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Negligence Duty Of Care Notes

Law Notes > Tort I (Intentional & Negligence) Notes

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Duty of Care Physical harm Established duty of care Doctor v Patient: Rogers v Whittaker Manufacturer v Consumer: Donoghue v Stevenson Teacher v Student: Commonwealth v Introvigne

* Neighbour principle & reasonable foreseeability is different, the former focused on the relationship between the victims or plaintiff and defendant; while the latter focused on the type of harm.

* Type of harm

* Individual plaintiff or ascertainable class of plaintiff

Driver v Passenger: Miller v Miller Employer v Employee: Voli v Inglewood Shire Council; Occupier v Entrant: Australian Safeways Stores v Zaluzna
Occupier v Licensees: Voli v Inglewood Shire Council;
Occupier v Trespassers: Hackshaw v Shaw

* However, an occupier of the land does not owe the plaintiff a duty of care if the injury was caused by a third party which is out of the occupier's control: Modbury Triangle Shopping Centre v Anzil Parent and Children (only when the child's conduct is under control): Smith v Leurs Supervisor of the person who should be under the control and the plaintiff who was injured by this oughtto-be controlled person, however, must prove the damage is foreseeable: Home Office v Dorset Yacht

* If the damage is not foreseeable, or cannot be decided, no action against the supervisor: NSW v Godfrey The person who creates the danger and the rescuer: Wagner v International Railway Co.

* It is not related whether or not there is an interruption of the act which finally led to the consequence of the injury, either negligent or wrongful, it is sufficient the defendant's negligent act cause the rescue: Chapman v Hearse Novel fact scenario Neighbour principle: Donoghue v Stevenson Reasonable foreseeability:
Incremental approach: McHugh J in Perre v Apand, In the absence of a unifying principle, the best approach in determining liability for the negligent infliction of economic loss is to develop the law incrementally.
Salient features: which had been raised up by Stephen J in Caltex Oil (Aust) Pty Ltd v The Dredge, and thereby was adopted by Gleeson CJ and Gummow J in Perre v Apand.
* Defendant could reasonable foresee the plaintiff as an individual or as a member of an ascertainable class of persons: Haley v London Electricity Board
* Vulnerability: Butterfield v Forrester

* Intoxication is not a consideration of vulnerability: Cole v South Tweed Heads Rugby League Football Club
* Indeterminate liability: Adeels Palace Pty Ltd v Moubarek; NSW v Godfrey
* Reliance: Commonwealth v Introvigne
* Policy consideration:

* When there is a conflict between the purpose of the legislation and the duty of care: Miller v Miller

* Police owes no duty of care to the potential victims of a serial offender before the offender is arrested: Hill v Chief Constable of West Yorkshire

* If the existence of a duty of care would impair the "coherence of the law", the assumed duty of care will not be imposed: Sullivan v Moody; Thompson v Connon Control:

* Under the control: Home Office v Dorset Yacht Company; NSW v Bujdoso

* Out of control: Modbury Triangle Shopping Centre v Anzil; Parissis v Bourke

Psychiatric Injury Psychiatric injury to rescuer: Wicks v State Rail Authority of NSW Psychiatric injury caused by property damage: Campbelltown City Council v Mackay Psychiatric Injury caused by the injury to the third party victim
* Pure mental harm

* s27 mental harm.

* s28(1) mental harm resulting from negligence.

* s27 pure mental harm.

* s31 recognised psychiatric illness: not an emotional distress, such as sad, sorrow; but a mental illness that caused as a consequential impact of the death of another person: Tames

* According to Wicks, s 30(2) relevant to foreseeability, but it is not a precondition to find a duty of care. Therefore, s 30 will be engaged in only where s32 is satisfied, i.e., a relevant duty of care is found.

* Need to establish the following points in s 32:
There is a common law duty of care in Tames that "normal fortitude" does not preclude the existence of a duty of care, but it is negatived by section 32(1) of the CLA. (limits in s32(1))
According to the legislation, the circumstances where "normal fortitude" can be found are listed in s32(2), but no further guideline as to the extent to which these criteria should be met, therefore, reliance back to common law to interpret the statue.
In Wicks, the Court interpreted the legislation by applying the principle in Tames, neither of the subsection under the s32(2) is a necessary condition. Instead, each of them is no more than one of several circumstances that bear upon the central question of foreseeability and the list under s32(2) is not exhaustive.

* s29 recovery available for nervous shock.

* Only if there is a duty owed by the defendant to the plaintiff, can s30 be relied on to check if the plaintiff is entitled to the recovery.

* List of s 30:
s30(1) prerequisite: "Pure mental harm" caused by defendant's negligent action or omission
s30(2) require the plaintiff "witness"/"at scene" the accident or "a close member of the victim's family
s30(5) definition of "a close member of the family".
s30(3) victim's contributory negligence.
s30(4) defendant's complete defence.
* Consequential mental harm

* s31 recognisable psychiatric illness

* s33 consequential mental harm recoverable General Negligence is an action on the case, therefore damage suffered by the plaintiff is the "gist of the action". The elements of negligence as an independent tort comprise a relevant duty of care owed by the defendant to the plaintiff and a breach of that duty which is a cause of the damage suffered by the plaintiff. As well, at common law, the damage suffered by the plaintiff must not, as a matter of policy, be "too remote" a consequence of the defendant's negligence. Legislation now requires the damage to be within the "scope of the defendant's liability".

* Duty of care

* Breach and damages

* Causation and remoteness

* Defence

* Damages Damage is an essential ingredient in an action for negligence; it is the gist of the action: Williams v Moliton Generally speaking, "there must be a temporal loss or damage accruing from the wrongful act of another, in order to entitle a party to maintain an action on the case: Williams v Morland Liability based upon breach of duty of care without proven loss or harm will not suffice. PHY SICAL INJURY A duty of care is the legal obligation to avoid conduct which involves the unreasonable risk of damage to others. Elements of Duty of Care

* On the balance of probability, the plaintiff must prove whether there is a duty of care

* Whether there is a duty of care is a question of law

* Reasonable foreseeability

* Plaintiff needs to be:

* An individually reasonable foresee plaintiff

* A member of a reasonable foreseeable class of plaintiffs

* Whether the damage of the harm is reasonable foreseeable?

* Consequential damage as a result of negligent conduct

* Highway accident :

* Property damage

* Physical damage

* Psychiatric damage Concept of Duty of Care The concept of a duty of care functions as a "control device" which allows the court to determine, as a matter of policy, the circumstances in which there should be liability for negligent conduct. Neighbour Principle

1. The plaintiff found the bottle of a ginger beer contained a decomposed remains of a snail.

2. The beer was bought by a friend for the plaintiff from a retailer.

3. The remains could not be detected before consumption because the bottle was opaque.

4. The plaintiff sued the defendant (the manufacturer), alleging as a result she suffered from shock and severe gastroenteritis. Closely and directly affected plaintiff Established DOC: Manufacturer & Consumer

Courts have experimented with various approaches to novel cases, developing duties incrementally (on a "case by case" basis), emphasising "salient features", and with due regard to policy considerations. Donoghue v Stevenson [1932]
The law concerns itself with carelessness only where there is a legal duty to take care. A person owes a legal duty to take reasonable care to avoid acts or omissions which he or she should reasonably have foreseen would be likely to injury his or her "neighbour", that is, another person "closely and directly affected" by that act or omission.


1. Seven youths escaped from the custody under the control of the three officers that had been employed by the appellant.

2. The youths damaged the respondents' yacht which was moored off-shore of the island

3. Though the youths wee themselves guilty of trespass to he respondents' goods, the respondents sued the appellant for vicarious liability for the tortious behaviour. Established DOC: Supervisor & Person under control

Incremental approach & Salient features

1. Plaintiff [Perre] had a contract to sell potatoes in WA

2. Defendant [Apand] supplied bad products which caused infection in a land belonging to Sparnon, the Plaintiff's neighbour.

3. WA Regulations meant that potatoes grown close to infected land cannot be sold in WA, therefore the Plaintiff's potatoes were not allowed in.

4. The Plaintiff suffered great economic loss

1. Ryan contacted hepatitis A after ate oysters cultivated by Granham Barclay in Wallis Lake, NSW. Liability should be imposed where "a reasonable person in the defendant's position could have avoided damage by exercising reasonable care and was in such a relationship to the plaintiff that he or she ought to have acted to do so." Range of the reasonable plaintiffs

1. The respondent, pursuant to statutory powers excavated a trench along a pavement in a London suburb.

2. To prevent persons walking along the pavement, their servants had put a punner-hammer across the pavement, the long handle of which stretched across the pavement and rested some two feet above the ground on some railings.

3. The appellant was blind and his stick missed the stopping punner-hammer.

4. As a result, he tripped and fell and rendered almost totally deaf.

5. Judgment for the appellant.

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 in question. I think that this sufficiently states the truth if proximity be not confined to mere physical proximity, but be used, as I think it was intended, to extend to such close and direct relations that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his careless act.

* [Lord Macmilian]
The cardinal principle of liability is that the party complained of should owe to the party complaining a duty to take care, and that the party complaining should be able to prove that he has suffered damage in consequence of a breach of that duty. Home Office v Dorset Yacht Company [1970]
A defendant may have a duty to supervise third parties and be liable for damage to the plaintiff's property caused by the conduct of the third party which is the very kind of thing that is likely to happen if the duty is breached.

* The special relationship can be widely construed like his: A is responsible for damage caused to the person or property of B by the tortious act of C (a person responsible in law for his own act) where the relationship between A and C has the characteristic: a. that A has the legal right to detain C in penal custody and to control his act while in custody; b. that A if he had taken reasonable care in the exercise of his right of his right of custody could have prevented C from doing the tortious act which caused damage to the person or property of B; c. that A can reasonably foresee that B is likely to sustain damage to his person or property if A does not take reasonable care to prevent C from doing tortious acts of the kind which he did. Perre v Apand (1999) Where a person knows, or ought to know, that his or her acts or omission may cause the loss or impairment of legal rights possessed, enjoyed or exercised by another, whether as an individual or as a member of a class, and that that latter person is no position to protect his or her own interests, there is a relationship such that the law should impose a duty of care on the former to take reasonable steps to avoid a foreseeable risk of economic loss resulting from the loss or impairment of those rights.

* Incremental approach: (McHugh J): "this Court no longer sees proximity as the unifying criterion of duties of care. Instead, there is a reasonable foreseeability test, followed by a list of considerations as to why a duty should imposed (or not imposed)"

* Salient Features: (Stephen J in Caltex Oil (Aust) Pty Ltd v The Dredge, and thereby was adopted by Gleeson CJ and Gummow J in Perre v Apand): plaintiff is no position to protect his or her own interests

1. defendant could reasonable foresee the plaintiff as a individual or as a member of an ascertainable class of persons

2. vulnerability

3. indeterminate liability

4. reliance

5. policy consideration

6. control Granham Barclay Oysters v Ryan (2002) Perhaps after 70 years of judicial consideration of the test of determining he existence of a duty of care, Australian law has returned to the fundamental principle that "a duty of care will be imposed when it is reasonable in all the circumstances to do so". Haley v London Electricity Board [1965]
It was the duty of those who engaged in operations on the pavement of a highway to take reasonable care not to act in a way likely to endanger other persons who might reasonably be expected to walk along the pavement.That that duty was owed to blind persons if the operators foresaw or ought to have foreseen that blind person might walk along the pavement and was in no way different from the duty owed to persons with sight, though the carrying out of the duty might involve extra precautions in the case of blind pedestrians.That in discharging that duty towards blind persons operators were entitled to assume that such a person would take reasonable care to protect himself, for example, by using a stick in order to ascertain if there was anything in his way and by stoping if his stick touched any unfamiliar object.

Public Policy Considerations

Defence: no duty owed by Crown in war.

1. Plaintiff brought action against Commonwealth claiming damages in respect of a collision between the plaintiff's ship and the Commonwealth warship HMAS Adelaide. Established DOC: Driver & Passenger Policy consideration

1. The plaintiff and defendant stole a car and the defendant drove the car at full speed.

2. The plaintiff asked twice to be let out of the car but the defendant kept driving, laughing at the plaintiff 's concern.

3. Shortly after the second quest, an accident occurred due to the defendant's negligent driving, which caused the plaintiff 's severe injury. Law provides no protection to criminals offence Cf. Home Office, here identity of the criminals unknown

1. The plaintiff was the deceased's mother, who was killed by a terrifying murderer who had committed 13 murders and all the victims were similar in one nature, i.e., young and fairly young.

2. The murderer was arrested and convicted.

3. The plaintiff sued the Chief Constable of West Yorkshire, claiming on behalf of her daughter's estate damages on the ground of negligence, for inter alia, loss of expectation of life and pain and suffering.

1. The plaintiff suffered injury by escaped prisoners.

2. The prisoner escaped from the gaol run by the defendant.

3. The prisoner robbed news agent after the escape.

4. The first plaintiff was heavily pregnant at the time of robbery.

5. The first plaintiff alleged he suffered nervous shock as a consequence of the robbery, and the second plaintiff suffered injury due to premature birth arising from the first plaintiff 's nervous shock. Cf Home Office, here prisoner escaped and the conduct out of control Conflicting responsibilities; legal coherence and consistency Whether medical practitioners, social workers, hospital and Department of Community Welfare, liable to fathers in negligence for failing to take sufficient care in reaching conclusion that children sexually abused and reporting that conclusion to police and other authority?

1. Both appellants were accused of sexually abusing their children and suffered shock, distress and psychiatric harm, and consequential personal and financial loss.

2. Potential allegations to disrupt parent/child relationship directly against interest of child.

In particular situations or relationships, public policy considerations (the good of the general community) may negative the existence of a duty of care even though damage to a person in the position of the plaintiff was reasonably foreseeable and there was a close and direct connection between plaintiff and defendant. Shaw Savill & Albion Co v The Commonwealth (1940) Acts done by servants of Crown in the course of active naval or military operation against the enemy in time of war afford the ground of action of negligence against the Crown, the forces of Crown being under no duty of care to avoid causing damage to private individuals in such circumstances. Miller v Miller (2011) When the purpose of a statute is both to proscribe as a criminal offence the taking and use of a car without the consent of the owner and to deter and punish such conduct because of its association with dangerous or reckless driving, the law would lack coherence or be inconsistent or incongruent if recognised that one participant engaged in the proscribed conduct owed a duty of care to another participant jointly engaged in the same conduct.

* Because Danelle had withdrawn from, and was no longer participating in, the crime of illegally using the car when the accident happened, it could no long be said that Maurin owed her no duty of care. That he owed her no duty earlier in the journey is not to the point. When he ran off the road, he owed a passenger who was not then complicit in the crime which he was then committing a duty to take reasonable care. If a statute has been contravened, careful attention must be paid to the purposes of that statute. It will be by reference to the relevant statute, and identification of its purposes, that any incongruity, contrariety or lack of coherence denying the existence of a duty of care will be found. Hill v Chief Constable of West Yorkshire [1989]
The police service does not owe a duty of care to members of the public, including potential victims of a serial offender, when discharging its functions of investigating and suppressing crime. The case is distinguished from the Home Office v Dorset Yacht due to the following reasons:

* The offender in the present case was never in the custody of the police force.

* The plaintiff 's daughter was one of a vast number of the female general public who might be at risk from the offender's activities but was at no special distinctive risk in relation to them, unlike the owners of the yacht.

* The same rule must apply as regards to failure to recapture the criminal before he had time to resume his career.

* In the case of an escaped criminal his identity and description are known.

* In the instant case, the identity of the wanted criminal was at the material time unknown and it is not averred that any full or clear description of him was ever available. NSW v Godfrey (2004) No recognised category of duty of care owed by prison authority to prevent harm caused by escaped prisoner. Scope of prison authority's duty limited to course of escape not to events occurring after the escape. Sullivan v Moody; Thompson v Connon (2001) The formulation of a comprehensive test for determining the existence of a duty of care has proved elusive not least because "different classes of case give rise to different problems". Thus, in the present case, taking into account whether the existence of a duty of care would impair the "coherence of the law", State community welfare officers and medical practitioners carrying out statutory functions of investigating allegation of child sexual abuse owed no duty of care to the child's parents in respect of the accuracy of the investigation.

* The parents of the child, or at least the parent who was a potential suspect for a conclusion of sexual abuse to be reached, could hardly be regarded as a person whose interests they could be expected or required by law to consider.

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