and directly affected by my act that 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 omissionsI ought reasonably to have them in mind to the acts or omissions

NEGLIGENCENEGLIGENCE

• Grant v Australian Knitting Mills Grant v Australian Knitting Mills (1936)(1936)• The application of the rule in The application of the rule in D v SD v S

•a manufacturer of products, which he sells in a manufacturer of products, which he sells in such a form as to show that he intends them such a form as to show that he intends them to reach the ultimate consumer in the form in to reach the ultimate consumer in the form in which they left him with no reasonable which they left him with no reasonable possibility of intermediate examination, and possibility of intermediate examination, and with the knowledge that the absence of with the knowledge that the absence of reasonable care reasonable care in the preparation or putting in the preparation or putting up of the products will result in an injury to up of the products will result in an injury to the consumer’s life or property, the consumer’s life or property, owes a dutyowes a duty to the consumer to the consumer to take that reasonable careto take that reasonable care

• The dicta of Lord Atkin in The dicta of Lord Atkin in Donoghue v Donoghue v Stevenson:Stevenson: – whenever one person is by circumstances placed in whenever one person is by circumstances placed in

such a position with regard to another, that every such a position with regard to another, that every one of ordinary sense who did think would at once one of ordinary sense who did think would at once recognise that if he did not use ordinary care and recognise that if he did not use ordinary care and skill in his own conduct with regard to those skill in his own conduct with regard to those circumstances he would cause danger or injury to circumstances he would cause danger or injury to the pthe peerson or property of the other (person) rson or property of the other (person) a duty a duty arises to use ordinary carearises to use ordinary care and skill to avoid such and skill to avoid such danger.danger.

– You must take reasonable care to avoid acts or You must take reasonable care to avoid acts or omissions which you can reasonably foresee would omissions which you can reasonably foresee would be likely to injure your neighbour/anotherbe likely to injure your neighbour/another

NEGLIGENCE: THE DUTY NEGLIGENCE: THE DUTY OF CAREOF CARE

Negligence: (Duty of Care)Negligence: (Duty of Care)

• The Duty of care is the obligation to The Duty of care is the obligation to avoid acts or omissions which are avoid acts or omissions which are reasonably foreseeable to cause reasonably foreseeable to cause damage to another.damage to another.

• When does one owe a duty of care?When does one owe a duty of care?• Whenever one is engaged in an act Whenever one is engaged in an act

which he or she can reasonably foresee which he or she can reasonably foresee would be likely to injure another would be likely to injure another person, one owes a duty of care to that person, one owes a duty of care to that other personother person

The Modern Requirements The Modern Requirements for the Duty of Carefor the Duty of Care

• Jaensch v. CoffeyJaensch v. Coffey (1984) per Dean J. p587-8 (1984) per Dean J. p587-8• A duty situation would arise from the A duty situation would arise from the

following combination of factorsfollowing combination of factors• A reasonable foreseeability of real risk of A reasonable foreseeability of real risk of

injury to P either as an identifiable injury to P either as an identifiable individual or a member of a class of individual or a member of a class of personspersons

• The existence of proximity between the The existence of proximity between the parties with respect to the act or omissionparties with respect to the act or omission

• Absence of any rule that precludes such a Absence of any rule that precludes such a duty duty

What is Reasonable What is Reasonable Foreseeability?Foreseeability?

• Reasonable foreseeability presupposes an Reasonable foreseeability presupposes an objective or a reasonable person’s standardobjective or a reasonable person’s standard

• The reasonable person is an embodiment of The reasonable person is an embodiment of community values and what the community community values and what the community expects of a responsible citizenexpects of a responsible citizen

• The concept allows us to evaluate D’s The concept allows us to evaluate D’s conduct not from his or her peculiar conduct not from his or her peculiar position, but from that of a reasonable position, but from that of a reasonable person similarly placedperson similarly placed

• Reasonable foreseeability is a question of Reasonable foreseeability is a question of law law

Reasonable Reasonable Foreseeability: Case LawForeseeability: Case Law

•Nova Mink v. Trans Canada Nova Mink v. Trans Canada AirlinesAirlines [1951] [1951] (Air traffic noise (Air traffic noise causing minks to eat their young causing minks to eat their young ones-No foreseeability)ones-No foreseeability)

•Palsgraf v. Long Island R.R. Co. Palsgraf v. Long Island R.R. Co. (1928) (1928) (Railway guards helping falling (Railway guards helping falling passenger-fireworks explosion causing passenger-fireworks explosion causing injury to plaintiff.-No foreseeability)injury to plaintiff.-No foreseeability)

•Chapman v. HearseChapman v. Hearse (1961) (1961) (Car (Car accident-Dr. stops to help-gets killed by accident-Dr. stops to help-gets killed by another vehicle-action against D who caused another vehicle-action against D who caused initial accident- Foreseeability upheld)initial accident- Foreseeability upheld)

The Scope of Reasonable Foreseeability

•United Novelty Co. v. Daniels United Novelty Co. v. Daniels (1949) (1949) (Workers cleaning coin (Workers cleaning coin operated machine with flammable operated machine with flammable substance-rat in machine runs into fire substance-rat in machine runs into fire place causing fire damage and death-place causing fire damage and death-Foreseeability upheld)Foreseeability upheld)

• Jaensch v. CoffeyJaensch v. Coffey (1984) (1984) (Car accident-spouse (Car accident-spouse goes to hospital to see injured partner-suffers shock goes to hospital to see injured partner-suffers shock from what she sees and hears of husband’s condition-from what she sees and hears of husband’s condition-action against D who caused accident-Proximity-action against D who caused accident-Proximity-Duty)Duty)

Reasonable Foreseeability: Reasonable Foreseeability: Established Category Of Duty Established Category Of Duty

of Careof Care

• Koehler -v- Cerebos (Australia) Limited Koehler -v- Cerebos (Australia) Limited [2005] HCA 15[2005] HCA 15

McHugh, Gummow, Hayne and Heydon JJ (majority): McHugh, Gummow, Hayne and Heydon JJ (majority): “The central inquiry remains whether, in all the “The central inquiry remains whether, in all the circumstances, the risk of a plaintiff … sustaining circumstances, the risk of a plaintiff … sustaining a recognisable psychiatric illness was reasonably a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far foreseeable, in the sense that the risk was not far fetched or fanciful” [33]fetched or fanciful” [33]

““The duty which an employer owes is to each The duty which an employer owes is to each employee. The relevant duty of care is engaged if employee. The relevant duty of care is engaged if psychiatric injury to the particular employee is psychiatric injury to the particular employee is reasonably foreseeable”reasonably foreseeable”

ProximityProximity

• Jaensch v. CoffeyJaensch v. Coffey (1984) (1984) (Car accident-spouse (Car accident-spouse goes to hospital to see injured partner-suffers shock goes to hospital to see injured partner-suffers shock from what she sees and hears of husband’s from what she sees and hears of husband’s condition-action against D who caused accident-condition-action against D who caused accident-Proximity-Duty)Proximity-Duty)

• Gala v. PrestonGala v. Preston (1991) (1991) (Duty relationship (Duty relationship between parties engaged in an illegal enterprise-No between parties engaged in an illegal enterprise-No proximity-No duty)proximity-No duty)

• Nagle v. Rottnest Island AuthorityNagle v. Rottnest Island Authority (1993) (1993) (P (P injured while diving into a rocky pool- pool injured while diving into a rocky pool- pool promoted and operated by D-Proximity, Duty promoted and operated by D-Proximity, Duty upheld) upheld)

• Held: the board, by encouraging persons to engage Held: the board, by encouraging persons to engage in an activity, came under a duty to take reasonable in an activity, came under a duty to take reasonable care to avoid injury to them and the discharge of care to avoid injury to them and the discharge of that duty... require that they be warned of any that duty... require that they be warned of any foreseeable risks of injury associated with the foreseeable risks of injury associated with the activity so encouraged activity so encouraged

The Main Features of The Main Features of ProximityProximity

PROXIMITY

Physical

Circumstantial

Causal

Degree of proximity

Evaluation of legal

and policy considerations of

what is fairand reasonable

Evaluation

Proximity CriticisedProximity Criticised

• The High Court has expressed The High Court has expressed reservations about the usefulness of the reservations about the usefulness of the notion of proximity in recent timesnotion of proximity in recent times– Hill v Van ErpHill v Van Erp (A unifying concept of (A unifying concept of

proximity described as “ambitious” per proximity described as “ambitious” per Dawson J; “of limited use in the Dawson J; “of limited use in the determination of individual disputes” per determination of individual disputes” per Gummow J; and affording no real guidance “in Gummow J; and affording no real guidance “in determining the existence of a duty of care in determining the existence of a duty of care in difficult and novel cases” per McHugh J)difficult and novel cases” per McHugh J)

– Perre v Apand Perre v Apand (Proximity was no longer (Proximity was no longer the “talisman for determining a duty of care” the “talisman for determining a duty of care” per McHugh J; and “incapable of fulfilling, per McHugh J; and “incapable of fulfilling, unaided, the function of demonstrating the unaided, the function of demonstrating the existence or absence of duty of care” per existence or absence of duty of care” per Kirby J)Kirby J)

Proximity - CriticisedProximity - Criticised

• Sullivan v Moody (2001) 207 CLR 562Sullivan v Moody (2001) 207 CLR 562

Facts – In separate proceedings, fathers were denied access to Facts – In separate proceedings, fathers were denied access to their children as Dr Moody (employed by the SA Dept of their children as Dr Moody (employed by the SA Dept of Community Welfare) incorrectly diagnosed sexual abuse; The Community Welfare) incorrectly diagnosed sexual abuse; The fathers sued in negligence for psychiatric injury.fathers sued in negligence for psychiatric injury.

Judgment – Appeals dismissed as no duty of care exists to Judgment – Appeals dismissed as no duty of care exists to protect a suspected abuser from emotional distressprotect a suspected abuser from emotional distress

Gleeson CJ, Gaudron, McHugh, Hayne & Callinan JJ:Gleeson CJ, Gaudron, McHugh, Hayne & Callinan JJ:

[573] “…foreseeability of harm is not sufficient to give rise to a [573] “…foreseeability of harm is not sufficient to give rise to a duty of care”duty of care”

[578] “The formula is not ‘proximity’. Notwithstanding the [578] “The formula is not ‘proximity’. Notwithstanding the centrality of that concept, for more than a century … it gives centrality of that concept, for more than a century … it gives little practical guidance in determining whether a duty of little practical guidance in determining whether a duty of care exists in cases that are not analogous to cases in which care exists in cases that are not analogous to cases in which a duty has been established”a duty has been established”

Proximity: Unclear how it Proximity: Unclear how it is to be Applied Now?is to be Applied Now?

• Perre –v- Apand: Perre –v- Apand: Although proximity is not a Although proximity is not a universal test for duty of care, it is a concept which universal test for duty of care, it is a concept which has not been totally abandoned (per McHugh J)has not been totally abandoned (per McHugh J)

• ““Incremental Approach”Incremental Approach”- Sutherland Shire Council –v- Heyman: per Brennan - Sutherland Shire Council –v- Heyman: per Brennan CJ CJ “develop incrementally and by analogy with “develop incrementally and by analogy with established categories”established categories”

- Perre –v- Apand: incremental approach adopted by - Perre –v- Apand: incremental approach adopted by McHugh JMcHugh J

• Incremental Approach criticised in Brodie –v- Singleton Incremental Approach criticised in Brodie –v- Singleton Shire Council by Callinan J as retreating to a “safe Shire Council by Callinan J as retreating to a “safe haven”haven”

DUTY CATEGORIES: To DUTY CATEGORIES: To whom is duty owed?whom is duty owed?

• One owes a duty to those One owes a duty to those so closely and directly so closely and directly affectedaffected by his/her conduct that she ought reasonably by his/her conduct that she ought reasonably to have them in contemplation as being so affected to have them in contemplation as being so affected when undertaking the conduct in question.when undertaking the conduct in question.

• Examples: Examples: - Employer/Worker- Employer/Worker- Driver/Other Road Users- Driver/Other Road Users- Doctor/Patient- Doctor/Patient- - Consumers, users of products and structuresConsumers, users of products and structures

» Donoghue v StevensonDonoghue v Stevenson» VoliVoli v Inglewood v Inglewood Shire Council Shire Council » Bryan Bryan v v Maloney Maloney

– Users of premises etc.Users of premises etc.» Australian Safeway Stores v ZaluznaAustralian Safeway Stores v Zaluzna

Unborn ChildUnborn Child

• The unborn child:The unborn child:

– The duty is not simply to take reasonable care in the The duty is not simply to take reasonable care in the abstract but to take reasonable care not to injure a abstract but to take reasonable care not to injure a person whom it should reasonably be foreseen may person whom it should reasonably be foreseen may be injured by the act or neglect if such care is not be injured by the act or neglect if such care is not taken (Winneke CJ/ Pape J)taken (Winneke CJ/ Pape J)

– There can be no justification for distinguishing There can be no justification for distinguishing between the rights… of a newly born infant returning between the rights… of a newly born infant returning home with his /her mother from hospital in a bassinet home with his /her mother from hospital in a bassinet hidden from view on the back of a motor car being hidden from view on the back of a motor car being driven by his proud father and of a child driven by his proud father and of a child en ventre sa en ventre sa mere mere whose mother is being driven by her anxious whose mother is being driven by her anxious husband to the hospital on way to the labour ward to husband to the hospital on way to the labour ward to deliver such a child ( Per Gillard J in deliver such a child ( Per Gillard J in Watt v RamaWatt v Rama))

- Lynch v Lynch - Lynch v Lynch (1991)(1991)

Unborn ChildUnborn Child

• Wrongful life casesWrongful life cases– Harriton v Stephens [2006] HCA 15 (9 May Harriton v Stephens [2006] HCA 15 (9 May

2006) The specific duty of care postulated 2006) The specific duty of care postulated was a duty upon Dr Stephens to diagnose was a duty upon Dr Stephens to diagnose Rubella and then advise Mrs Harriton to Rubella and then advise Mrs Harriton to terminate the pregancy.terminate the pregancy.

– Appeal dismissed (7 to 1 majority)Appeal dismissed (7 to 1 majority)– Crennan J (Gleeson CJ, Gummow & Heydon Crennan J (Gleeson CJ, Gummow & Heydon

JJ agreeing), Hayne J and Callinan J in JJ agreeing), Hayne J and Callinan J in separate judgments dismissed the Appealseparate judgments dismissed the Appeal

– Kirby J dissentedKirby J dissented

Harriton v StephensHarriton v Stephens

• Crennan J (Gleeson CJ, Gummow & Heydon JJ Crennan J (Gleeson CJ, Gummow & Heydon JJ agreeing) agreeing)

• [244] “[244] “It was not Dr P R Stephens's fault that It was not Dr P R Stephens's fault that Alexia Alexia HarritonHarriton was injured by the rubella was injured by the rubella infection of her mother. Once she had been infection of her mother. Once she had been affected by the rubella infection of her affected by the rubella infection of her mother it was not possible for her to enjoy a mother it was not possible for her to enjoy a life free from disability. ... Dr P R Stephens life free from disability. ... Dr P R Stephens would have discharged his duty by would have discharged his duty by diagnosing the rubella and advising Mrs diagnosing the rubella and advising Mrs  HarritonHarriton about her circumstances, enabling about her circumstances, enabling her to decide whether to terminate her her to decide whether to terminate her pregnancy; he could not require or compel pregnancy; he could not require or compel Mrs Mrs  HarritonHarriton to have an abortion. to have an abortion. ””

Harriton v StephensHarriton v Stephens

• Crennan J (Gleeson CJ, Gummow & Heydon JJ Crennan J (Gleeson CJ, Gummow & Heydon JJ agreeing) agreeing)

• [249] “[249] “It is not to be doubted that a doctor has a It is not to be doubted that a doctor has a duty to advise a mother of problems arising in her duty to advise a mother of problems arising in her pregnancy, and that a doctor has a duty of care to a pregnancy, and that a doctor has a duty of care to a foetus which may be mediated through the motherfoetus which may be mediated through the mother[403][403]. However, it must be mentioned that those . However, it must be mentioned that those duties are not determinative of the specific question duties are not determinative of the specific question here, namely whether the particular damage here, namely whether the particular damage claimed in this case by the child engages a duty of claimed in this case by the child engages a duty of care. To superimpose a further duty of care on a care. To superimpose a further duty of care on a doctor to a foetus (when born) to advise the mother doctor to a foetus (when born) to advise the mother so that she can terminate a pregnancy in the so that she can terminate a pregnancy in the interest of the foetus in not being born, which may interest of the foetus in not being born, which may or may not be compatible with the same doctor's or may not be compatible with the same doctor's duty of care to the mother in respect of her duty of care to the mother in respect of her interests, has the capacity to introduce conflict, interests, has the capacity to introduce conflict, even incoherence, into the body of relevant legal even incoherence, into the body of relevant legal principle principle ””

Harriton v StephensHarriton v Stephens

• Crennan J (Gleeson CJ, Gummow & Heydon JJ Crennan J (Gleeson CJ, Gummow & Heydon JJ agreeing) agreeing)

• [251 & 252] “[251 & 252] “Because damage constitutes the Because damage constitutes the gist of an action in negligence, a plaintiff needs gist of an action in negligence, a plaintiff needs to prove actual damage or loss and a court must to prove actual damage or loss and a court must be able to apprehend and evaluate the damage, be able to apprehend and evaluate the damage, that is the loss, deprivation or detriment caused that is the loss, deprivation or detriment caused by the alleged breach of duty. ... In the Court of by the alleged breach of duty. ... In the Court of Appeal, Spigelman CJ recognised that in cases Appeal, Spigelman CJ recognised that in cases of this kind, to find damage which gives rise to of this kind, to find damage which gives rise to a right to compensation it must be established a right to compensation it must be established that non-existence is preferable to life with ...that non-existence is preferable to life with ...

• A comparison between a life with disabilities A comparison between a life with disabilities and non-existence, for the purposes of proving and non-existence, for the purposes of proving actual damage and having a trier of fact actual damage and having a trier of fact apprehend the nature of the damage caused, is apprehend the nature of the damage caused, is impossible. impossible. ””

RESCUERS RESCUERS

• There are two separate issues in rescue:There are two separate issues in rescue:– The ‘duty’ to rescueThe ‘duty’ to rescue– The duty of care owed to the rescuerThe duty of care owed to the rescuer

• There is no positive legal obligation in the There is no positive legal obligation in the common law to rescuecommon law to rescue

– The law does not ‘cast a duty upon a man to go to the 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 aid of another who is in peril or distress, not caused by himby him

• There may however exist a duty to rescue There may however exist a duty to rescue in master servant relationships or boat in master servant relationships or boat owner and guest relationships for instance owner and guest relationships for instance

– Horsley v Macleran (The Ogopogo) (1971) 22 DLRHorsley v Macleran (The Ogopogo) (1971) 22 DLR

• One is only required to use reasonable care One is only required to use reasonable care and skill in the rescue and skill in the rescue

THE DUTY OWED TO THE DUTY OWED TO RESCUERS RESCUERS

• The rescuer is generally protected : torts recognizes the The rescuer is generally protected : torts recognizes the existence of a duty of care owed to the rescuer existence of a duty of care owed to the rescuer

• The issue of The issue of volenti-non fit injuria: volenti-non fit injuria: This principle does not This principle does not seem to apply in modern tort law to rescue situationsseem to apply in modern tort law to rescue situations

– Note however the case of Note however the case of Sylvester v GB ChapmanSylvester v GB Chapman Ltd (1935) :attack by Ltd (1935) :attack by leopard while attempting to put out a smouldering cigarette in strawleopard while attempting to put out a smouldering cigarette in straw

• ‘‘The cry of danger is the summons to relief. The law does not The cry of danger is the summons to relief. The law does not ignore these reactions of the mind.. It recognizes them as ignore these reactions of the mind.. It recognizes them as normal… and places their effects within the range of of the normal… and places their effects within the range of of the natural and the probable [and for that matter the natural and the probable [and for that matter the foreseeable] per Cardozo J in foreseeable] per Cardozo J in Wagner v International Railway Wagner v International Railway Co. (Co. (1921)1921)

– Chapman v HearseChapman v Hearse– Videan v British Transport Commission Videan v British Transport Commission (1963) (rescue attempt to get a (1963) (rescue attempt to get a

child trespassing on railway line)child trespassing on railway line)• Rescuers may recover for both physical injuries and nervous Rescuers may recover for both physical injuries and nervous

shockshock– Mount Isa Mines v Pusey (1970)Mount Isa Mines v Pusey (1970)

• The US fire-fighter’s Rule does not apply in Australia and the The US fire-fighter’s Rule does not apply in Australia and the UKUK

– Ogwo v Taylor (1988) AC 431Ogwo v Taylor (1988) AC 431

Unforeseeable PlaintiffsUnforeseeable Plaintiffs

•In general the duty is In general the duty is owed to only the owed to only the foreseeable plaintiff and foreseeable plaintiff and not abnormal Plaintiffs. not abnormal Plaintiffs. – Bourhill v YoungBourhill v Young [1943] AC 92 [1943] AC 92 – Levi v Colgate-Palmolive LtdLevi v Colgate-Palmolive Ltd (1941)(1941)

– Haley v L.E.B.Haley v L.E.B. [1965] AC 778 [1965] AC 778

IMPACT OF THE CIVIL IMPACT OF THE CIVIL LIABILITY ACT ON THE DUTY LIABILITY ACT ON THE DUTY

OF CAREOF CARE

• The The Civil Liability Act 2002Civil Liability Act 2002 together with the together with the Civil Liability Amendment (Personal Civil Liability Amendment (Personal Responsibility) Act 2002Responsibility) Act 2002 govern the law of govern the law of negligence in NSW. negligence in NSW. – The The Civil Liability Act 2002Civil Liability Act 2002 was enacted 28 was enacted 28thth May 2002 and May 2002 and

received assent on 18 June 2002received assent on 18 June 2002

• Rationale behind the legislation:Rationale behind the legislation:– to limit the quantum of damages for personal injury and death to limit the quantum of damages for personal injury and death

in public liability instances; resultantly lowering insurance in public liability instances; resultantly lowering insurance premiums. premiums.

– to discourage ‘over litigation’, by the imposition of to discourage ‘over litigation’, by the imposition of restrictions and obligations and responsibilities upon restrictions and obligations and responsibilities upon plaintiffs and counsel plaintiffs and counsel

Duty of Care: PolicyDuty of Care: Policy

• In novel cases, the Courts will not only In novel cases, the Courts will not only apply the test of “reasonable apply the test of “reasonable foreseeability” but also consider foreseeability” but also consider “policy” considerations:“policy” considerations:

• Hill –v- Chief Constable of West Hill –v- Chief Constable of West Yorkshire [1989] 1 AC 53 Yorkshire [1989] 1 AC 53 (the Yorkshire (the Yorkshire Ripper’s last victim not owed a duty of care by Ripper’s last victim not owed a duty of care by investigating police)investigating police)

• Sullivan –v- Moody (2001) 207 CLR 562 Sullivan –v- Moody (2001) 207 CLR 562 (suspected sexual assault offenders not owed a (suspected sexual assault offenders not owed a duty of care to prevent harm by investigating duty of care to prevent harm by investigating community services officers)community services officers)

• D’Orta-Ekenaike –v- Victorian Legal Aid D’Orta-Ekenaike –v- Victorian Legal Aid [2005] HCA 12 [2005] HCA 12 (advocates’ immunity upheld)(advocates’ immunity upheld)

Civil Liability Act 2002: Civil Liability Act 2002: Duty of CareDuty of Care

• Statute overrides the common law and Statute overrides the common law and that any negligence claim commenced that any negligence claim commenced since 20 March 2002 will be governed since 20 March 2002 will be governed by the Civil Liability Act 2002. by the Civil Liability Act 2002.

• Next lecture, we will consider the Next lecture, we will consider the application of:application of:

  – general duty of care provisions of s.5B; general duty of care provisions of s.5B; – situations of obvious/inherent risks under ss.5F situations of obvious/inherent risks under ss.5F

to I; and to I; and – situations of dangerous recreational activities situations of dangerous recreational activities

under ss.5J to N.under ss.5J to N.

The Rationale for ReformThe Rationale for Reform

• [I]t's my view that this country is [I]t's my view that this country is tying itself up in tape because of tying itself up in tape because of over litigation, a long-term trend over litigation, a long-term trend to see us litigate for everything, to see us litigate for everything, to try to settle every problem in to try to settle every problem in our lives...by getting a big cash our lives...by getting a big cash payment from the courts....a payment from the courts....a country as small as ours can't country as small as ours can't afford to have afford to have the American-style the American-style culture of litigation".culture of litigation". (Bob Carr) (Bob Carr)

The Rationale for ReformThe Rationale for Reform

• ‘‘We need to restore personal We need to restore personal responsibility and diminish the culture responsibility and diminish the culture of blame.of blame.That means a fundamental re-That means a fundamental re-think of the law of negligence,think of the law of negligence, a a complex task of legislative drafting.complex task of legislative drafting.There is no precedent for what we are There is no precedent for what we are doing, either in health care or motor doing, either in health care or motor accident law, or in the legislation of accident law, or in the legislation of other States and Territories.other States and Territories.We are changing a body of law that has We are changing a body of law that has taken the courts 70 years to develop’ taken the courts 70 years to develop’ (Bob Carr)(Bob Carr)

The Approach to Reform: The Approach to Reform: Government’s ViewGovernment’s View

• We propose to change the law to We propose to change the law to exclude claims that exclude claims that should never be should never be broughtbrought and provide defences to ensure and provide defences to ensure that people that people who have done the right who have done the right thing are not made to pay just because thing are not made to pay just because they have access to insurancethey have access to insurance (Bob Carr) (Bob Carr)

• We want to protect good samaritans We want to protect good samaritans who help in emergencies. As a who help in emergencies. As a community, we should be reluctant to community, we should be reluctant to expose people who help others to the expose people who help others to the risk of being judged after the event to risk of being judged after the event to have not helped well enough (Bob Carr)have not helped well enough (Bob Carr)