Download Negligence and Duty of Care: Categories and New Situations and more Study notes English in PDF only on Docsity! NEGILIGENCE Duty Situations: i. Established Categories: a) Manufacturer-‐consumer; manufacturer owes a duty of care to the consumers of that product, not just the purchaser. (Donoghue v Stevenson) b) Users of the highway; Watt v Rama (1972)-‐ P was a child whose mother had been driving a vehicle, the other driver was at fault for the collision, driver owed duty of care to mother. Child born with injuries attributed from the collision. Court extended road user rule and said that mother owed a duty of care to her child while on the road. c) Employer-‐employee (master-‐servant); Provision of tools, condition of premises, standard: all reasonable care from all circumstances, employer owes duty of care to employee. Behrens v Bertram Mills Circus [1957]-‐ Travelling circus, minor events around big top, side show included an act performed by small people. Customer unsuccessfully tried to purchase tickets for big top, sold out. Bought tickets to side show. Had children and dog. Dog was not secured properly, elephants had to walk past sideshow, one elephant broke away because of the dog, small people were tread on and some suffered nervous shock. Small people sued employers, found to be in breach of their duty of care and liable in the tort of negligence. Should have known the risk of elephants walking past, and exercised a reasonable standard of care. d) Occupier-‐visitor; s.14 Wrongs Act 1958 (Vic) e) Doctor-‐patient; f) Teacher-‐pupil; Barnes v Hampshire CC [1969]-‐ P aged approx. 5, released from school early, no one was there to watch him, ran over the road and injured, sued school successfully, were in breach of duty of care. g) The ‘rescuer’; (anybody who goes and assists in a dangerous situation) no duty to act to assist others generally, law does not require you to rescue a stranger put yourself at risk, person taking it upon themselves, we owe rescuer a duty of care. per Cardozo J.in WagnervInternationalRRCo.(1921) Videan v British Transport Commission [1963] Young boy was in danger, at that time even though he was 6, he was a trespasser, he might have been denied a duty of care, as he was a trespasser. ii. New Duty Situations: a) General trend of expansionism; Asquith LJ. in Candler v Crane, Christmas Co. [1955] b) Trends re Categories of Damage; i. Physical/personal injury: courts have been generous in awarding P ii. Property damage: courts have been generous in awarding P, normally foreseeable, normally founded on Donoghue v Stevenson. iii. ‘Pure’ economic loss: usually follows from negligent statement e.g. financial advice, if the advice is passed by the client to others or broadcasted, liability becomes expansive, indeterminate liability, foresight of that duty alone does not find a duty of care, requires more iv. Other e.g. ‘lost opportunity’, e.g. patient had a 1/100 chance to live had they had the surgery, no duty of care. ‘mere grief’à no duty e.g. a person misses an interview due to a negligent conduct. Harriton v Stephens (2006) -‐ P (child), mother felt she was pregnant and German measles, aware of implications for foetus if she was correct. Told Dr. Stevens to do tests, Dr. Stevens told her she was pregnant but did not have the virus, the child was born with severe mental and physical damage. P sued Dr. for negligence. New type of damages claim. Not a claim for personal injury. Whether there was a duty of care owed? Dr. did not CAUSE P’s injuries. Her claim was not for physical injury, it was a claim for her mere existence. She had down syndrome Mother would have aborted the foetus had she known. Public policy says we cannot endorse this as a claim for damages. How can non-‐ existence vs. existence and say 1st is better than the other. Damages in categories, if not then under Donoghue v Stevenson and foresight principal. c) The role of ‘foresight’ and ‘proximity;’ d) ‘Policy’ Factors; i. Potential for claims-‐social effects: indeterminacy (not established, unclear) ii. Government & resource allocation: court is unlikely to view this as duty of care in negligence, on part of Gov. e.g. person waited for ambulance too long and died, resource allocation is felt to be not judicial but governmental. iii. Insurance: relates to loss spreading theory iv. Loss spreading theory: relates to insurance companies