LAW OF TORTS. Negligence – Duty of Care Clary Castrission [email protected] How will we cover negligence?. Duty of Care at common law Civil Liability Act and Duty of Care More CLA and Breach of Duty Damage and Particular Duty Areas More Particular Duty Areas. Negligence- Duty of Care.
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Duty of care
The application of the rule in D v S
Is the P reasonably foreseeable (as person or member of a class of people) likely to be affected by D’s actions?
McHugh, Gummow, Hayne and Heydon JJ (majority):
“The central inquiry remains whether, in all the circumstances, the risk of a plaintiff … sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far fetched or fanciful” 
Jaensch v. Coffey (1984)
Sullivan v Moody (2001) 207 CLR 562
Gleeson CJ, Gaudron, McHugh, Hayne & Callinan JJ:
 “…foreseeability of harm is not sufficient to give rise to a duty of care”
 “The formula is not ‘proximity’. Notwithstanding the centrality of that concept, for more than a century … it gives little practical guidance in determining whether a duty of care exists in cases that are not analogous to cases in which a duty has been established”
The quest for the unifying principle
- Anns 2-Stage Test
Incremental Approach: A compromise
- Brodie v Singleton Shire Council (2001) 206 CLR 512
Duty Areas under the CLA
Council of the City of Liverpool v Turano & Anor  NSWCA 270
S45 (3) In this section:
"carry out road work" means carry out any activity in connection with the construction, erection, installation, maintenance, inspection, repair, removal or replacement of a roadwork within the meaning of the Roads Act 1993 .
Roads Act 1993 (dictionary)
"road work" includes any kind of work, building or structure (such as a roadway, footway, bridge…) that is constructed, installed or relocated on or in the vicinity of a road for the purpose of facilitating the use of the road as a road…. and "carry out road work" includes carry out any activity in connection with the construction, erection, installation, maintenance, repair, removal or replacement of a road work.
In this Part:
"consequential mental harm" means mental harm that is a consequence of a personal injury of any other kind.
"mental harm" means impairment of a person’s mental condition.
"negligence" means failure to exercise reasonable care and skill.
"personal injury" includes:
"pure mental harm" means mental harm other than consequential mental harm.
(1) This section applies to the liability of a person ("the defendant”) for pure mental harm to a person ("the plaintiff") arising wholly or partly from mental or nervous shock in connection with another person ("the victim") being killed, injured or put in peril by the act or omission of the defendant.
(2) The plaintiff is not entitled to recover damages for pure mental harm unless:
32 Mental harm—duty of care
Codifies the common law test for foreseeability of risk of mental harm in Tame v NSW; Annetts v Australian Stations Pty Ltd  HCA 35
33 Liability for economic loss for consequential mental harm
A court cannot make an award of damages for economic loss for consequential mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness.
Duty Areas under the CLA
Did State Rail owe Arnold a Duty of Care?
a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care
Sale of Goods Act 1923 (NSW)
Pt 4 Performance of the Contract (ss.30 to 40)
Pt 6 Actions for Breach of the Contract (ss.51 to 56)
Part 4- NSW Consumer Safety and Information Requirements
- s.5O Civil Liability Act 2002 “Peer professional opinion” (ie. The UK “Bolam” test)
Bryan v Maloney (1995) ATR 81- 320
Voli v Inglewood Shire Council (1963) 110 CLR 74
14….Although there are exceptional cases, as Lord Hope of Craighead pointed out in Reeves v Commissioner of Police of the Metropolis, it is unusual for the common law to subject a person to a duty to take reasonable care to prevent another person injuring himself deliberately. … A duty to take care to protect an ordinary adult person who requests supply from risks associated with alcohol consumption is not easy to reconcile with a general rule that people are entitled to do as they please, even if it involves a risk of injury to themselves.
17. It is possible that there may be some circumstances in which a supplier of alcohol comes under a duty to take reasonable care to protect a particular person from the risk of physical injury resulting from self-induced intoxication. However, the appellant cannot succeed in this case unless there is a general duty upon a supplier of alcohol, at least in a commercial setting, to take such care. I do not accept that there is such a general duty.
65. The appellant's contention that her collision with the driver's vehicle was caused or contributed to by the Club's negligence in continuing to serve her alcohol, when the Club knew or should have known that she was intoxicated, was a contention that depended upon taking a number of steps, some (perhaps all) of which may be contested.
66. First, what exactly is meant by "serving" the appellant alcohol? Does it encompass, or is it limited to, selling alcohol which it is known that the appellant will consume? Does it extend to selling, to others, alcohol which it is suspected that the appellant will consume? How is the Club to control what other patrons may do with bottles of alcohol which the Club sells them? Given the uncertainties about how and from whom the appellant obtained alcohol during the second half of the day, these are questions that go directly to the formulation of the duty which is said to have been breached.
67. Secondly, the evidence of what the Club knew, or could reasonably be taken to have known, of what alcohol the appellant took during the day was very slight...
68. Unsurprisingly, there was no evidence which would have revealed that servants of the Club could have (let alone reasonably should have) been able to observe how much the appellant drank during the morning. That is, as we say, unsurprising when it is recalled how many patrons attended the Club. About 100 or 120 had attended breakfast. Some of those patrons stayed at, and no doubt others came to, the clubhouse and the ground to attend the several football games to be played that day. There was, therefore, a large and shifting population to observe. If it is said that the Club owed the appellant a duty to monitor and moderate the amount that she drank, it owed all its patrons such a duty...
69.Next, what level of intoxication is said to be relevant? Does it mean not lawfully able to drive a motor car? Some drivers may not drive a motor car if they have had any alcohol. Other drivers may be unfit to drive after very few glasses of alcohol. Does "intoxicated" mean, as the primary judge held, "loss of self-control or judgment which is more than of minor degree"? If that is so, many drinkers will arrive at that point after very little alcohol.
70.All of these questions would have to be answered in deciding what duty of care was owed. None can be answered in isolation. All would require consideration of the purpose for which it is said that the duty alleged is to be imposed.
131 I am also of the opinion that in general - there may be some exceptional cases - vendors of products containing alcohol will not be liable in tort for the consequences of the voluntary excessive consumption of those products by the persons to whom the former have sold them. The risk begins when the first drink is taken and progressively increases with each further one. Everyone knows at the outset that if the consumption continues, a stage will be reached at which judgment and capacity to care for oneself will be impaired, and even ultimately destroyed entirely for at least a period.
“What Shirt requires is a contextual and balanced assessment of the reasonable response to a foreseeable risk.”
IF NOT, there has been a breach of duty
“It is one thing to take risks when driving for some commercial purpose with no emergency, but quite another to take risks for life and limb.” (Lord Denning
“The actual events as they happened are not the circumstances to which consideration of foreseeability of risk of injury is applied; what is to be considered is foresight in more general terms of risk of injury.” per Bryson JA
1. Find out if risk or harm was foreseeable (question of law) under 5B(1)
2. THEN, balance up the cost of the precautions (under s5B(2)- as directed by 5B(1)(c)
Sections 5O & 5P
5O Standard of care for professionals
Duty of Care
There must be a causal link between D’s breach of duty and damage to P or P’s property
(Causation in fact)
Defences to Negligence
CIVIL LIABILITY ACT
- ss5R to T: Contributory Negligence
Earlier approaches in Common Law:
The complete defence (Williams v Commissioner for Road Transport (1933) 50 CLR 258)
- The last opportunity rule
The development of apportionment legislation
D must prove:
“A person in the position of Mr Berryman ought to have known, and in fact would have known (if he had not precluded himself from knowing by his own conduct) that Ms Joslyn's capacity must have been impaired, and probably grossly so, by the amount of alcohol she had drunk, not only during the immediately preceding evening, but also on the night before that. Furthermore Mr Berryman either knew, or ought to have known that the effects of two consecutive evenings of immoderate consumption would have had a compounding effect of tiredness and reduced attentiveness upon both of them... Factually the Court of Appeal erred in not finding that Mr Berryman's and Ms Joslyn's faculties, and accordingly their capacities to observe, react, assimilate, and deal with information and to drive a motor vehicle must have been seriously impaired by the consumption of alcohol”.
: compare Wynbergen –v- Hoyts Corp (1997) 149 ALR 25
- Gent-Diver v Neville  St R Qd 1
- Courts directed to reduce damages recoverable to what it thinks to be ‘just and equitable.’
Law Reform (Miscellaneous) Act 1965 (NSW) s9
(1) Where any person suffers damage as the result partly of his/her own fault and partly of the fault of any other persons,
(a) a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, and
(b) the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage
Pennington v Norris (1956) 96 CLR 10
Reasonableness must be judged in light of all the circumstances: Joslyn v Berryman
- Wynbergen -v- Hoyts Corporation P/L (1997)
- In determining the extent of a reduction in damages by reason of CN, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim is defeated.
At common law: D must prove
Ipp Committee Report (2002):at 8.23
Since the introduction of the defence of contributory negligence, the defence of voluntary assumption of risk has become more or less defunct. This is because any conduct that could amount to voluntary assumption of risk would also amount to contributory negligence .
Courts prefer the defence of contributory negligence because it enables them to apportion damages…
The P must have voluntarily accepted that there was a:
Rootes v Shelton undergrowth?(1967) 116 CLR 383
“To say that the P voluntarily assumed the risk of colliding with an obstruction in the water is one thing. To say that the D would carelessly fail to warn him of the presence of such an obstruction or would fail to exercise due care in steering the launch of which he had control is a very different proposition…” (at 395)
The defence is not constituted by knowledge of the danger and acquiescence, but by an agreement to run the risk and to waive your rights to compensation
Assumption of Risk (Part 1A, Division 4)
Recreational Activities (Part 1A, Division 5)
In this Division: "dangerous recreational activity" means a recreational activity that involves a significant risk of physical harm. "obvious risk" has the same meaning as it has in Division 4. "recreational activity" includes:
Recreational Activities (Part 1A, Division 5)
S5L- no liability for harm suffered materialisation of obvious risks of dangerous recreational activities
s5M- no duty of care for recreational activity where there is a risk warning
MR MENZIES QC:It is the Civil Liability Act 2002 and it Division 5 “Recreational Activities” - - -
Who has been acting illegally?
D must prove:
Jackson v Harrison (1978) 138 CLR 438
- Just because the P was engaged in criminal conduct at time of injury doesn’t necessarily prevent duty from being owed: Hackshaw v Shaw (1984) CLR 614
(a) on the balance of probabilities, the conduct constitutes a “serious offence”, and
(b) that conduct contributed materially to the risk of death, injury or damage.
Nuisance v Negligence
Nuisance v Trespass
“Inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to dainty modes and habits of living, but according to plain and sober and simple notions among the English people.”
- Knight Bruce VC in Walter v Selfe (1851)
“Sic utere tuo ut alienum non laedas” (“Use your own thing so as not to harm that of another”)
“A dweller in towns cannot expect to have as pure air, as free from smoke, smell, and noise as if he lived in the country, and distant from other dwellings, and yet an excess of smoke, smell, and noise may give a cause of action, but in each of such cases it becomes a question of degree, and the question is in each case whether it amounts to a nuisance which will give a right of action.”
- Lord Halsbury in Colls v Home & Colonial Stores 
- Munro v Southern Dairies , Hasley v Esso Petroleum 
1(b)  NSWLEC 128;Gray v State of New South Wales Matter No 2391/96 (31 July 1997)
1(b)  NSWLEC 128;Gray v State of New South Wales Matter No 2391/96 (31 July 1997)
"A useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society." (per Lord Wright in Sedleigh-Denfield v. O'Callaghan (1940) AC, at p 903 )
D’s conduct must be unreasonable.
“A sulphurous chimney in a residential area is not nuisance because it makes householders cough and splutter but because it prevents them taking their ease in their gardens. It is for this reason that the plaintiff in an action for nuisance must show some title to realty.”
- Newark, The Boundaries of Nuisance (1949)
“  NSWLEC 128; If a P, such as the daughter in Khorsandjian, is harassed by abusive telephone calls, the gravamen of the complaint lies in the harassment which is just as much an abuse, or indeed an invasion of her privacy, whether she is pestered in this way in her mother’s house, or even in her car with a mobile phone. In truth, what the CA appears to have been doing was to exploit the law of private nuisance in order to create by the back door a tort of harassment which was only partially effective in that it was artificially limited to harassment which takes place at her home. I myself do not think this is a satisfactory manner in which to develop the law, especially when the step taken was inconsistent with another decision in the CA in Malone”- LORD GOFF
What’s the difference??
“I cannot see that the appellants here can make out a case that they were denied free uninterrupted access to the roadway by the conduct of the respondents in imposing the parking restrictions in question. True, the parking restrictions were in adjajcent streets, but it cannot be said that access to and from the roadway was denied or seriously impaired… As the learned trial judge observed, “The shorter time limit did not materially alter the position.’ The fact that parking was limited to 1hr duration in portions of two streets near the restaurant could not in law constitute an actionable nuisance on he ground that potential customers were prevented from getting to the restaurant (continuing).”
It is difficult to see how the conduct in question of the respondents constituted a nuisance… all the available parking space could have been taken by residents and their visitors at any given point of time.”
- per Helman J
End respondents constituted a nuisance… all the available parking space could have been taken by residents and their visitors at any given point of time.