Principles of Duty of Care and Negligence, Exams of Calculus

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Table of Contents Duty of Care 1 Breach of Duty ll Causation 17 Remoteness of Damage 21 Defences 23 Statutory Authorities 28 Case Key principle DUTY OF CARE Donoghue v Stevenson (1932) Jaensch v Coffey (1984) Kuhl v Zurich Financial Services (2011) ‘Neighbour principle’ à “ You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour” Neighbour: “persons who are in so closely and directly affected by my act” Sets out the principles of negligence DUTY OF CARE CAN BE ESTABLISHED THROUGH: Duty of care established categories “Findings as to the formulation of the duty of care will necessarily depend upon the alleged negligence and the evidence led at trial” à ultimately depends “on the circumstances of the case” [22] Examples: Motorist and other highway users: March v Stramare (1991)171 CLR 506 • defendants were fruit and vegetable merchants à had parked their truck in the middle of a multi-laned road at night in order to load it with fruit and vegetables à plaintiff who was drunk and speeding, drove his car into the rear of the truck and suffered severe injury Occupier of land and lawful entrant: Australian Safeways Stores v Zaluzna (1987) 162 CLR 479 • Plaintiff [Zaluzna, respondent] went into the Defendant’s store [Australia Safeway, appellant] à It was raining outside so the foyer was wet and the defender slipped and injured himself Manufacturer and consumer: Donoghue v Stevenson [1932] AC 562 Employer and employee: Kondis v State Transport Authority (1984) 154 CLR 672 • Plaintiff injured by the jib of a crane which fell on him à crane was operated by an independent contractor who had been hired by the defendant employer à the failure of the independent contractor to adopt a safe system of work breached the duty of the employer to ensure that reasonable care was taken for the safety of the employee Doctor/dentist and patient: Rogers v Whitaker (1992) 175 CLR 479 • defendant was a specialist ophthalmic surgeon who failed to advise a patient of a relatively small risk (1:14,000) that an operation to improve the vision in one eye à may lead to a condition called ‘sympathetic opthalmia’, causing loss of sight in her healthy eye à duty owed even though evidence showed that because she didn’t ask, he had no duty Hospital and patient: Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 School and pupil: Commonwealth v Introvigne (1982) 150 CLR 258. [1964] X and Y v Pal (1991) Kosky v Trustees of the Sisters of Charity [1982] Waller v James [2002] Watt v Rama [1972] Lynch v Lynch (1991) Bowditch v McEwan [2003] CLA s 71 Cattanach v Melchior (2003) Waller v James; Waller v Hoolahan [2006] Winterbottom v Wright (1842) classify ‘atypical plaintiffs’ • Defendant argued no DOC to give consideration to the blind/inform because no reasonable foreseeability; only reasonable foreseeability to ordinary person à court held that although the risk of a blind person coming across the trench is slight, it was nevertheless reasonably foreseeable that a blind person may come across the trench UNBORN CHILD Unborn child is owed duty of care à action must only be brought after birth (Attorney General (Qld) (Ex rel Kerr) v T (1983) Before conception: defendant liable for negligent acts/omissions before conception à if within reasonable time frame between conception and birth • Doctor failed to do routine test for syphilis à DOC owed to mother, child and any future child conceived by the mother • Mother given incompatible blood transfusion leading to blood disease affecting plaintiff à no DOC because blood transfusion occurred 8 years before plaintiff’s conception Ex utero (IVF): defendant owes DOC to child not to injure before/during pregnancy à but not to child through advising parents about termination • Plaintiff born with cerebral thrombosis à no DOC to the child in relation to advising the child’s parents of the possibility of termination of pregnancy to prevent child’s birth In utero: Defendant (driver) owes DOC to pregnant mother because it injury to child is reasonably foreseeable • Pregnant woman involved in car accident and foetus born with disabilities à held DOC because the pregnancy reasonably foreseeable by members of the community • This extends even if fault of mother’s negligent driving and child sues mother • However this does not extent mother’s negligent lifestyle issues Wrongful birth: Defendant (doctor) does not owe DOC to parents for wrongful birth à in relation to claiming damages for economic loss from raising child • This reverses decision of Cattanach v Melchoir (whereby defendants received damages from economic loss Plaintiffs may recover economic loss damages where defendant’s negligence caused child being born with disability MANUFACTURER DUTY TO CONSUMERS Contract Defendant (supplier) owes DOC to plaintiff (consumer) à through contract (i.e. where a person purchase a product from another) Competition and Consumer Act (2010) Section 2 D v S Grant v Australian Knitting Mills Ltd Australian safeway stores Pty Ltd V Zaluzna (1987) Thompson v Woolworths (Qld) Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) Adeels Palace v Moubarak (2009) Hamilton v Nuroof (WA) Pty Ltd (1956) Koehler v Cerebos (Australia) Ltd (2005) Statute Defendant (manufacturer/importer) owes DOC to plaintiff (Consumer) for safety defect Tort Defendant (manufacturer) owes DOC to plaintiff (end consumer) • “The essential point [in Donoghue v Stevenson]… was that the article should reach the consumer or user subject to the same defect as it had when it left the manufacturer. That this was true of the garment is in their Lordships’ opinion beyond question” (67) • This particularly relevant whether there is no action in contract OCCUPIERS LIABILITY Defendant (occupier) owes plaintiff (entrant) DOC if lawful entrance • “In the circumstances of the present case, the fact that the respondent was a lawful entrant upon the land of the appellant establishes a relationship between them which of itself sufficies to give rise to a duty on the part of the appellant to take reasonable care” In determining DOC, courts will look at use and nature of the occupation • DOC extended to plaintiffs (delivered goods to the store) because they were “ regular visitors to the premises, for a mutual commercial purposes, and it was reasonable to require the respondent to have them in contemplation as people who might be put at risk” + control by the defendants of a delivery system DOC does not extend to controlling the acts of third parties (criminal) • This is because there’s no reasonable foreseeability that the harm would happen to the plaintiff DOC may be influenced by relevant statutes • Adeels owed DOC because “they were, therefore, premises where it is is and was well recognised that care must be taken lest, through misuse and abuse of liquor, ‘harm [arise] from violence and other anti-social behaviour’ EMPLOYER/EMPLOYEE Non-delegable DOC • Calculus for DOC may include: degree of injury likely to result; degree of risk; the degree of risk if any, involved in taking precautionary measures DOC does not extend to mental harm cases caused by employers that is not reasonably foreseeable • Mental harm not reasonably foreseeable because plaintiff agreed to the work load and did not complain MENTAL HARM 32 Mental harm-duty of care Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] Tepko Pty Ltd v The Water Board (2001) Mutual Life & Citizens Assurance Co Ltd v Evatt (1968) (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. (2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following: (a) whether or not the mental harm was suffered as the result of a sudden shock, (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril, (c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril, (d) whether or not there was a pre-existing relationship between the plaintiff and the defendant. (3) For the purposes of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff. (4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff. Mental harm in notes page 167 PURE ECONOMIC LOSS: NEGLIGENT MISTTATEMENT AND NEGLIGENT ACT Where the only injury suffered is economic à there must be other factors, in addition to reasonable foreseeability, which mitigate in favour of the imposition of a duty of care NEGLIGENT MISSTATEMENT Defendant owes DOC to plaintiff if: • Defendant gives out information knowing it will be relied upon • It is reasonable for the plaintiff to rely on this information • Defendants (bank) therefore owed plaintiff (advertising agent) DOC à for providing plaintiffs with credit reference to a company that went bankrupts which they relied upon Defendant knows it will be relied upon • This is because of “the need for caution lest a duty of care by imposed upon a party who has no appreciation of, and could not be expected to appreciate, the implications o making an error” It is not necessary that the defendant possessed a special skill • Defendant (insurer) gave advice about investment in a company to plaintiffs (policy holder) which went into liquidation causing plaintiff economic loss è held that “ the elements of the special relationship to which I have referred do not require either actual possession of skill or judgement on the part of the speaker or any profession by him to possess the same. His willingness to proffer the Hollis v Vabu Pty Ltd (2001) Stevens v Brodribb Sawmilling Co Pty Ltd (1986) Deatons Pty Ltd v Flew (1949) Joel v Morison (1889) Rose v Plenty [1976] Bugge v Brown (1919) New South Wales v Lepore Ellis v Wallsend District Hospital (1989) There must be an employer and employee Relevant considerations to the relationship include: • Level of skill • Control over hours/performance of work • Uniforms • Superintendence of payments • Availability of holidays • Employed for main purpose of business However no single test à . The ultimate question will always be whether a person is acting as the servant of another or on his own behalf and the answer to that question may be indicated in ways which are not always the same and which do not always have the same significance” (37) Negligence occurred within the course of employment Authorisation: within the course of employment traditional defined by whether the defendant authorised the plaintiff to do something However, it is necessary to distinguish the acts of the employee from those they are employed to perform against those they are not employed to perform Passion and resentment: employer will not be vicariously liable • Barmaid threw glass not to maintain order but out of anger Unconnected acts: employer will not be vicariously liable • Employer’s vehicle used when driven when on ‘frolic of his own’ Employer prohibitions: employer will not be vicariously liable for those prohibitions which limit the sphere of employment (Lister v Hesley Hall Ltd [2001]) • Employer gave strict instructions not to let anyone on float/employ children à tortfeasor did both è this was seen as not limiting the course of employment and employer therefore liable • Employer asked employee (who cut thistle) to cook dinner not at the fireplace à employee did anyway and caused fire è this was seen as not limiting the course of employment and employer therefore liable: conduct must be “so distinctly remote” as to fall outside of scope of employment Criminal acts of employees: employer will be vicariously liable regardless of a criminal act à unless there is not a sufficient connection between acts done and employment • Sexual misconduct seen as deviating from scope è employer not liable NON-DELEGABLE DUTIES Factors relevant to non-delegable duties: vulnerability, control and criminal conduct Hospital and patient Commonwealth v Introvigne (1982) New South Wales v Lepore Burnie Port Authority v General Jones Pty Ltd (1994) Kondis v State Transport Authority (1984) Leichardt Muncipal Council v Montgomery (2007) School and pupil School will not be liable for intentional sexual assault despite not delegable duty Danger to neighbouring land users Danger to neighbouring land users puts the plaintiff in position in vulnerability à therefore non-delegable duty Employer and employee Failure of independent contractor to adopt safe system of work à breached duty of employer to ensure that reasonable care was taken for the safety of the employee Road authority and road users