Download Negligence and Duty of Care: Understanding the Legal Elements and Cases and more Study notes Law in PDF only on Docsity! NEGLIGENCE – DUTY OF CARE Elements of negligence: - Defendant must have owed a duty of care to the plaintiff; - The defendant must have breached that duty; - The defendant’s breach of duty must have caused damage, of a legally recognised kind, to the plaintiff; - The damage must not have been too remote; - Does the defendant have a defence? Duty of Care The Court’s Approach 3 categories of duty of care: 1. Situations in respect of which it is settled law that a duty of care exists 2. Situations in respect of which it is settled law that no duty of care exists; 3. Situation in which there is no settle law telling us whether or not a duty of care exists General Test – Reasonable Foreseeability Was it reasonably foreseeable that, if the defendant was careless in engaging in the general activity in question, the plaintiff, either as an individual, or as a member of a particular class of people, might have been harmed? Donoghue v Stevenson FACTS: - Young man went to café with Mrs Donoghue o Bought ginger beer with ice-cream - Ginger beer came in opaque bottle - Owner of café poured some ginger beer into ice cream - Mrs Donoghue went to pour remainder o Decomposed remains of a dead snail fell from the bottle - Prior to this case, no general test for duty of care - Mrs Donoghue sought to sue manufacturer of ginger beer in negligence ISSUE: Did drink manufacturer owe her a duty of care? HELD: - There must be some principle underlying that specific relationships to which the court held a DOC attached that can be applied to new cases - Defendant intended for the drink to reach the consumer unopened o Should have reasonably foreseen injury to the plaintiff if reasonable care wasn’t taken o Duty of care was owed Issues with general test: - What degree of risk must be able to foresee? Caterson v Hearse NSW Court of Appeal held that it should be reasonably foreseeable that the defendant’s actions would be likely to injure the plaintiff. This was overturned in the High Court where Barwick J established that it was enough if it was reasonable foreseeable that the defendants actions would not be unlikely to harm the plaintiff. Sullivan v Moody It must be reasonably foreseeable, that if the defendant did not take reasonable care, there would be a risk that the plaintiff would be harmed that was not fanciful or far-fetched. Chapman v Hearse FACTS: - Chapman negligently collided with car in front of him and was thrown to the road - Dr Cherry was driving by and stopped to help him - Mr Hearse ran into Dr Cherry and killed him o Cherry’s estate sued Hearse for damages o Hearse sued Chapman for his original negligence - Hearse had to show that Chapman owed a duty of care to Cherry - Chapman contended that when he acted negligently, the series of events that led to Cherry’s injuries were not reasonably foreseeable HELD: - Chapman’s contention rejected o Specific series of events does not need to be reasonably foreseeable - It is only necessary that harm of some kind was foreseeable from the general activity in question - Vulnerable plaintiffs If a plaintiff is especially vulnerable to a particular kind of harm, so that activity that would not harm someone who was normal would harm the plaintiff, will that harm be regarded as reasonably foreseeable for the purposes of whether there is a duty of care? Levi v Colgate-Palmolive FACTS: - Received free samples including bath salts o Skin became red and itchy - Levi sued for negligence o Levi had allergies, effects would not have occurred HELD: - Duty of care only arises when a reasonable person ought to realise that her actions may cause injury to other if she is careless - Where the act is incapable of injuring an ordinary person, no duty arises simply because a person who is abnormally susceptible may be affected
