LAWS11064 Torts B

Module 2 – Negligence: overview and duty of care

Lecture Outline

• The Negligence ActionPart One

• Duty of Care – in generalPart Two

• Determining a Duty of CarePart Three

Objectives

At the end of this module you should be able to:• Identify the basic elements of a negligence action;• Discuss and explain the role and meaning of ‘duty of care’ in the

tort of negligence;• Explain the Australian test for duty of care and have an

understanding of the various control tests and limiting factors used by the Courts;

• Apply your understanding of duty of care principles to fact scenarios; and

• Discuss the different views on the role of policy factors in establishing negligence actions.

The Negligence Action

• Origins in English law• A person has a duty to take reasonable care not to

cause harm to another person.• ‘Carelessness’ recognised by law resulting from

misfeasance or nonfeasance• Concerned with conduct which falls short of society’s

standard. Assessed against “reasonable person”.• Differs from other torts – protection is not limited by the

interest or type of harm it protects• All-encompassing nature of the tort = need for control

devices to limit liability

Common Fact Scenarios

• Possible – but not exhaustive – negligence scenarios (from Clarke & Devereux, 2008):

Car accident

‘slip and trip’ accidents

Work injuries

Collapsed houses and

buildings

Professional work that isn’t up to scratch

Financial loss

Psychiatric illness

Elements of Action:

• These elements overlap – Cts often regard as interchangeable. Duty, breach and causation “continually run into one another, Lamb v Camden LBC [1981] QB 625, per Lord Denning MR. See High Ct’s decision in Cattanach v Melchior (2003) 215 CLR 1.

• Type of damage affects likelihood of liability: eg. DOC established more easily for physical injury psychiatric injury or economic loss.

• Each element stated as principle or question: eg. “The particular Def must owe a duty of care to the Pl”. OR “Does the Def owe a duty of care to the Pl?”

Duty of care Breach Damage (Causation & Remoteness)

Reasonable Foreseeability

Duty of Care

• A more generalised inquiry. Reasonable foresight that any kind of carelessness by the Def might cause damage of some kind to the Pl.

Standard of Care & Breach

• Reasonable foresight that the kind of carelessness by the Def might cause damage of some kind to the Pl.

• Present in all 3 elements• Becomes a progressively less abstract a concept: “progressively

decline from the general to the particular” (per Glass JA in Minister Administering the EPAA 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268)

[McGlone & Stickley (2009)]

Questions of Law and Fact

• Each element can be used as device to restrict or extend liability.

Negligence

Duty of Care

Question of law

Breach

Standard of care

Question of

law

Breached in fact

Damage

Causation in fact

Remoteness/ scope

of liabilit

yCausation

in law

McGlone & Stickley (2009)

Part 2: Duty of Care

• Arguably most challenging issue:– Duty is threshold issue– Presents ‘policy’ as well as legal issues– Increasingly focuses on technical issues– Just and moral rights – ‘recovery’ focus?

Origin of Duty of Care & Neighbour Principle

• Tort of negligence grew from discrete pockets or categories of case

• Early 19thC law exemplified by Winterbottom v Wright [1842] 10 M & W 109

• Donoghue v Stevenson [1932] AC 562 • 3 pre-Donoghue cases:

– Heaven v Pender (1883) 11 QBD 503– Le Lievre v Gould [1893] 1 QB 491– US influence: Palsgraf v Long Island RR Co 248 NY 339 (1928)

Donoghue v Stevenson [1932] AC 562

Facts: Pl’s friend purchases for the Pl a bottle of ginger beer. After drinking some, Pl discovers remnants of snail and becomes violently ill. Pl has no remedy in contract as it was her friend who purchased the drink from the shop. Does Pl have a remedy in negligence against manufacturer? Yes.

Legal principle: Potential Def’s, such as the manufacturer of the ginger beer, must have regard to those people, businesses and others who, in law, would be regarded as their ‘neighbours’: per Lord Atkin.

Who are my neighbours in law?• ‘persons so closely and directly affected by my acts’ – this is the idea of proximity.• ‘I ought reasonably have them in contemplation as being affected’ – this is the idea of

reasonable foreseeability.

Problem: Where does the neighbour concept end? To how many cases can it be applied? Where are the outer limits? These questions continue to test the senior common law courts of both Australia and the UK (and elsewhere).

Why is Duty important?

• Control mechanism• Courts’ role in controlling flow of litigation

– ‘Floodgates’ – ‘Indeterminacy’: Ultramares Corp v Touche, Niven and Co 174

NE 441 (1931)– The class of claimant: that is, the number of Pls;– The amount of losses;– The time period over which those losses might arise.

• Two themes: increasing the categories or scope of liability

v

the need for certainty

Part 3: Determining Duty of Care

• Liability in negligence is based on proving a duty of care to people in the position of the damaged party.

• Duties are owed to certain classes of people, not ‘to the whole world’.

• Pl has to show:– “The Def was under a duty to exercise reasonable care and skill

because his or her conduct involved a foreseeable risk of injury or harm to others; and

– The Pl was within the class of persons to whom that duty was owed” (Mendelson (2010), 297; see Roads & Traffic Authority of NSW v Dederer (2007) 238 ALR 761, per Gummow J).

• Where a plaintiff is injured, precedent will often already exist to establish that a duty of care was owed.

Determining Duty of Care:

Employer – Employee: Wilsons & Clyde Coal Co v English [1938] AC 57 (provision & maintenance of proper plant and equipment); Neill v NSW Fresh Food & Ice (1963) 108 CLR 362 (provision of a safe system of work); Butler v Fife Coal [1912] AC 149 (proper selection of skilled persons to manage and superintend the business).(Image source: Improulx (openclipart))

Medical Professional – patient: Roe v Minister of Health [1954] 2 QB 66; Rosenberg v Percival (2000) 205 CLR 434.(Image source: metalmarious (openclipart))

Professional – client: Groom v Crocker [1939] 1 KB 194;Voli v Inglewood Shire Council (1963) 110 CLR 74; Hawkins v Clayton (1988) 164 CLR 539.(image source: marauder (openclipart))

Motorist – other road users: Edwards v Noble (1971) 125 CLR 296; Nettleship v Weston [1971] 3 All ER 581; Cook v Cook (1981) 162 CLR 376. (image source: onsemeliot (openclipart))

Parent – third party: McHale v Watson (1964) 111 CLR 384 (duty to control children to prevent them causing injury to third person/property). (image source: horse50 (openclipart))

Determining Duty of Care

• Where there is no precedent (difficult categories of case that concern indirect damage and non-physical loss, and in ‘novel’ cases), it must be determined whether or not a duty exists. Eg. Sullivan v Moody (2001) 207 CLR 562.

• “The categories of negligence are never closed”: Donoghue v Stevenson, per Lord Macmillan at 619.

Search for Duty of Care “test”

• Reasonable foreseeability: Part of the test for a duty of care. – Court will ask: Was it reasonably foreseeable, to an ordinary person in the

Def’s position, that carelessness of the sort alleged might cause harm of the general type complained of, to a class of people like the Pl?: eg. Chapman v Hearse (1961) 106 CLR 112 (Dr killed by 2nd driver while attempting rescue of injured first driver.)

– As above, at this stage, RF is abstract level. – High Court has indicated that more than foreseeability is needed to found a

duty of care: see for example, Sullivan v Moody (2001) 207 CLR 562. – But RF has been recently re-emphasised by High Ct (see for eg. Tame v

NSW, Annetts v Aus Stations; and Koehler v Cerebos).

• Anns approach: Anns v London Borough of Merton [1978] AC 728, per Lord Wilberforce. 2 stage test overtly recognising policy as the second stage in approaching question of duty of care. Initially accepted by Aust courts: see Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian P/L [1983] 2 NSWLR 268.

Search for DoC “test” cont…

Proximity: • Duty consists of two issues: ‘reasonable foreseeability’ and

‘proximity’. Proximity more important under this approach.• per Deane J in Jaensch v Coffey (1984) 155 CLR 549:

“Proximity involves the notion of nearness or closeness and embraces physical proximity (in the sense of space and time) between the person or property of the plaintiff and the person or property of the defendant, circumstantial proximity such as an overriding relationship of employer and employee or of a professional man and his client and causal proximity in the sense of closeness or directness of the relationship between the particular act or cause of action and the injury sustained”: at 584.

• Popular between early 1980s and 1995 (during Mason High Court years)

Search for DoC “test” cont…

• No specific test has replaced proximity, different judges have used different methods:

– Caparo approach: 3 stage test of foreseeability; closeness of relationship; and ‘fair just and reasonable’. See Kirby J in Pyrenees Shire Council v Day (1998) 192 CLR 330; Perre v Apand (1999) 198 CLR 180.

– Incremental approach: reasoning analogically from decided cases and edging the law forward in small steps. Rejects ‘unifying principle’ approach to the duty question. See Brennan J in Sutherland Shire Council v Heyman (1985) 157 CLR 424 (at 481).

– Reasonable foreseeability: (McHugh J in Tame and Annetts) returning to the “simple” neighbour principle and focusing on the word “reasonable” as the limiting factor on foreseeability.

– Salient features approach: (Stephen J in Caltex Oil v The Dredge ‘Willemstad’ and Gummow J in Perre v Apand)

• Focus on facts of each category of case to identify particular features which might give rise to a DoC. Not always clear whether this is part of “reasonably” foreseeable question, or whether it is a separate control test in determining duty of care.

• Features include: control, vulnerability, indeterminacy.

Current approach for DoC

1. Recognised &

compensable form of harm.

Harm must also be reas. foreseeable

result of Def’s conduct. ie. analogy with

established category/ies of duty

cases.

2. Any specific problems

associated with that particular category/ies of case?

Salient features approach relevant here to focus on

relationship between Def and Pl. (eg. Vulnerability)

3. Judicial evaluation of factors for and

against DoC.

Current approach: evidenced in Sullivan v Moody.

Current approach for DoC

• Factors might include:– Type of legally recognised right the Pl claims Def has infringed (eg. property or commercial

rights): Woolcock St Investments v CDG Property (2004) 205 ALR 522; Harriton v Stephens (2006) 226 CLR 52.

– Nature of rship between Pl & Def compared with other duty rships: Tame v NSW; Annetts v Aust Stations; Bryan v Maloney (1995) 182 CLR 609; Graham Barclay Oysters v Ryan (2002) 211 CLR 540.

– Factual context, inc. degree of control exercised by Def over situation: Woolcock St Investments; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; Perre v Apand (1999) 198 CLR 180.

– Vulnerability of the Pl and degree of self-protection: Hill v Van Erp (1997) 188 CLR 159; Gifford v Strang Patrick Stevedoring (2003) 198 ALR 100; Harriton v Stephens.

– Need to preserve coherency of law: Sullivan v Moody; Koehler v Cerebos; Graham Barclay Oysters v Ryan.

– Indeterminacy issues: Caltex Oil v The Dredge ‘Willemstad’; Harriton v Stephens; Leichardt Municipal Council v Montgomery; Brodie v Singleton Shire Council.

– Ethical and moral considerations: see Lord Atkin in Donoghue v Stevenson; Kirby J in Cole v Sth Tweed Heads Rugby League Football Club.

(from McGlone and Stickley)

Guiding principles

– Certainty– Adaptability – eg. McHugh J in Perre v Apand P/L (1999) 198

CLR 180:

While [abiding by precedent] is a sound policy because it promotes predictability of judicial

decision and facilitates the giving of advice, it should not always trump the need for desirable change in the law. In developing the common law, judges must necessarily look to the present and to the future as well as to the past (at [92]).

– Role of courts/parliament in law-making process: Eg Brodie v Singleton Shire Council (2001) 206 CLR 512

Issues to consider:

• What role should policy play in deciding whether a duty of care is owed in novel fact scenarios?

• Has the test for duty of care ‘moved forward’ or simply gone in circles since Donoghue?

Review

In this module you have learned to:• Identify the basic elements of a negligence action;• Discuss and explain the role and meaning of ‘duty of care’ in

the tort of negligence;• Explain the Australian test for duty of care and have an

understanding of the various control tests and limiting factors used by the Courts;

• Apply your understanding of duty of care principles to fact scenarios; and

• Discuss the different views on the role of policy factors in establishing negligence actions.

Acknowledgements – References

• Danuta Mendelson, The New Law of Torts (2nd ed 2010), published by Oxford University Press.

• Rosalie Balkin and Jim Davis, Law of Torts (4th ed, 2009) published by LexisNexis Butterworths.

• Julia Davis, Connecting with Tort Law (2012) published by Oxford University Press.• Bernadette Richards, Karinne Ludlow and Andy Gibson, Tort Law in Principle (5th ed,

2009) published by Thomson Reuters Lawbook Co.• Frances McGlone and Amanda Stickley, Australian Torts Law (2nd ed 2009)

published by LexisNexis Butterworths.• Martin Davies and Ian Malkin, Torts (Focus Series, 6th ed, 2012) published by

LexisNexis Butterworths.• Carolyn Sappideen, Prue Vines, Helen Grant and Penelope Watson, Torts

Commentary and Materials (10th ed, 2009) published by Thomson Reuters Lawbook Co.

• Sarah Withnall Howe, Greg Walsh and Patrick Rooney, Torts (LexisNexis Study Guide, 2nd ed, 2012) published by LexisNexis Butterworths.