tute answers can be added at the end of each section or can be integrated throughout.

1.duty of care

DUTY SITUATIONS:

established categories: requiste duty of care is owed:

a)manufacturer-consumer; Donoghue v Stevenson [1932]: owe a duty of care to a wide class of persons(consumers)Relevant to Dvs: Immediately using defective goods: Heaven v Pender [1883]: the rule includes the case of goods supplied to be used immediately by person or class of persons if he thought the goods would probably be used before a reasonable opportunity for discovering any defect and where the thing supplied is of such a nature that a neglect of ordinary care or skill as to its condition or the manner of supplying it would prob cause danger to the person for whose use it was supplied. Exception: This excludes situations where it would be a chance by whom they would be so used or whether they would be used or not or uncertainty in any of the above matters in previous paragraph. Including goods of such a nature that want of care or skill as to their condition or the manner of supplying them would not probably produce danger of injury.

b)users of the highway; owe each other DOC: Chapman v Hearse(1961), Watt v Rama (1972)

c)employer-employee (master-servant): Behrens v Bertram Mills Circus [1957]:there was a clear duty of care, taking a herd of elephants near the side show = chance of reasonably foreseeable risk.Facts:Circus. One of the side shows = act performed by small people. Big top=elephant acts. customer secured the lead of the dog to a crate outside sideshow. Later, the elephants were going past in single file, dog reared/barked at them so they trampled the sideshow and some people.

d)occupier-visitor;s.14 Wrongs Act 1958 (Vic)

Wheat v E Lacon & Cok Ltd [1966]If occupier has significant control of the land and they ought to realise that a failure to make an area safe ay injure those who come into that area, they are liable. . Australian Safeway Stores v Zaluzna (1987): In determining the liability of an occupier it is not necessary to determine whether they owe a special duty of care as an occupier or an ordinary duty of care. All that is required is to apply the ordinary principles of negligence.

e)doctor-patientif you present yourself as being capable of amputating legs, you must take reasonable care.

f)teacher-pupil;Barnes v Hampshire CC [1969]: boy released from school 5 minutes before the proper hour, ran into road and was injured, the school breached duty of care to take reasonable precautions.

g)the ‘rescuer’;

Wagner v International RR Co.(1921)Person who created peril owes DOC to a person taking it upon themselves to reasonably risk their own injury by assisting in an emergency.

Videan v British Transport Commission [1963]: Anybody who reasonably goes to assist is owed a duty of care. Young boy wandered onto railway track, didn’t realise the danger as he was 6, adult station employee who got onto track to get him out of there was owed DOC.

Established rules concerning…:

Illegal activity: Gala v Preston (1991)If plaintiff is engage in illegal activity when they sustained loss or injury, defendant does not owe a duty of care

Intoxication: Cole v South Tweed Heads (2004) no general duty imposed on a supplier of alcohol to take reasonable care to protect plaintiff from the risk of physical injury as a result of self-induced intoxication.

Motor Accidents Insurance Board v Scott [2009] It was not submitted that either the Proprietor or the Licensee owed a duty of care that required them to monitor or minimise the service of alcohol to Mr Scott.

Intoxication DOC does exist in “exceptional” cases: Motor Accidents Insurance Board v Scott [2009].39 eg: those where “a person is so intoxicated as to be completely incapable of any rational judgment or of looking after himself or herself, and the intoxication results from alcohol knowingly supplied by an innkeeper to that person for consumption on the premises”.40 Blow J thought that it would be reasonable also to make exceptions for intellectually impaired drinkers, drinkers known to be mentally ill, and drinkers who become unconscious.41

If not in est category, to see if DOC owed-Ask: would a reasonable man in D’s position have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff?

Apply GENERAL RULE (usually for phys inj or prop damage):Donoghue v Stevenson [1932] ‘you must take reasonable care(objective test) to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour’(dnt think we need to establish this til later at breach:maybe jst look at neighbour principle first, ask tutor)

neighbour = ‘persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question (main bit to look at: neighbour principle)

Lack of “adequate precautions by inspection or otherwise may be characterised as carelessness BUT:

Could be almost anything: ‘Conception of legal responsibility may develop in adaptation to altering social conditions’

“the fact that there is a contractual rship bw parties which may give rise to an action for breach of contract does not exclude coexistence of a right of action founded on negligence.”

Physical inj and prop damage usually based on DvS: if someone is injured/prop damaged by my acts, normally it’s foreseeable.

Reasonable foreseeability doesn’t have to be precise: Chapman v Hearse (1961)To est doc: not necessary for plaintiff to show that the precise manner in which injuries were sustained is reasonably foreseeable: sufficient that the injury to a class of persons (of which he was one) might reasonably have been foreseen as a consequence. cherry was a member of a class of persons who was foreseeably at risk of injury from Chapman’s conduct.

representations and duty of care:

DvS: acts or omissions, therefore they used to rule out representations such as statements. Once again due to the notion of indeterminate liability, can a respresentation result in physical injury, if so, we can apply DvS. Statements causing different kinds of losses, normally financial, are rare:

i.resulting in physical injury-duty owed; Sharp v Avery & Kerwood [1938]One member agreed that he’d show the others the correct and safe route through the countryside, others followed behind, he carelessly drove off the road, the others followed and crashed. Held: he had undertaken a duty, they were owed a duty and could claim damages.

Clay v AJ.Crump & Sons [1964]

They plaintiffs were labourers on a demolition site, at one point they needed to knock away internal walls and needed to know whether it was safe to knock them away and it what order they could safely do it. The defendants were the relevant experts since they were the architects who had been maintained for the project, architects advised them how to proceed but the ceiling collapsed on them. Defendants made a representation about the safety, it has to be foreseeable, duty = not an issue here

ECONOMIC LOSSLaw’s reluctance to impose liability “in an indeterminate amount for an indeterminate time to an indeterminate class”: Yuen Kun Yeu v AG Hong Kong [1988] only those who are owed duty can sue, but if anyone who watches tv ad is owed duty of care etc then we cannot allow it, even if it is reasonably foreseeable.

Ands: 1960’s builders built flats, new owners of owed duty of care by original builders, duty could last 100 years. Time runs from the time of damage not from time of negligence.

Plane crashed in a village, passengers owed duty of care but villagers whos property was damaged and who are suffering trauma from witnessing it are also claiming that they are owed.

if financial advice is given gratuitously, broadcast generally, then we have an issue of indeterminacy, liability becoming expansive. Foresight isn’t enough. There has to be a special relationship between P and D: i think that the authority for this was Mutual: ASK C

Henderson v Merrett Syndicates Ltd. [1995] :Case concerns lloyt, if lloyt is sued, members of lloyt being sued. Around this time, lloyt found themselves having to call on names, to finance these payouts, the plaintiffs were a group of names, the names did not pay the agents, lloyts paid and provided them.

No contract bw names and agents, names contended that the agents owed them a duty of care, this was denied. However, by giving advice to clients, they will clearly rely on it, duty owed derived from hedley. REAL issue is whether there was negligence: trial judge said yes in terms of how they were advised to make their investments, action won.

Where advice is given to a specific person, such as hedley, or a group of people, such as Henderson, there is little difficulty determining whether there is duty and negligence as we can TURN TO HEDLEY.

PROBLEMS arise when we are looking at a indeterminate class of persons as we can't use hedley, must be something which narrows the liability. As well as foresight, there must be something which creates a proximity bw adviser and plaintiff.

Spring v Guardian Assurance [1995]Straightforward case: P = employee of D, some new guy got him dismissed, D is a large insurance company, they have a code of practice under statute, under a provision of that code,

they can only employ in responsible positions- a person of good character. Trial judge must have found that this was probably the reason that Mr H did not succeed. D’s had assumed it.

Trial judge: while it was inescapable that the reference was maliciously provided, it would have been defamatory. Defendants would have decided that they had a duty under statutory scheme to

They didnt have any reason to know the costings were going to bank and that a significant amount of money rested on the costings. so no duty: Tepko

Necessary for P to prove that D knew/ought to have knwon info/advice would be COMMUNICATED to p either individually or as a member of an unidentified class.

MISSTATEMENTS CAUSING ‘PURE’ ECONOMIC LOSS

Hedley Byrne & Co.v Heller&Partners [1964]Requirements: 1. Sphere of expertise2. Assumption of responsibility-Expressly or by implication from circumstances. 3. Reliance -by the other to exercise degree of care required by circumstances.4. Reasonable to rely5. D gave advice when he knew or ought to have known about reliance.

ALSO: according to Esanda case: In all circumstances must be reasonable that the plaintiff will rely on advice given.

Foresight of damage alone WONT suffice:Don’t use DvS: except for saying, law must so far as possible reflect standards of reasonable man.

Representations must normally concern a business or professional transaction(rather than social/informal)

Doesn’t matter if it’s an innocent misrepresentation, still negligence. (mutual life 1)

SHADDOCK V COUNCIL: Reasonable to rely: It was reasonable to rely on council as council was in position to have knowledge better than anyone and commonly followed practice of giving info as to that matter when requested. Would not have been reasonable to rely on unconfirmed answer given by an unidentified person on telephone.

Nature of inquiry:(their solicitor inquired) made it clear the gravity of the question and the importance of the answer. Has to be a ‘serious matter’.

D ought to have known about reliance: Council ought to have known they would rely. Would not have been reasonable for them to rely on phone call from unidentified person on phone but it was confirmed by certificate also.

Relevant to assumption of responsibility?: One who holds himself out as being in possession of special knowledge, especially when he has a monopoly of it and who further holds himself out as providing the info=subject to duty.

Contrast with sphere of expertise: Liability not confined to those who have special knowledge or skill or competence in sub matter of statement(DEPARTING from mutual life case). LIABILITY EXTENDS TO THOSE WHOSE PROFESSION OR BUSINESS IS TO GIVE ADVICE OR INFO.

MUTUAL LIFERelevant to sphere of expertise: DOC cast only on a person who carries on a business or profession which involves the giving of advce of a kind which calls for special skill or competence in the subject matter of the inquiry.

The lordships made it clear that it is no hard and fast rule. It’s just one step in step by step asertainment of limits of the new area (quote from shaddock)

Reliance: requirement that it’s a ‘serious matter’

Can be liable even if misstatement=honestly made and there’s no contractual rship bw parties.

MUTUAL 1968 NOT 1970 (do we need to say it regained vitality after consideration in shaddock?Anyway, repeated in San Sebastian Pty Ltd v The Minister (1986)-more original?)

Reasonable: circumstances must be such that it is reasonable in ALL the circumstances to rely

Long list of circumstances: pg 189

ESANDA

Reasonable foreseeability of loss=insufficient.

Require assumption of responsibility and reasonable reliance. These= special rship of proximity.

Necessary for P to prove that D knew/ought to have knwon info/advice would be COMMUNICATED to p either individually or as a member of an unidentified class.

That the communication of advice/info was for a PURPOSE that would v likely lead P TO ENTER INTO A TRANSACTION OF THE KIND p DOES enter into.

Reliance: commonsense requires that special relationship of proximity is marked either by reliance or by assumption of responsibility. Reliance does not arise unless

1.person providing info/aadvice has some special expertise or knowledge or some special means of acquiring info which is not available to recipient

2.according to ordinary principles, it has to be reasonable to act on info w/o FURTHER INQUIRY

3. reasonable for recipient to act upon info for the purpose for which it is used.

TEPKO: just goes through all the elements really well, great for structuring.

Mutual Life&Citizens Assurance v Evatt [1971]Evatt was a wealthy man with lots of investments, some of which were with a chain of electrical retailers called WG Palmer. Mr E was considering making another substantial investment in Palmer, he hesitated and wrote to Mutual Life asking for advice, he was a member of that company as he was a shareholder. Palmers was a subsidiary of mutual life. He got a favourable response, so he invested, he then lost that money because palmers folded soon after. Evatt said I relied on your response and wouldn’t have invested without it. 3-2

Evatt, Morris’s criteria: sphere of expertise, was not satisfied as mutual life was not in sphere of expertise whereas in hedley, they were.

What lord m had said was not only within a sphere of expertise, but an ability to make careful inquiry

COUNCIL CASE: If advice is given in regards to at least one of the functions, that will suffice, council’s work is extensive, but it is sufficient that one of the sections can do so.

Yuen Kun Yeu v Att.Gen.Hong Kong [1988]D= minister at Hong Kong, anybody in the world was entitled to invest in any of the companies, minister had series of statutory powers, could take a company off the company listing, eg due to knowledge that the company was financially unsound. The minister did delist a comp based on its financial unsoundness. Both of the groups were contending that they had put a lot of money in comp x. Minister attracted no duty of care towards those investors, ministers powers were extensive- including the listing but were not for the benefit of any particular investors, never put in place with a view to looking after ANY investors.

Second, hedley distinguished, minister had no contact and no dealings with any of these investors, didn’t do anything to bring himself under duty.

Thirdly, rejected on policy matters as they were saying that he owed duty to ‘whole world’, too wide/extensive liability.

In aus, decision followed in sandowwn??

Henderson v Merrett Syndicates Ltd. [1995] :Case concerns lloyt, if lloyt is sued, members of lloyt being sued. Around this time, lloyt found themselves having to call on names, to finance these payouts, the plaintiffs were a group of names, the names did not pay the agents, lloyts paid and provided them.

No contract bw names and agents, names contended that the agents owed them a duty of care, this was denied. However, by giving advice to clients, they will clearly rely on it, duty owed derived from hedley. REAL issue is whether there was negligence: trial judge said yes in terms of how they were advised to make their investments, action won.

Where advice is given to a specific person, such as hedley, or a group of people, such as Henderson, there is little difficulty determining whether there is duty and negligence as we can TURN TO HEDLEY.

PROBLEMS arise when we are looking at a indeterminate class of persons as we can't use hedley, must be something which narrows the liability. As well as foresight, there must be something which creates a proximity bw adviser and plaintiff.

Spring v Guardian Assurance [1995]Straightforward case: P = employee of D, some new guy got him dismissed, D is a large insurance company, they have a code of practice under statute, under a provision of that code, they can only employ in responsible positions- a person of good character. Trial judge must have found that this was probably the reason that Mr H did not succeed. D’s had assumed it.

Trial judge: while it was inescapable that the reference was maliciously provided, it would have been defamatory. Defendants would have decided that they had a duty under statutory scheme to

They didnt have any reason to know the costings were going to bank and that a significant amount of money rested on the costings. so no duty: Tepko

Welton v N.Cornwall DC [1997]P owned a farmhouse, adapted it so they could use it as a guesthouse. In order to do that they must be registered and local council inspects it. Since they were providing meals, their kitchens etc had to be in compliance with council's regulations. New inspector came along and said Council bylaws had been changed, kitchen had to be demolished and redone, inspector knew someone who can do it for them. Closed for the summer and they had to live elsewhere.

In the end they weren't happy with kitchen, when they investigated more they found out there were NO new bylaws, their old kitchen complied perfectly but the new kitchen doesn't comply.

Trial judge: HedleyB: D knew they'd rely on his advice and suffer ec detriment, court awarded money wasted on new kitchen, rent lost and rent which P paid for alt accom.

Calvert v William Hill Credit Ltd [2009]

D=large comp of bookmakers P's betting activities: net and telephone, became compulsive gambler.

P contacted his bookmaker D to tell them to close his account, never open it, never take a bet from me again.

D belonged to assoc of bookmakers who had introduced their own code of practice:should a client tell bookmakers he/she wanted a self exclusion, tell them its closed and there's a block on your account for 6 months.

P thought there was a block on his account but no, they just closed it, didn't block him, he went back and gambled lots, he won but he spoke to another employee and entered into a self exclusion with Elaine(employee): but she didn't do ANYTHING.

Again he gambled tonnes and lost. Sued D in negligence claiming to recoup that gambling loss, it is a PURE EC LOSS. He was not an indeterminate class, he was a client etc DUTY WAS IN PLACE. They were clearly negligent to their employees.

He lost his case on other grounds NOT ON DUTY GROUNDS. Causation grounds: if he hadn't placed bet with D he would have placed bet elsewhere, he had other accounts open with other bookies.

9.acts or omissions resulting in economic loss:

Weller v Foot&Mouth Disease Research Inst. [1966]D=scientific lab whose purpose was to find a cure for foot and mouth disease: a foot and mouth virus escaped from their lab, P said that= negligence. Virus got into environment and sparked off an outbreak of foot and mouth disease, those directly affected were owners of livestock in the vicinity and because of gov regulations the cattle would have to be destroyed. Other ppl were indirectly affected too. p=livestock auctioneers, the gov regulations also meant that no livestock could be auctioned.

Held: D owed them no doc for their economic loss, whereas duty was owed to the owners of the livestock.

the spectre of indeterminate liability. method of confining liability via duty. Legal rules come from CATTLE case.

i.the rule in Cattle v Stockton Waterworks Co.[1875]

where the damage is direct economic loss, ie.follows directly from damage to P’s property-a duty of care arises;P= builder, D had flooded the land, but it wasn't builders land. His loss arose cause he couldn't pursue his project in a timely fashion- this caused him financial loss apparently.

His claim was lost, he could not point to any damage to his property which D had caused. We can apply this in Weller case above. Can claim the REQUISITE property damage and then any ec loss that follows.

Where we are considering acts or omissions or behaviour as opposed to STATEMENTS, it's a different area to HByrne. CATTLE CASE is the case to look at in this context.

Electrochrome Ltd v Welsh Plastics [1968]CHECK IT IS RIGHT CASE

D were digging a public road, they should have known better than to sever an electricity cable, they cut off electricity to city, D was operating furnaces with molten metal in them, again the furnaces and metal ruined.

So they had their initial prop damage, so they could attach to this the ec loss. It was their third claim which was rejected, machines were mended and ready to go but another 14 hours elapsed before they had electricity, they couldn't point to prop damage for this third claim, it was merely loss of profit, the cable belonged to elec company so it wasn't damage to P's prop.

Perre & Ors v Apande Pty Ltd. (1999)

British Celanese Ltd. v Hunt (Capacitors) Ltd. [1969]Neighbours on same industrial estate, D stored large quantities of small strips of metal foil, they were light and drifted about in factory air. One of the strips escaped out of the ventilation. One of the strips landed on exposed electricity bars(belonging to elec company) so the power went off to the industrial estate. P wrote to D and said take better care of your strips. When it happened again, claimants furnaces shut down, there was molten metal in the furnaces and it solidified, to get it out the repairers had to rip out the contents and reline and repair the furnaces.

Because of the nature of the process involved, the stuff in the furnaces was now valueless. P claimed from D in negligence. Little point in claiming they weren't negligent considering prev incident.

They were entitled to claim cost of repairs and were entitled to attach to it the consequential ec loss, they werent claiming any ec loss beyond that, cattle is the authority.

Spartan Steel & Alloys Ltd. v Martin & Co. [1972]CHECK ITS RIGHT CASE

Fire hydrant belonged to water board but they had to turn it off the fix it. D could not use water in factory for a while, but it wasn't broken, D claimed loss of profits for the duration of the time when it was stopped to be fixed.

LOST according to cattle. There was nowhere for the economic damage to flow from, no prop damage.

ii. outside of the rule:

special factors can give rise to the ‘proximity’ between P and D so as to invoke the duty of care;

Caltex Oil Pty Ltd. v The Dredge ‘Willemstadt’(1976)Dredge owned by D. While he was working he was doing his best to avoid running over an undersea cable, he knew of it, he had a chart and a radar. Pipeline ended up becoming out of commission for lengthy period, Caltex had to adapt their premises so that they could send tankers around botany bay, puke up crude oil and bring it back. They were suing cause they said D caused the expenses associated with having to do that.

Cattle case: P's property not damaged, it's not theirs so usually no duty would arise. it would just stop with repair of pipeline and loss of stuff in it. Caltex couldn't ask for money for loss of oil cause it still belonged to the other comp.

Held: DOC had arisen because ON THEIR STATE OF KNOWLEDGE, d had ASSUMED it. Firstly D knew about the plaintiff, the premises and the business, they also knew specifically about the pipeline and ec interest of Caltex, they had also arranged their activities so as not to inflict the very ec loss which had agreed. These factors take Caltex OUT of the unknown class. There was no DOC beyond Caltex to Caltex's customers cause they're members of the unknown class

Perre & Ords v Apande Pty Ltd. (1999)D also involved in potato industry so bound to be aware of the conditions of the industry and regulations concerning the potato industry and aware of plaintiffs business.

D imported a new brand of potato from Holland and planted it in their Aus fields. They knew this potato was susceptible to a pest, they wanted their crop to suffer from it. They wanted to produce a pest free potato but to do that they needed pesty ones for their research.

Held: they should have known that their field was within some kms of p's field, so the pests might damage the plaintiffs crops. It didn't actually afflict neighbours healthy crop however they should have know of regulations which prohibit export of potatoes which grown within 20km of any pesty potatoes. so p was not able to export any potatoes interstate, they could only sell within the state. 60 percent of their potato crisps were sent interstate. Suffered economic loss.

Court followed caltex: should have known conduct was likely to inflict this ec loss. Does not extend to clients.

iii. wills cases:

If it is discovered during his lifetime, but we didnt know whether doc was owed by the solicitor to the beneficiary, we didnt really know the type of loss, this hs been before courts elsewhere out of aus, the modern decisions found a doc on the solicitors part, duty was assumed to a specific person or persons and solicitors knew any detriment must be loss of a gift. when the position first presented itself in aus, it was the duty question was bypassed because it was held that there had been no loss because there was no....errrrrrr confused... 2.09pm

beneficiary is automatically exlcuded, P lost the prospect of the gift under the will.

without any particularly impressive reasoning, hcourt said loss ....under a will is actionable damage.

doc arose with statements and hedley byrne. hawkings and clayton: the case is distinguishable,

Hawkins v Clayton [1988]Hill v Van Erp [1997]Sydney solicitors kept the only copy of a will at their offices.Beneficiary under will was also executor of the will. will filed. executor only discovered the death more than 6 years later. during that period the estate decayed as it wasnt looked after. eg house had been left neglected

hcourt saw these claims as claims of ec nature, found to be negligent because it was encumbent upon them to take some reasonable steps to locate and inform the executor, brought themselves under doc.

iv.liability for lobsters;

Muirhead v Industrial Tank Specialities Ltd. [1986]P went to D with a plan, they would construct a unique deep seawater tank, it needed an elaborate series of electrical parts, they went to a french company called leeroy summer and they supplied pumps to its for the tank

P set it up, put his young lobsters in, one night, tragically it shut down over night and the lobsters were floating at the surface of the tank. he swiftly mitigated the loss, boiled them and refrigerated.

he sued its and was successful, tank was not fit for the purpse for which it was supplied. he could claim all his ec losses but its went into liquidation and couldnt recover it. he then sued leeroy for negligence, apply cattle case: he can claim for prop damage the dead losters and loss of profits and the wasted money attending to the pumps

Building cases:Council and architecht’s liability to clients:Voli v Inglewood Shire Council (1963)

Liabilities of architect to his or her clients: “must bring to the task he undertakes the competence and skill that is usual among architects practising their profession. He must use due care.” If he fails and client loses money, he’s liable under contract and tort.

Architect not relieved of duty just because plans submitted to Public Works Department (PWD)(council ppl) and no objection was made by them

Council had duty to make sure premises safe for purposes used:

Council liable for negligence of architect even though independent contractor: the case is one of those in which an employer remains liable to third parties for the consequences of the negligence of an independent contractor, just as he would be if it were his own negligence or that of his servant. directly liable for failure of officers inspecting plans.

Council and architect should bear damages equally.

Liability to third party, “for the reasonably foreseeable consequences of careless or unskilful conduct, an architect is liable to anyone whom it could reasonably have been expected might be injured as a result of his negligence.

Obligation not co-extensive with subsequent occupier.? Does it extend to subsequent owners?

Designer of a structure’s duty to ppl erecting the structure: Slivak v Lurgi (Australia) Pty Ltd (2001) The person who designs the structure has a duty to “ensure so far as is reasonably practicable that the structure is designed” so that those erecting it are “safe from injury and risks to health”. It is not a duty to ensure that those erecting the structure are safe from injury and risks to health.

The fact that design measurements do themselves descend to millimetres is in my opinion, itself a clear indication that precision is intended, important, and requiring of strict adherence. The primary judge and the Full Court were therefore right to dismiss Mr Slivak's case against the designer.

Had the cell plate in question and its support structure conformed to design or to the design tolerances specified by Lurgi, it would have been properly supported and would not have fallen.

To determine what is “reasonably practicable” it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk.

Builder of house owes duty of care to subsequent purchasers if defective quality of building work causes pure economic loss: Bryan v Maloney (1995) : “if theres no intervening negligence or other causative event, the causal proximity between the loss and the builders lack of reasonable care is unextinguished by either lapse of time or change of ownership”

it is obviously foreseeable by such a builder that the negligent construction of the house…is likely to cause economic loss”

Principles which were engaged in this case depended on the assumption of proximity which =assumption of responsibility or known reliance or a combination of the two?

where the economic loss follows directly from damage to P’s property- a duty of care arises; Weller v Foot&Mouth Disease Research Inst. [1966]

Liability to subsequent purchaser, Defect in work performed by independent contractor, builder not obliged to inspect contractor's work: Zumpano v Montagnese [1997] The class of persons to whom is owed the duty of care actually recognised in Bryan v Maloney is purchasers of the house. On the alternative submission now being considered, the class of persons to whom the duty is owed is not purchasers of the house but only such of them as have bought the house as a “builder's own home”.

According to Bryan v Maloney, as I understand the basis of the decision, a builder erecting a house under contract with the building owner should have in contemplation, as persons who may be financially injured if there is negligence in the construction of the house, any person who may purchase the house at any time after it has been erected

On the alternative submission put forward by the Montagneses, a builder must have in contemplation, as persons who may be affected by a want of care in the construction of the house, some only of the class of possible purchasers. Should the builder, 40 or more years before the house being sold, have had in contemplation when he built the house the possibility that after his death an auctioneer might announce before bidding commenced that the late Mr. Jones was a builder and had built the house for himself? I do not think it possible to define the suggested class in a satisfactory way, or appropriate as a matter of policy that a duty of care should be recognised for the benefit of the suggested class.I therefore respectfully differ from his Honour and conclude that no duty of care should have been held to exist in this case. Appeal allowed, builder side won.

Requirement of vulnerability to economic consequences of negligence: Woolcock Street Investments v CDG Pty Ltd (2004)Vulnerability can be ‘by reason of ignorance or economic, social or political constraints’ or because they were exposed to a risk which they were unaware of and could NOT have protected themselves from. Decisions after Bryan and Maloney reveal that proximity is no longer the determinant in this area.

Other: eg‘lost opportunity’,‘mere grief’: where there is no duty , eg a person misses an interview because of conduct.

Harriton v Stephens (2006) : harriton went to see her gp stevens, she explained that she’d been recently very sick and she believed that she was pregnant, she also felt that she had german measles and she learned that shed been close to some people who had german measles, she was well aware of the implications of the foetus if she was correct. P thinks she has german measles, told D that if she was right, she wanted abortion. D, on basis of tests he ordered, tells her no measles. Baby then born with severe defects, which meant that she MUST have had measles. The CHILD sued the doctor. No argument of duty of care and negligence. Complications:

In watt and rama, the driver clearly CAUSE D the injuryBut the doctor didn’t CAUSE the downs syndrome

Public policy requires that we cannot endorse this as damage deserving of compensation, how can we compare non existence with existence and say that the non existence is worst.

High court denied claim, wrongful life does not constitute damage.

policy’ factors; ‘reference to influences on decision which are other than precedents. ii.government & resource allocation: eg. A person is injured and waits for three hours for an ambulance and dies, the persons case is that the crew were negligent, they should have got here earlier: standard negligence claim

vs government should have put more ambulances on the road so they were negligent. You cant do this one as gov and resource allocation is considered to be non judicial.

iii.insurance: presence of modern third party liability insurance, compensation is spread amongst users or consumers of goods and services. Not very often that one can point to an organisation, certainly not an insurance company, going broke.

DUTY TO CONTROL OTHERS ARISES WHERE:

a)where special relationship exists;Carmarthenshire CC v Lewis [1955]:

Held: they did owe a duty of care, the duty was that of maintaining control over the youngsters, having regard to what youngsters may do.

Facts: P occupied and ran primary+preschool. Large green bars and gates around perimeter. Kindergarten teacher was in charge of 2 children in yard. She was absent for a matter of minutes. 4yo ran to gates, unlatched, ran out. Busy road outside. P had to swerve to avoid boy, P died.

Negligence =Failing adequately to secure the gates. Reasonable foresight, dvs P: of a foreseeable class.

b) where responsibility is assumed; Holgate v Lancashire CC [1937]

D assumed control of the mental person as he was in D’s institution, therefore D owed duty when mental person escaped and hurt P.

Detained in a psychiatric institution because of a history of mental illness which included a tendency to assault people violently. circumstances of his escape was found to be negligent. He assaulted P.

Kirkham v Chief Constable Manchester [1990]Police officers arrested Mr K. Mrs k told the police officers about Mr K’s propensity for self harm, capable of suiciding. Police officers failed to indicate suicide risk in the form that was given to prison officers (form specifically asks). He hangs himself. The police officers had assumed a degree of control over Mr K.Yes there was a duty of care, while generally they owed no duty to him in the first place.

Cf: Nsw: police noticed a gentlemen acting suspicious with garden hose, suspect he might kill himself, but in the end it was held that they did not have sufficient control and therefore no doc. Analogous to a rescue situation.

Home Office v Dorset Yacht Co.[1970]7 boys in rehabilitation. One weekend, out with supervisors, boys escaped from their control. Officers fell asleep and all they did was open door and left. They seriously damaged a number of yachts by colliding Held: officers had assumed a degree of control over the boys and had been negligent. Class of persons who would be closely and directly affected (dvs)= property owners within the vicinity.

Mitchell v Glasgow City Council [2009]One of the functions of D(council) was to house people. Mr drummond was a tenant of theirs, drummond attacked neighbour several times.This was reported to D(council). Council told drummond he was getting kicked out. Drummond murders neighbour.

Were glasglow in a duty to control drummond? rship with drummond in that they had some control, but only as a landlord so no.

In the alternative: given that the council knew of all the circumstances and had kept him up to date so far, they had brought themselves into a duty and they should have kept him upto date. Held: no.

In all these cases, it’s about failure to exercise control. In all these cases, we’re able to work with dvs in terms of duty and foresight. Usually we can do that for personal injury and property, however with property it’s possible to argue indeterminacy of liability. So in yacht case, we’re lucky as it was quite close by. if it took a year and a day and was far away, proximity is an issue.

ii. a duty of care does not arise where important policy considerations militate against imposing liability on D;

Harm to plaintiff is at least arguably reasonably foreseeable. However, there are policy reasons why they won’t create a duty. (Social resources and gov budgets)

Skuse v The Commonwealth (1985)Cant win if they think you’re asking for better allocation of gov resources, even if doc owed.P = barrister, he stood up to present his case, rifle was shot, he was seriously injured. He was suing the gov in negligence because of the lack of security at the time in the court house. He lost his action, held that the gov owed him no duty of care to protect him from that harm because it was found that what he was asking for was better allocation of resources in terms of security, implication that all courts had to have better security. Gentlemen who shot him was a gentlemen with a fiece temper who had been in dispute with landlord and was then annoyed/threatening his solicitors. His daughter called and said shooter was going to go and shoot someone but nothing further was done. Lecturer:‘On those points, my own feeling is that he would have had a case on that, there was an occasion to do something more that day, it would not necessarily have necessitated more security at all courthouses.

Hill v Chief Constable of Yorkshire [1987]Cant ask for more resources, even if doc owed.In Yorkshire, in the 1980’s, there had occurred a series of brutal murders, Caroline Hill ended up being murdered also. Similar to Jack the Ripper, victims were all young women, residents of Yorkshire. All brutally stabbed and mutilated, during late hours of evening. Letters were coming in to the police and press from killer, taunting police about their inability to locate him and promising next crime. Yorkshire set up a special police force, Caroline Hill sued gov in negligence, analogously with Skuse case, held that they owed no duty of care to safeguard her against the murderer. Principle reason, she was contending that they police should have allocated greater resources to the investigation(rejected for policy reasons) not and protect her as a member of an indeterminate class( rejected cause ‘indeterminate’.

Duty of care: they had got him shortlisted, they knew where he operated, and it wasn’t just anyone in the world, it was Yorkshire and it was near her home. Police were being hoaxed off the trail, trying to determine which were real and which were fake. Audio tape, ostensibly sent by ripper, at the time they were investigating suttcliffe and others, the accent didn’t sound like Sutcliffe, so they focussed attention on other ppl in their ‘shortlist’.

Introduction to torts: mod negligence structure, defences and acts

1. DOC

2. Breach issue: has d failed to demonstrate reasonable duty of care. Also, finding of reasonable care=no breach=no liabilityfailure to conform to standard of care as assessed by court as a matter of fact- the breach issue;Nova Mink v Trans-Canada Airlines [1951] Abandoned his usual flight route and flew another route, when the aeroplane flew over the mink ranch, the minks got upset and when they get upset they eat their young, this was property damage. So was there a duty of care? Airline said no, we wouldn’t know about mink ranches, plaintiff said well you ought to. In the end, this didn’t matter as regardless, there is no breach of duty as he HAD to depart from the route and fly low to protect passengers from risks of bad weather.

3.unless there’s damage, negligence action cannot be founded and some harms will not be considered damage but economic loss is considered damage. Damage must be caused by breach. Not too remote. Recognised by law. Damages: physical injury compensable. injury or damage resulting from breachthere must be a causal link between the defendant and the harm

the ‘causation’ issue;blood transfusion cases and cancer casesdidn’t know where blood was when it was infected with virus, who is to blame.

sufficiently close connection between the breach of duty and the kind of harm suffered-‘remoteness’;the less direct the claim, the more likely it is to be considered remote. let’s say he owes duty of care and negligence sets off a series of losses, eg went to hospital because of the bus driver who hit him, med expenses =compensable, but garden overgrowing and wife dying as a result=non compensable.

Palsgraf v Long Island RR Co. [1928] - At Trial: argument was whether the railroad was under a duty of care for damage. Judge

didn’t give a ruling of law. Judge put the issue to the jury.- Jury awarded Palsgraf $2000- Railroad appealed: Palsgraf lost appeal 2 -1. The reasoning of the majority was to do with

directness (remoteness issue) - the less direct the connection between the alleged wrong doing and harm the more likely not liable? The railroad through its guard must owe some sort of duty, even on early law possible to make out a duty of care. However the guard could not have forseen that Helen would have been harmed at all, damage was unforseeabel and unpredictable.

- we don’t use directness today but it’s a good way of looking at how remoteness is used.- Lecturer says: Case precedes DvS, yet the railroad must have owed some sort of duty to Helen while

she was on their premises, she was atleast some sort of invitee. However, it was not foreseeabl- Idea of remoteness - FACTS: Claimant Palsgraph with her Children making her way for a picnic lunch in the beach

in NY. Waiting for train. Palsgraf seated on the bench. Seated next to scales. Package that contained explosive fireworks by stranger fell on railway. Explosion had sent vibrations to her adjoining platform, sufficient to send the scales over, the scales fell upon Palsgraf and struck her neck and shoulder. Palsgraf suing the railroad for dmages (compensation for her injuries) Medical prognosis that it would be 18 months she would suffer with injuries.

General defences applicable in all torts:

no? conduct on P’s part which indicates acceptance of the particular risk (defence of volenti non fit injuria):

defendant may have agreed impliedly or expressly to a to accept a specific risk or a range of risks connected with the activity engaged in.

Eg. In Rugby or in entering a sporting arena, diving cases, key issue is proper number of warning signs available.

Volenti – Is a defence. One is not volent by any means to everything and actions can be complicated. Ie. In professional sport one is not volent to violent tackles.

or partially caused the harm which occurred (partial defence of ‘contributory negligence’); when d is responsible but p hasn’t been careful either. Both d and p have been at fault here, legislative reform changed the effect of contributory negligence: what the act does is to state that the action will not fail entirely but the reward of damages will be reduced to account for p’s careless conduct. Legislative change says: you don’t disallow the action but you reduce the damages.so it’s not A PROPER DEFENCE.

there are also specific defences, like for defamation for example.

Acts we’ll look at in torts:But Legsilation defeated it.

2 main pieces of legislation in torts:vi. Wrongs Act 1958 (Vic);s48 breach of duty

- Codifiying provision- Restate from the case law factors which are relevant in determining whether there has been

a breach of duty on any state of facts- ‘the court must take into account all the circusmtances’- ‘the court must have regard to the level of risk’

ss71-3 mental harm- Ammendements introduced in 2003- Depression – when a person is seriously injured – the consequences- Person not harmed but experiences harm of workmate.- Codifcication on case law. -

s25 contributory negligence- D was at fault. Legislative reform changed the effect of contributory negligence.- The act states that the action shall not fail entirely, But the award of damages shall be

reduced to allow for the P’s own careless conduct. - If the P is to blame as well you don’t disallow the action but you reduce the awarded actions.

To call it a defence is an error.s15 survival of actions for estate of deceased

- Negligence killed the claimant. - At common law the action required living claimant to pursue it. This is no longer the case

except for defamation. In the rest of tort law the action survives. This is by statutory provisions.

- S15 if a person negligently kills the P the action survives and can be pursued by a personal representative who can be appointed by the courts who will represent the estate. First the

estate can only win if the dead person could have won and any defences available against the deceased would be avaialable by the estate

- Estate stands in the shoes of the deceased. - Defamation dies with the party, but with the rest of torts the action survives, if a person

negligently kills the plaintiff, the action will survive, can be represented by an estate who stands in the position of the deceased plaintiff. They’ll only win if the dead person could have won.

- Defamation Act 2005

what is tort?Civil law action in which a person (plaintiff) who is wrongfully injured by another (defendant) seeks a remedy, normally in the form of damages.

the ‘privity’ principle ; Concept that you can only claim loss in contract. Only parties of a contract could enforce rights and liability.

Tweddle v Atkinson (1861):T expected to get a sum of money on his engagement day, his father and father in law made an agreement to give him money. FIL dies on day of wedding, estate refuses to pay it because it was the father and FIL who had the agreement, T wasn’t part of the agreement so he could not do anything.

exceptions to privity:by C16 strict liability for escape of mischievous objects; the Rylands v Fletcher action; significant threat to community like fire, reservoirs, dams

by C18 occupier’s duty towards ‘invitees’; if they’re on ur land, ur responsible

C19 injury caused by ‘inherently dangerous goods’; inherently dangerous goods that are put into circulation, Thomas v Wichester(check spelling)

3.’foresight’ (d.o.c)

Heaven v Pender [1883] per Brett MR liable because of the occupier thing

Grant v Australian Knitting Mills [1936]Can either pursue it based on contracts or torts. underpants had sulphur, he could have fallen back on contractual agreement as a buyer so he has 2 options:torts and contracts

Hayley v London Electricity Board [1965]dug up public road, left a light and a sledgehammer there, Hayley was blind and fell into manhole, the question was: should he ought to be foreseeable? Yes, also because there was a large blind population in london at the time.