TORTS LAWS1061 Rose VASSEL 1
DUTY OF CARE CATEGORIES Because negligence is an action on the case, the kind of harm is the most significant characteristic. Damage is the gist of the action and must be proved. Personal injury is one of the areas where the Civil Liability regime intervenes considerably, but more so in the stages of breach, causation and damages. The Acts in some places do also prevent a duty of care from arising or change the circumstances in which it arises. These include: mental harm, aspects of public liability of authorities, protection of volunteers and Good Samaritans. PHYSICAL HARM PHYSICAL HARM CAUSED BY AN ACT PHYSICAL HARM CAUSED BY OMISSION The rule for this is found in Donoghue v Stevenson [1932] AC 562 and is about reasonable foreseeability. This is the paradigm for the duty of care. Physical injury and property damage have the same requirements for the duty of care. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour... persons who are so closely Whether physical harm was caused by an act or omission may alter what is required to est. a duty of care. The important thing is defining the scope of the duty. This is bc. it is harder to prove the link bt. something that was not done, than it is for something that was done. Gummow J in RTA v Dederer (2007): whatever the scope, all duties of care are to be discharged by the exercise of reasonable care; it does not impose a duty to prevent potentially harmful conduct...duties of care are obligations of a particular scope, and that scope may be more or less expansive depending on the relationship in question... (1) Was it obvious? ; (2) Can it be avoided by the exercise of ordinary care? Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 Legal reasoning What was the scope of the duty of care required by the Conservation Commission to plaintiffs such a those in the position of Romeo? Did it extend to fencing off the area? Dixon J in Aiken v Kingborough Corporation: the public authority in control of... premises is under an obligation to take reasonable care to prevent injury to such a person through dangers arising from the state or condition of the premises which are not apparent and are not to be avoided by the exercise of ordinary care. Kirby J: On the scope of the duty - The entrant is only entitled to expect the measure of care appropriate to the nature of the land or premises entered and to the relationship which exists between the entrant and the occupier. The measure of care required will take into account the different ages, capacities, sobriety and advertance of the entrants. Nagle v Rottnest Island Authority (1993) 177 CLR 423 Hargrave v Goldman (1963) 110 CLR 40 2
Civil Liability Act s5f Meaning of obvious risk (1) For the purposes of this Division, an "obvious risk" to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. s5h No proactive duty to warn of obvious risk (1) A person ( the defendant ) does not owe a duty of care to another person ( the plaintiff ) to warn of an obvious risk to the plaintiff; (2) This section does not apply if: (a) the plaintiff has requested advice or information about the risk from the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the risk, or (c) the defendant is a professional and the risk is a risk of the death of or personal personal injury to the plaintiff from the provision of a professional service by the defendant. (3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection. NO DUTY TO RESCUE General Rule: Generally, a person will not be required to rescue another person unless they have created the risk or endangered the person by their own actions. There must be some additional reason why it is fair and reasonable that one person should be regarded as his brother s keeper and have legal obligations in that regard : Stovin v Wise [1996]. Stuarty v Kirkland-Veenstra: held that police did not owe a DOC to a person who was attempting to commit suicide where they came upon him with a hose attaching the exhaust to the inside of his car. He persuaded them he changed his mind but he later committed suicide. What if an attempt to rescue another, one made things worse? Common law possibility that liability may arise: Australia: no cases where D or nurse attending accident to give first aid were sued. Also few cases of volunteers being sued for injuries. UK: if attend in an emergency, Dr or nurse duty not to make situation worse. Concerns about these possibilities = CLA ss56-57 (2002 Good Samaritans provisions). Good Samaritans CLA s56 Who is a good samaritan For the purpose of this Part, a good samaritan is a person who, in good faith and without expectation of payment or other reward, comes to the assistance of a person who is apparently injured or at risk of being injured. s57 Protection of good samaritans (1) A good samaritan does not incur any personal civil liability in respect of any act or omission done or made by the good samaritan in an emergency when assisting a person who is apparently injured or at risk of being injured. (2) This section does not affect the vicarious liability of any other person for the acts or omissions of the good samaritan. 3
Protecting volunteers: CLA s61-66 s61 Protection of volunteers A volunteer does not incur any personal civil liability in respect of any act or omission done or made by the volunteer in good faith when doing community work: (a) organised by a community organisation, or (b) as an office holder of a community organisation. DUTIES TO THIRD PARTIES Controlling the conduct of others Smith v Leurs (1945) Dixon J said it is rare to find in the law a duty to control the conduct of third persons in the interest of the plaintiff and there has to be a special relationship to found a duty. The law may attribute the conduct of one person to another where there is a nondelegable duty - they create situations where the D is required to control the activities of others as part of the duty. Examples where the relationship between two parties may mean that one has a duty to take reasonable care to protect the other from criminal behaviour of third parties : Employer and employee (Modbury per Gleeson CJ at [26]); School and pupil (Modbury per Gleeson CJ at [26]); Bailor and bailee (Modbury per Gleeson CJ at [26]); Prison for prisoner on remand (L v Commonwealth (1976) prisoner sexually assaulted and injured Cth owed DOC to keep remand prisoners separate from other prisoners). Modbury Triangle Shopping Centre v Anzil (2000) 205 CLR 254 PRODUCT LIABILITY After Donoghue v Stevenson whether an item was a dangerous thing or not was irrelevant = determine whether there would be liability for a defective product based on the ordinary principles of negligence. When a person is injured by a product, they can seek to recover damages through: Contract for breach of warranty; Contract for breach of implied term as to fitness of the product; Bring an action under ACL. One possible alternative avenue is the Australian Consumer Law Pt 3-5 Liability of manufacturers of goods with safety defects or Chs 2 and 3 General Protections and Specific Protections [of consumers] (Note: this was formerly all covered under the Trade Practices Act). Defects covered by the tort of negligence can include defective manufacture, defective design, and even defective marketing i.e. failure to label properly. 4
Graham Barclay Oysters Pty Ltd v Ryan (2000) 177 ALR 18 (Full FCA) Lindgren J: On the lack of evidence of any previous outbreak of health problems + lack of knowledge of any problem on the part of Mr Barclay, the Barclay companies duty of care did not reasonably require them either to take the course that his Honour outlined or to suffer a closure of their business until somehow they could be completely assured that they were putting into the market a product that was free of defect. Kiefel J: A d Wyong Shire Council v Shirt test for this case Graham Barclay Oysters Pty Ltd v Ryan; Ryan v Great Lakes Council; State of New South Wales (2002) 211 CLR 540 HCA As per Wyong Shire Council v Shirt: First ask: whether a reasonable man in the D s position would have foreseen that his conduct involved a risk of injury to the P or to a class of persons including the P, if yes, then it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk and this requires a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the D may have. 5
PSYCHIATRIC HARM CONCEPT OF PSYCHIATRIC HARM Nervous shock is the term usually used but it means metal injury/psychiatric harm. P s have recovered compensation for psychiatric harm where the psychiatric harm: followed an injury to the self - where it is consequential (or parasitic ) mental harm; (Donoghue) developed after exposure to a situation of danger creating fear for the self (Victorian Railways Cmsr v Coultas), or within the zone of physical risk; (Coultas, Bourhill v Young) developed after exposure to a situation where the P was safe from physical harm but feared for relatives; (Hambrook v Stokes) followed a situation where a relative has been badly injured or killed and the P saw or heard the accident, or the aftermath of the accident; (Jaensch v Coffey) and where a rescuer of workmate developed psychiatric injury after witnessing a horrific scene. A person who has not been physically harmed may suffer from mental or psychiatric harm bc. of negligence. The DOC will arise bc. of a duty in respect of psychiatric harm. To bring an action in negligence for nervous shock of pure psychiatric injury, the P must show that it was reasonably foreseeable that a person in the P s position would suffer psychiatric harm if the D carried out the act contemplated. Harm must be a form that is compensable, must be recognised form of psychiatric injury - expert evidence. DUTY TO AVOID INFLICTING PSYCHIATRIC HARM Duty to avoid inflicting psychiatric harm has traditionally had particular rules to be satisfied bc. of concern it could be faked too easily and not as real as physical harm. special rules such as had to be frightened for oneself or to have been physically presence at an accident where a person was hurt. Most of these rule have since been ameliorated. Tame v New South Wales; Annetts v Australian Stations Pty Limited (2002) 211 CLR 317 Tame: sergeant at accident filled in form saying she was drunk when she wasn t. Annetts: Son working on cattle station and D promised parents that he would be supervised - 7wks later sent alone to caretake remote cattle station - died in desert. Gleeson CJ: whether it is reas. to require one person to have in contemplation injury of the kind suffered by another and to take reasonable care to guard against such injury. Gummow + Kirby JJ: Rejected normal fortitude test, sudden shock and immediate aftermath: Normal fortitude - not a precondition. Rather, test is one of reasonable foreseeability, liability is imposed for consequences which the D, judged by the standard of the reasonable person, ought to have foreseen. Not necessary that particular type of disorder be reasonably foreseeable, enough that psychiatric illness is RF. Sudden shock - Brennan J in Jaensch v Coffey, but not accepted by majority of the HCA. should not be accepted as pre-condition for recovery. Direct perception and immediate aftermath - also not accepted by HCA majority by may be considered, just not determinative. Distance in time and space from distressing phenomenon and means of communication or acquisition of knowledge concerning the phenomenon may be relevant to assessing R.F., causation and remoteness of damage in a common law action for negligence. there is no legal duty to break news gently. 6
DUTY TO AVOID INFLICTING PSYCHIATRIC HARM CONT D Over the years various limitations and controls have been suggested and then rejected: (1) Nervous shock not, in ordinary course of things, recognised as flowing from neg. Rejected HCA in Mount Isa Mines Ltd v Pusey (1970) + Jaensch v Coffey (1984). (2) P could only recover in respect of nervous shock where it is caused by fear of immediate physical injury to the P; still considered insufficiently proximate if the P s shock comes from realisation that physical injury might have happened to herself through a past incident: Wilks v Haines (1991). (3) Members of family of deceased may recover on basis that fear of immediate injury to member of family might be treated same way as fear of immediate injury to oneself. Untenable once courts held family members could recover even if only involved in aftermath (don t need to be physically present). (4) P may only recover damages for nervous shock resulting from what was observed w/ unaided senses by the P and not that resulting from what the P was told about the accident. (5) Where the news conveyed is negligently false, there is authority for holding the conveyor of it liable: Barnes v Commonwelath (1937) 37 SR (NSW) 311. Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 : Due to neg. of D, operated power plant, electric arc created which severely injured 2 employees. Other employee, P, assisted one man who died 9 days later. Ruling: Trial judge found D should have anticipated that other employees would assist and suffer nervous shock and perhaps injuries. Did not find that specific mental illness was foreseeable but that some psychiatric injury could have been foreseen. More than mere grief or sorrow.. Judgment for P upheld by QldSC (Full) and HCA. Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 : Man crushed to death by forklift whilst working for employer. 3 children not witnesses but claimed damages for psychiatric injury upon hearing of the incident. Ruling: All except Callinan J rejected sudden shock + direct perception as determining factors. Gleeson CJ stressed again that reasonable foreseeability be really reasonable. Requirement of recognisable psychiatric illness again reiterated. Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; HCA 15 The central inquiry remains whether, in all the circumstances, the risk of a P... sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far fetched or fanciful. MENTAL HARM AND THE CLA CIVIL LIABILITY ACT REGIMES Gifford v Strang Patrick Stevedoring Co (2003) 214 CLR 269 FACTS:Man crushed to death by forklift whilst working for employer. 3 children not witnesses but claimed damages for psychiatric injury upon hearing of the incident. RULING: R s argued that s4(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) required New CLAs are worded differently from old ones and there are significant differences bt. states. NSW has most stringent provisions whilst other states are more reflective of common law post Tames/Annetts. See differences bt. NSW CLA s30 and WA CLA s5s. 7
Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of New South Wales (2010) 241 CLR 60; [2010] HCA 22. 2 police officers called to scene of train derailment - spent several hours trying to lessen distress and suffering of survivors - 7 people died - SRA admitted negligence. s32 defines or controls what otherwise would be a duty of care arising at common law, its falls for consideration before the limitation upon entitlement to damages imposed by s30(2). Section 32, taking the form that it does, must be understood against the background provided by the common law of ngeligence in relation to psychiatric injury as stated by this Court in Tame v New South Wales the notion of shock, in the sense of a sudden and disturbing impression on the mind or feelings. Para 31 - the question of foreseeability...must be judged before the accident happened. MENTAL HARM AND FEMINIST CRITIQUE 8