3003 Negligence Law Final Exam Notes Griffith University

Transcription

1 3003 Negligence Law Final Exam Notes Griffith University

2 Week 4: Elements of Negligence: 1. Duty of Care 2. Breach of Duty 3. Causation 4. Defences/Damages Legislation: Civil Liability Act 2003 (Qld), commenced 2 December This means it has some retrospective application. (Marks for mentioning this). Duty of Care and their Scope /Tests: Section 4: Remember, subject to section 5, this Act applies to any civil claim for damages for harm. (Marks for mentioning this). - Damage for harm means, according to the dictionary, monetary compensation, personal injury, property damage and economic loss. Section 5: What isn t covered: (a) work related injuries [dealt with WCRA Act 2003];; (b) dustrelated injuries; (c) Smoking/tobacco injury. Duty of Care is generally left to the common law. Historically there is no general test for whether a duty arose (Heaven v Pender) and the modern duty traces to the neighbour principle (Donoghue v Stevenson). Existing Categories of Duty: - Doctor/patient - School/child - Employer/employee - Motorist/motorist - Situations involving direct physical injury What is the test now to determine whether Duty of Care exists: Reasonable Foreseeability: Could the defendant have reasonable foreseen that their acts or omissions could cause damage of the general kind suffered by the plaintiff or class of which the plaintiff is a member. (Generally taken from Donoghue v Stevenson). Chapman v Hearse (1961) 106 CLR 112: - Person was driving negligently and Dr Cherry stopped to assist and was killed. - Was it foreseeable that if someone were to stop and come to my aid as a result of driving negligently? As a broad test, yes. Sydney Water Corporation v Turano: - Defendant did water works 20 years before accident. One of the effects was that the drainage course was altered, rotting away at the routes of a nearby tree which fell on the plaintiff. Plaintiff alleged duty of care. Reasonable foreseeability on its own is too broad. (This is why the HCA now uses salient features as well, so see below).

3 OR Control Tests: This involved proximity which is no longer applicable: used to draw a circle to distinguish the core actions from the penumbra (so what doesn t fall within the duty). No longer applies, but salient features does which resulted from this initial approach. Salient features test: After recognising the category, you must explore certainty, coherency and vulnerability. These are listed below including other general categories. This test is still used and is the contemporary test: - Nature of harm; - Control; - Vulnerability (could the Plaintiff have done anything to protect themself).; - Reliance of plaintiff on defendant; - assumption of responsibility; - Physical or relational closeness; - Nature of Risk or Danger; - Knowledge by defendant of plaintiff or class; - Indeterminacy (the flood gates argument); - Autonomy and freedom; - Coherence with other laws; - etc. So you want to go through these and point out the relevant ones. This is based on the facts of the hypothetical. OR The Role of Policy: Sullivan v Moody generally held you could not consider the dichotomy of legal vs public policy. This has generally been rejected, but the court does it irrespective, as Kirby J pointed out. Scope of the Duty of Care: The High Court has a tendency to narrow the scope. Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 215 CLR 254: - Plaintiff finished work and was mugged in car park after work and sued owner. The centre was held to ow the Plaintiff a duty that the physical state of the premises would be reasonably safe and free from risk; did not owe a duty regarding the criminal behaviour of trespassers on the premises. This was outside the scope of the duty. Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11: - Can t define the scope of a duty of care too narrowly or too broadly. So the current approach taken by the High Court is 1. Reasonable Foreseeability and; 2. Salient Features (Including policy issues).

4 Hard Cases: Deal with situations where the salient features have come into question. Stuart v Kirkland-Veenstra (2009) 237 CLR 215: Personal Autonomy. Man was pulled over after attempting to commit suicide. He was allowed to go home and committed suicide. The Mental Health Act 1986 (Vic, s 10(1) provides that a police office may apprehend a person who appears to be mentally ill if the officer has reasonable grounds for believing that the person has recently attempted suicide or is likely by act of neglect to attempt suicide. The Wife alleged the police owed her and her husband a duty to take reasonable care to protect them from reasonably foreseeable risks of harm. It was held no duty was owed (salient feature: personal autonomy). Someone who appears is going to commit suicide or who does commit suicide is not always necessarily mentally ill. So the HCA had to grapple with whether a duty of care was evident in the circumstances. Because the police officers did not believe at the time that the husband was mentally ill, they could not intervene under the power of the statute due to simply not having that reasonable belief. CAL NO 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390: Vulnerability. Man agreed to give keys to the patron who holds them so the man does not drink drive. Man argues for keys to be returned after further drinking. Patron gives keys back and man is subsequently killed in a crash. Main argument of the wife and MAIB: Because of the pre-existing arrangements that existed for the licensee to store and lock up the motorcycle at the Hotel, the licensee had been in position to prevent Mr Scott from riding and had been under a duty to do so in the circumstances. The High Court held no duty was owed. Vulnerability: nature of the arrangement (subbailment); autonomy; coherency in the law; exceptional circumstances. The court discussed the general duty of care. The reason is that outside exceptional cases, which this case is not, persons in the position of the proprietor and the licensee while bound by important statutory duties in relation to the service of alcohol and the conduct of the premises in which it is served, owe no general duty of care at common law to customers which requires them to monitor and minimise the service of alcohol or to protect customers from consequences of the alcohol they choose to consume.

5 Miller v Miller [2011] HCA 9: Coherency. Girls were drinking, no funds to get home so they stole a car and drove home. Came across distant cousin who offered to drive with 9 passengers and the 16 year old girl said she wanted to exit the vehicle. The cousin refused and a major accident occurred. The duty of care was not inconsistent with the criminal law because she had asked to leave. The 16 year old girl was also attributed 50% in contributory negligence. Incoherency with criminal law may mean no duty of care. Other Major Categories that are considered Duty of Care: Pure Economic Loss: - Pure economic loss is financial loss not consequent upon any injury or damage to the plaintiff s property or person. Hedley Byrne & Co Ltd v Heller & partners Ltd [1964 AC 465: - Plaintiffs were advertising agency and did ads for the client. To ensure they weren t left in need of payment, they went to the bank to confirm the client s credit rating. The client is subsequently bad for the money and fails to pay. Plaintiffs go into liquidation. Held that yes, in certain cases where there has been reliance, in particular by distinct individuals, upon a particular statement a duty of care may arise. But in this case it was not because of a disclaimer given by the bank. Caltex Oil (Australia) Pty Ltdv The Dredge Willemstad (1976) 136 CLR 529: - Plaintiff sued defendant for severing of pipe line which supplied oil/gas. Plaintiff was successful because it was held in certain circumstances and in this case it had to do with the particular knowledge by the plaintiff. So the one pipeline was linked to that particular plaintiff. Leading Case: Perre v Apand Pty Ltd (1999) 198 CLR 180: - Plaintiffs grew potatoes and exported those to WA. The defendants supplied a new kind of potato (seed potatoes). These potatoes were infected. These never spread to the plaintiff s potatoes (no physical damage). But it was illegal to export to WA any potatoes that were produced or packed within a radius of wilt for 5 years. Did the defendant owe a duty of cre to the plaintiffs in relation to pure economic loss. Factors relevant to finding a duty of care: - It would not lead to indeterminate liability i.e. indeterminate number, indeterminate class. So you could ascertain the class (like knowing the exact pipeline). - Knowledge by the defendant (or should reasonably have known) of the risk of harm to the plaintiff individually, or as a member of an ascertained class. - Vulnerability of the plaintiff/control by the defendant. (No couldn t control the risk or