LAW OF TORTS

Weekend Lecture 1BSummer 2005-06

Lecturer: Greg Younggreg.young@lawyer.com

Tort of Negligence- Duty of Care

NEGLIGENCE AND FAULT IN TORTS

NEGLIGENCENEGLIGENCE

TRESPASSTRESPASSNEGLIGENCENEGLIGENCE

the actionthe actionCARELESSCARELESS

FAULTFAULT

INTENTIONINTENTION

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

Breach

Damage

Negligence

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 shock-gastroenteritis

• 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

• 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: THE DUTY OF CARE

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-Duty-Foreseeability 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 D-Proximity, 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

Physical

Circumstantial

Causal

Degree of proximity

Evaluation of legal

and policy considerations of

what is fairand reasonable

Evaluation

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.