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  1. LAW OF TORTS LECTURE 4 Negligence – Duty of Care Clary Castrission

  2. How will we cover negligence? • Today: 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

  3. Roadmap for today • Snails • Overview of negligence • Arriving at a Duty of Care • Categories • The harder ones: • Proximity and Reasonable Foreseeability v Incrementalism • Some interesting applications • Unborn children and the wrongful life cases • Legislative reform


  5. NEGLIGENT TRESPASS • Intentional or negligentact of D which directly causes an injury to the P or his /her propertywithout lawful justification • The Elements of Trespass: • fault: intentional or negligent act • injury must be direct • injury may be to the P or to his/her property • No lawful justification

  6. NEGLIGENT TRESPASS • While trespass is always a direct tort, it is not necessarily an intentional act in every instance. It may be committed negligently • Negligent trespass is an action in trespass not in negligence: • Where the facts of a case permit, it is possible to frame an action in both trespass and negligence on the same facts • Williams v. Molotin (1957) 97 CLR. 465.

  7. What is Negligence? • It is the neglect of a legal duty • Negligence v carelessness • “The law takes no cognisance of negligence in the abstract. It concerns itself with carelessness only where there is a duty to take care and where failure in that duty has caused damage.” (Lord MacMillan in D v S) • Tame v NSW (2002) 211 CLR 317

  8. Negligence: The Elements Duty of care Negligence Breach Damage

  9. Negligence: The Early Cases • Heaven v. Pender (1883) • The dicta of Brett MR: • whenever one person is by circumstances placed in such a position with regard to another, that every one of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger or injury to the person or property of the other (person) a duty arises to use ordinary care and skill to avoid such danger.

  10. Donoghue v. Stevenson [1932] AC 562 • Facts • Understanding the relationships

  11. Donoghue v Stevenson (cont) • Dicta of Lord Atkin • The rule that you are to love your neighbour becomes in law, you must not injure your neighbour, and the lawyer’s question, who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be persons who are closely and directly affected by my act that I ought reasonably to have them in mind to the acts or omissions which are called into question (at 599)

  12. The Manufacturer’s Duty • Grant v Australian Knitting Mills (1936) The application of the rule in D v S • 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 • Baar v Snowy Mountains Hydro-Electric Authority (1970) 92 WN (NSW) 472

  13. What did Lord Atkin mean? • “What Lord Atkin did was use his general conception to open up a category of cases giving rise to a special duty… [The process] may be described either as the widening of an old category or as the creation of a new and similar one. The general conception can be used to produce other categories in the same way.” • Lord Devlin in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465(at 524)

  14. Established Categories • Type of Harm • Type of Defendant • Type of Plaintiff • Manufacturer to consumer • Makers/repairers to users of chattels • Teachers to pupils • Occupiers of land to visitors • Skilled professionals to their clients • Highway workers to highway users

  15. Checking In • Snails • Overview of negligence • Arriving at a Duty of Care • Categories _________ • The harder ones: • Proximity and Reasonable Foreseeability v Incrementalism • Some interesting applications • Unborn children and the wrongful life cases • Legislative reform

  16. Duty of Care in General • Where there is physical loss or injury (or an established category), duty is relatively easy to identify. • Rylands v Fletcher (1868) LR 3 HL 330 • Where nature of harm is more difficult to identify or quantify, it gets tougher.

  17. WHAT HAPPENS WHEN THE DUTY DOES NOT FIT AN ALREADY EXISTING CATEGORY? • What is needed is “a conceptual framework that will promote predictability and continuity and at the same time facilitate change when it is needed.” (McHugh J in Perre v Apand (1999)) • Principle v Category • Principle: Proximity and Reasonable Foreseeability • Category: Incrementalism • There is still “much disorder and confusion”- Kirby J Perre v Apand

  18. What is Reasonable Foreseeability? • Question of identity of the plaintiff: • Question of law Is the P reasonably foreseeable (as person or member of a class of people) likely to be affected by D’s actions?

  19. Reasonable Foreseeability: Case Law • Some illustrations • Palsgrafv. Long Island R.R. Co. (1928 • Chapman v. Hearse (1961)

  20. Reasonable Foreseeability: Established Category Of Duty of Care • Wyong Shire Council v Shirt (1980) 146 CLR 40 per Brennan J: • risk must be “real” in the sense that a reasonable person would not “brush it aside as far-fetched or fanciful.” • Koehler -v- Cerebos (Australia) Limited [2005] HCA 15 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” [33]

  21. Needs Something Else… • Sullivan v Moody (2001) 207 CLR 562 • “The fact that it is foreseeable… that a careless act on the part of one person may cause harm to another does not mean the first is subject to a legal liability…”

  22. Proximity Jaensch v. Coffey (1984) • (Proximity involves) notions of nearness or closeness and embraces physical proximity (in the sense of space and time)…, circumstantial proximity such as an overriding relationship of employer and employee or of a professional man and his client, and causal proximity in the sense of the closeness or directness of the relationship between the particular act or cause of action and the injury sustained.” (per Deane at 584-585)

  23. The High Point of Proximity • Bryan v Maloney (1995) 182 CLR 609 • “A duty of care arises under the common law of this country only where there exists a relationship of proximity between the parties with respect to both the relevant class of act or omission and the relevant damage.” (at 543)

  24. The Main Features of Proximity PROXIMITY Degree of proximity Evaluation Physical Evaluation of legal and policy considerations of what is fair and reasonable Circumstantial Causal

  25. Proximity Criticised • The High Court has expressed reservations about the usefulness of the notion of proximity in recent times • Sutherland SC v Heyman (1985) • Hill v Van Erp(1997) • Perrev Apand (1999) • Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000)

  26. Proximity - Criticised Sullivan v Moody (2001) 207 CLR 562 • Facts • Judgment Gleeson CJ, Gaudron, McHugh, Hayne & Callinan JJ: [573] “…foreseeability of harm is not sufficient to give rise to a duty of care” [578] “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”

  27. Incrementalism • “It is preferable, in my view, that the law should develop novel categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable considerations which ought to negative, or limit the scope of the duty or the class of persons to whom it is owed.” • Brennan J in Sutherland Shire Council v Heyman (1985) HCA

  28. The Anns2-Stage Test: The UK Way • Anns v Merton London Borough Council [1978] AC 728 • 2-Stage Test (Wilberforce): • It requires first a ‘sufficient relationship of proximity based upon foreseeability’; • and secondly considerations of reasons why there should not be a duty of care.

  29. Australia Elaborates on Anns • Jaensch v. Coffey (1984) per Deane J. p587-8 • A duty situation could arise from the following combination of factors • A reasonable foreseeability of real risk of injury to P either as an identifiable individual or a member of a class of persons, and • The existence of proximity between the parties with respect to the act or omission • Absence of any rule that precludes such a duty

  30. The 3-Stage Caparo Test • Caparo Industries Plc v Dickman[1990] 2 AC 605 • Was damage to P reasonably foreseeable • Was relationship between P and D sufficiently proximate, and if so • Would it be fair, just and reasonable to apply DOC

  31. Perre v Apand (1999) 198 CLR 180 • Facts • High Court gets the chance to explore the current state of duty of Care

  32. Gaudron in Perre • Prox is too ambiguous: “First, proximity as the second stage in a three stage test has no more content than it did when it was used as the unifying criterion…” [Gaudron at 10] • Too powerful: would prevent incrementalism. Concern that Caparo would be used in any case, even where there is an established duty category • Too troublesome: “Fair, just and reasonable” is troublesome:- “They are of little use, if they are of any use at all, to the practitioners and trial judges who must apply the law to concrete facts arising from real life activities.” [Gaudron at 12]

  33. Gaudron Concluding • Need for predictability • “When legal practitioners are unable to predict the outcome of cases with a high degree of probability, the choice for litigants is to abandon or compromise their claims or defences or to expose themselves to the great expense and unpredictable risks of litigation.” [Gaudron at 20] • Incrementalism is best compromise • “Until a unifying principle again emerges, however, the best solution is to proceed incrementally from the established cases and principles.” [Gaudron at 25]

  34. Kirby J • Look at other jurisdictions • Reasonable foreseeability falls short, so proximity has a role to play: • “If on the other hand, proximity were to be confined to its original historical purpose as a measure of “nearness and closeness” between the parties in dispute, it cold yet provide a meaningful gateway, in addition to reasonable foreseeability of harm, to afford the starting point for the allocation of a legal duty of care or exemption from its burden. Then it would remain necessary to weigh candidly the competing policy considerations relevant to the imposition of a duty of care.” [Kirby at 24]

  35. Kirby J applying Caparo • Foreseeability • Proximity • Policy

  36. Wrapping up the approaches The quest for the unifying principle - Anns 2-Stage Test - Caparo Incremental Approach: A compromise - Brodie v Singleton Shire Council (2001) 206 CLR 512

  37. Checking In • Snails • Overview of negligence • Arriving at a Duty of Care • Categories • The harder ones: • Proximity and Reasonable Foreseeability v Incrementalism ---------------------- • Some interesting applications • Unborn children and the wrongful life cases • Legislative reform

  38. Interesting Duty Application 1 • The unborn child: • There can be no justification for distinguishing between the rights… of a newly born infant returning home with his /her mother from hospital in a bassinet hidden from view on the back of a motor car being driven by his proud father and of a child en ventresa mere whose mother is being driven by her anxious husband to the hospital on way to the labour ward to deliver such a child ( Per Gillard J in Watt v Rama) • Lynch v Lynch (1991) • Watt v Rama [1972] VR 353

  39. Unborn Child • Wrongful life cases • Harriton v Stephens [2006] HCA 15 (9 May 2006) Appeal dismissed (7 to 1 majority) • Crennan J (Gleeson CJ, Gummow & Heydon JJ agreeing), Hayne J and Callinan J in separate judgments dismissed the Appeal • Kirby J dissented

  40. Harriton v Stephens • Crennan J (Gleeson CJ, Gummow & Heydon JJ agreeing) • [244] “It was not Dr P R Stephens's fault that Alexia Harriton was injured by the rubella infection of her mother. Once she had been affected by the rubella infection of her mother it was not possible for her to enjoy a life free from disability. ... Dr P R Stephens would have discharged his duty by diagnosing the rubella and advising Mrs Harriton about her circumstances, enabling her to decide whether to terminate her pregnancy; he could not require or compel Mrs Harriton to have an abortion. ”

  41. Harriton v Stephens • Crennan J (Gleeson CJ, Gummow & Heydon JJ agreeing) • [249] “It is not to be doubted that a doctor has a duty to advise a mother of problems arising in her pregnancy, and that a doctor has a duty of care to a foetus which may be mediated through the mother[403]. However, it must be mentioned that those duties are not determinative of the specific question here, namely whether the particular damage claimed in this case by the child engages a duty of care.To superimpose a further duty of care on a doctor to a foetus (when born) to advise the mother so that she can terminate a pregnancy in the interest of the foetus in not being born, which may or may not be compatible with the same doctor's duty of care to the mother in respect of her interests, has the capacity to introduce conflict, even incoherence, into the body of relevant legal principle ”

  42. DUTY TO RESCUE • There are two separate issues in rescue: • The ‘duty’ to rescue • The duty of care owed to the rescuer • There is no positive legal obligation in the common law to rescue • The law does not ‘cast a duty upon a man to go to the aid of another who is in peril or distress, not caused by him”: Hargrave v Goldman (`963) • There may however exist a duty to rescue in master servant relationships or boat owner and guest relationships for instance • Horsley v Maclaren(The Ogopogo) (1971) 22 DLR • One is only required to use reasonable care and skill in the rescue

  43. THE DUTY OWED TO RESCUERS • The rescuer is generally protected : torts recognizes the existence of a duty of care owed to the rescuer. • The issue of volenti-non fit injuria: This principle does not seem to apply in modern tort law to rescue situations. • ‘The cry of danger is the summons to relief. The law does not ignore these reactions of the mind.. It recognizes them as normal… and places their effects within the range of of the natural and the probable [and for that matter the foreseeable] per Cardozo J in Wagner v International Railway Co. (1921) • Chapman v Hearse • Videan v British Transport Commission (1963) (rescue attempt to get a child trespassing on railway line) • Rescuers may recover for both physical injuries and nervous shock • Mount Isa Mines v Pusey (1970) • The US fire-fighter’s Rule does not apply in Australia and the UK • Ogwo v Taylor (1988) AC 431

  44. IMPACT OF THE CIVIL LIABILITY ACT ON THE DUTY OF CARE • The Civil Liability Act 2002 together with the Civil Liability Amendment (Personal Responsibility) Act 2002 govern the law of negligence in NSW. • The Civil Liability Act 2002 was enacted 28th May 2002 and received assent on 18 June 2002 • Rationale behind the legislation: • to limit the quantum of damages for personal injury and death in public liability instances; resultantly lowering insurance premiums. • to discourage ‘over litigation’, by the imposition of restrictions and obligations and responsibilities upon plaintiffs and counsel

  45. Civil Liability Act 2002: Duty of Care • Statute overrides the common law and that any negligence claim commenced since 20 March 2002 will be governed by the Civil Liability Act 2002. • Next lecture, we will consider the application of: • general duty of care provisions of s.5B; • situations of obvious/inherent risks under ss.5F to I; and • situations of dangerous recreational activities under ss.5J to N.

  46. The Rationale for Reform • [I]t's my view that this country is tying itself up in tape because of over litigation, a long-term trend to see us litigate for everything, to try to settle every problem in our getting a big cash payment from the courts....a country as small as ours can't afford to have the American-style culture of litigation". (Bob Carr)

  47. The Rationale for Reform • ‘We need to restore personal responsibility and diminish the culture of blame.That means a fundamental re-think of the law of negligence, a complex task of legislative drafting.There is no precedent for what we are doing, either in health care or motor accident law, or in the legislation of other States and Territories.We are changing a body of law that has taken the courts 70 years to develop’(Bob Carr)

  48. The Approach to Reform: Government’s View • We propose to change the law to exclude claims that should never be brought and provide defences to ensure that people who have done the right thing are not made to pay just because they have access to insurance (Bob Carr) • We want to protect good samaritans who help in emergencies. As a community, we should be reluctant to expose people who help others to the risk of being judged after the event to have not helped well enough (Bob Carr)

  49. Wrap-Up • Snails • Overview of negligence • Arriving at a Duty of Care • Categories • The harder ones: • Proximity and Reasonable Foreseeability v Incrementalism • Some interesting applications • Unborn children and the wrongful life cases • Legislative reform

  50. TORTS LECTURE 8 PARTICULAR DUTY AREAS Clary Castrission (p) 02 9221 4030