NEGLIGENCE Wrongs Act 1958 (Vic) s43 Negligence means failure to exercise reasonable care. Negligence is; - The failure to do something that a reasonable person would do (omission), or - Doing something which a prudent and reasonable person would not do (action) (NB: careless acts do not always amount to negligence) ELEMENTS IN THE TORT OF NEGLIGENCE: 1. Is there a DOC in the situation? 2. Has there been a BREACH of this DOC 3. Has the breached CAUSED HARM (CAUSATION) which is recognised by the law of tort, and is this harm REASONABLY FORSEEABLE and not too REMOTE (SCOPE OF LIABILITY) 4. Does a DEFENSE apply? Once the above has been established, we can determine; 5. DAMAGES apply. - Use COMMON LAW concept of reasonable person to determine the appropriate standard of care and whether the D is in breach. - Use STATUTORY FRAMEWORK to advise on whether there has been a breach of the appropriate standard of care in a hypothetical problem. At the outset, consider the following questions; What is the NATURE OF HARM alleged? Physical, mental, pure economic loss? What is the CONDUCT that is alleged to be negligent? Positive action or omission? Does it involve a duty to control a THIRD PARTY? Generally an omission. Does this involve PUBLIC AUTHORITIES? Contentions if an omission. Or a third party? Is this about joint illegality? Advocates immunity?
ELEMENT 1. DUTY OF CARE Heaven v Pender (1833) QBD Duty of care- SHIP PAINTER D owned a dock and had a contract with a ship owner. D erected scaffolding outside the ship so it could be painted. The ship owner had a contract with a ship painting company, who employed the PL (painting contractor) to paint the ship. A scaffolding rope broke, and PL fell and was injured. Held: There was no contract between the PL and the D, BUT The PL was an invitee on the D s dock, and the D derived a benefit fro him being there, therefore a special relationship existed between him and the D, with a duty to exercise some care for safety. DOC existed and was owed by the doc owner. Dissenting; Brett MR Looked for a wider scope of liability Whenever one person is placed in 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 he would cause danger of injury to the person or property of another, a duty arises to use ordinary care and skill to avoid such danger. This was later adopted in Donoghue v Stevenson. Donoghue v Stevenson - SNAIL IN BOTTLE Found snail in a bottle of ginger beer, served to her at a café, but purchased by She got sick and sued the manufacture of ginger beer, although no contract A contract existed between her friend and the café, and the café and the D claimed that the manufacture breached a DOC owed to her as consumer, and ISSUE: in the absence of contractual relations, would the English law recognise a GENERAL duty to avoid causing harm to others by carelessness? Majority Held; DOC owed GENERAL duty to avoid causing harm to others by carelessness Look at PROXIMITY between PL and D (closeness of relationship) A reasonable manufacture would be aware of a class of persons (consumer) who would be affected by their careless conduct. Appeals to public sentiment and morality. 3:2 majority - not necessary there be a direct contractual connection This ruling was incorporated into Australian law in Australian Knitting Mills case. Lord Atkin 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? 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. DOC step 1- neighbourhood principle. Australian Knitting Mills It is not necessary that there be a direct contractual relationship (to establish DOC)
ESTABLISHING A DOC There are three situations; 1. Law has established DOC (e.g. doctor patient, drivers on the road, manufacture and consumer) 2. Law has established NO DOC (e.g. barrister, police, child protection agencies, omissions) 3. NOVEL SCENARIOS - No settled law on whether a DOC does/doesn t exist. - Was it REASONABLY FORSEEABLE that the PL could be injured by D s action/omission (introduced by Donoghue v Stevenson) - Are there sufficient SALIENT FEATURES of a duty relationship to find a duty exists here? (More recent- introduced in Sullivan v Moody) S.45 of the Wrongs Act; make sure another act doesn t exclude the type of case you re dealing with. [Fire, police, SES, Transport, workplace, juries, teaching, tobacco-related injury are regulated by their own legislation. Can t sue in negligence] NOVEL SCENARIOS - UNESTABLISHED DOC Reasonable foreseeability - is the general harm to the class of persons reasonable foreseeable? - To establish DOC, it must be demonstrated that; - A reasonable person in D s position would have seen the risk of harm to the PL, or class of person to whom the PL belongs Sullivan v Moody. What kind of harm? General kind - Only need to foresee that careless conduct OF ANY KIND will result in SOME KIND of harm to the PL (San Sebastian) - Precise sequence of events need not be foreseeable (Chapman) How probable must harm be? Not unlikely - Harm NOT UNLIKELY to occur Caterson - A foreseeable risk is one that is not far-fetched or fanciful Wyong Does the exact harm need to be foreseeable? - No - Foreseeability in a GENERAL WAY is sufficient Chapman - Is there a reasonably FORESEEABLE CLASS OF PEOPLE that could suffer from some kind of harm from the D s carelessness? (Chapman) - Necessary to determine whether a consequence of the same general kind was reasonably foreseeable as a consequence not unlikely to follow - It must be reasonably foreseeable that harm [of the same general kind] was not unlikely to occur to [GENERAL CLASS person of which the PL was one] CHAPMAN v HEARSE - REASONABLE FORSEEABILITY sequence of events Facts; Chapman caused a car crash, and he became injured (unconscious) on the side of the road. Dr Cherry stopped to help and was subsequently hit by another car and killed. The car was being driven negligently by Hearse. Hears says Chapman is partially responsible for Cherry s death b/c of his negligent driving which caused the initial accident. Chapman claimed that he could not reasonably foresee the sequence of events that led to Cherry s death, and therefore no DOC. Issue; did chapman owe his rescuer a DOC? (I.e. scope of reasonable foreseeability) Held; RF at DUTY stage; - Was it RF that the injuries to a PARTICULAR CLASS OF PERSON would have occurred? - Foreseeability in a GENERAL WAY is sufficient (not specific) - Where a PL is injured as the result of a sequence of events, it is sufficient to ask whether a consequence of the same general kind was reasonably foreseeable as one not unlikely to follow a collision between two vehicles on a dark wet night on a busy highway. - It is not necessary for the PL to show that the precise manner was reasonably foreseeable; it is sufficient if it appears that injury to a class of persons of might be a RF consequence.
- APPLICATION - Is it reasonably foreseeable that reckless driving would cause PERSONAL INJURY (that is the class of injury) to other ROAD USERS (class of persons) Caterson v Commissioner for Railways When is something RF? When it is NOT UNLIKELY to occur Issue: Was the railway negligent in not foreseeing that a passenger may jump from a moving train if it left before they could disembark? Held, NOT UNLIKELY to occur REASONABLE FORSEEABILITY of damage to PL; Need to consider: 1. What class of persons might possibly be put at some risk of injury in some way if the defendant failed in some way to take reasonable care? 2. Is the plaintiff one of those people? 3. When is something reasonably foreseeable 4. What is the general class of injury? (i.e. personal injury, property damage, mental harm or pure economic loss) Introduction of SALIENT FEATURES step in determining a DOC - Reasonably foreseeable step (first step) is very easy to satisfy - Therefore it is necessary, but not sufficient to establish duty of care where there is no settled law (precedent) - That is why there is a second step, the SALIENT FEATURES STEP. - DOC depends on finding a sufficient number of factors (salient features) indicating why it is proper to impose DOC in a particular case. - NB: In AUS, personal injury or property damage case is guaranteed DOC. (presumption you will get it) - HC clarified step 2 in Sullivan v Moody A D will only be liable in circumstances where the law imposes a duty of care. - Second step: analysis of salient features Sullivan v Moody - HISTORIC ORIGIN OF SALIENT FEATURES APPROACH D will only be liable in circumstance where the law imposes a DOC. Reasonable foreseeability is relevant but not sufficient, courts must look at other relevant factors, which later came to be known as salient features approach. Exam answer- Sullivan's case said the law wants to balance individuals rights - Sexual assault investigation was done negligently and father was falsely accused of sexually assaulting his child, claimed it caused him great harm. - Did the CPS agent have a DOC to the person he was investigating? - Here, the HCA had to try to balance everyone's rights they didn t want to restrict people too much or constrain freedom, and therefore, although the harm was reasonably foreseeable, the courts established a second step, and a DOC was not found. Step 1: Reasonable foreseeability: - It was reasonably foreseeable that a doctor/social worker who was not careful in running an investigation would cause harm to the person they were investigating. Step 2: Salient features focused on in Sullivan v Moody: - Conflict of law: is there a better-suited area of law under which the P s action should be brought? (E.g. defamation) - Coherency of law/inconsistent or conflicting duties: the finding of a duty in this instance would conflict with an already existing duty or legal obligation? (Yes, it would conflict with CPS STATUTORY duty to investigate. Quote below.) - Indeterminate liability: exposure D to indeterminate liability (they would owe a duty to every suspect of child abuse) - Floodgates: would finding a duty of care here risk flooding the courts with claims of liability?
Held, no DOC because; - The law would subject citizens to an intolerable burden of potential liability, and constrain their freedom of action in a gross manner. - Secondly, the tort of negligence would weaken many other principles of law, and statutory provisions, which strike a balance of rights and obligations, duties and freedoms. - A D will only be liable, in negligence, for failure to take reasonable care to prevent a certain kind of foreseeable harm to a plaintiff, in circumstances where the law imposes a duty to take such care - Just because the D owes a DOC to a third party (i.e. the child), or is subject to statutory obligations which constrain them, does not of itself rule out the possibility that a duty of care is owed to a plaintiff. People may be subject to a number of duties. But if a suggested DOC would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. RE: coherency of law. CAL no 14 v Motor Accidents Insurance Board (2005) SALIENT FEATURES APPROACH - Proprietor or licensee of a hotel owes no DOC to protect customers from the consequences of the alcohol they choose to consume. Mr Scott was drinking at a pub, and locked his motorbike in the pub storeroom, and handed his keys over to the licensee (knowing a booze bus was nearby) Mrs Scott was going to collect her husband from the hotel later in the evening 8:15pm, the Licensee told Mr Scott that he had consumed enough alcohol and asked for Mrs Scott s telephone number. Mr Scott refused, using confrontational and offensive language. Mr Scott then asked the Licensee for the motorcycle and its keys, after stating three times that he was Ok to drive. Witnesses at the hotel said that they did not notice any signs of intoxication. In the course of a 7KM journey, Mr Scott was killed 700 metres from home Alcohol was a cause of the accident MAIB was suing the pub to recover sums it had paid to Mrs Scott as the result of her husband s death. Issue: Did the Licensee owe a duty of care to Mr Scott to refuse to hand over the keys, and to call his wife? NB: this would be in addition to the other publican duties (to keep him safe on site) If he refused to hand over keys he could be labile for property theft, false imprisonment. Held: A proprietor or licensee of a hotel owes no common law DOC to customers to monitor or minimise the service of alcohol, or to protect customers from the consequences of the alcohol they choose to consume. Not discussed; whether there is a common law DOC owed to a third party who suffers damage as the result of the intoxication of a customer Step 1: Reasonable foreseeability: - It is reasonably foreseeable that a patron might be injured, if a licensee is negligent in preventing them from driving home while intoxicated. Step 2: Salient features: Was the PL vulnerable?! He was aggressive, not vulnerable. He chose to take the risk. Was the D in control! The defendant (pub) was NOT in control of the activity that created risk! There was an informal arrangement to look after the keys/motorcycle but the pub had no authority to keep the keys (couldn't t refuse to hand them back)! The PL is in control- how is a pub going to monitor his condition? He is a grownup. Compare to lifeguard situation.
! Would have been different if the PL has said he was relying on the pub (Pub then takes on the assumption of responsibility and D takes less care) Was there a pre-existing relationship (yes- more likely to find duty of care) o Publican and patron- not as strong as doctor/patient but still relevent Were there any reasonable steps the PL could have taken to protect himself (but chose not to)? o He could have drunk less, called his wife, could have walked home, could have not driven his motorbike there. o IF there were no reasonable steps AND PL was vulnerable then a DOC would be owed Conflict of law o Finding a DOC here would put the D in an impossible position o If pub kept keys they would be breaching other areas of law They also noted TAS legislation required pubs to expel drunk patrons- if they ruled here that pub owed a DOC to keep him, it would conflict with this statute. Aseels Palace v Moubarak SALIENT FEATURES APPROACH licenced premise have duty to control patrons and prevent injury from violent behaviour A patron shot and killed 2 PL s on NYE in a restaurant PL s sued the restaurant for their injuries PL s alleged that the restaurant owed them a DOC to provide sufficient security during the function, and control who entered the premise. D argued that they cannot be responsible for the criminal acts of third parties Issue: Does a restaurant owe a DOC to patrons that are assaulted in the restaurant? Step 1: Reasonable foreseeability: It is reasonably foreseeable that if you are negligent in controlling violent patrons, another patron might be injured. Step 2: Salient features: Control what was the degree of the D s (restaurant s) control over the activity that gave rise to the risk? Consistency of law/duties- finding a DOC her is consistent with other Statutory responsibilities (liquor licencing laws) Held Licenced premise have a duty to prevent violent, quarrelsome or disorderly conduct of patrons therefore they also have a CL duty to take care (reasonable steps) to control patrons and prevent injury from such behaviour. When determining salient features, look at: - Features relevant in past cases (relevant established salient features) - Anything else salient in the present case. - Strong emphasis on reasoning by analogy and emphasis on the type of scenario you are faced with. - Features must sufficiently general in character, no personal discretion - Not all salient features are accorded equal weight How to use salient features approach: Novel scenarios (no established duty); salient features determines the existence of a duty Established duty scenarios; salient features defines scope of DOC, and whether D s conduct falls within this scope. NB: salient features can deny existence of a duty even if harm is reasonably foreseeable.
Kirby J on Salient features in Harriton v Stephens! 3 salient features were identified in Sullivan v Moody that often point against the existence of a duty.! Finding a DOC would; 1. Cut across or undermine other legal rules; 2. Be incompatible with another duty; 3. Expose the defendant to indeterminate liability (don t want to impose liability for an indeterminate amount, for an indeterminate time, to an indeterminate class)! Other factors capable of supporting a DOC have been identified 1. Vulnerability on the part of the plaintiff; 2. Special control; or 3. D s knowledge/awareness of risk or likelihood of harm to PL. Salient features established in various other cases; " Pl s Vulnerability/ inability to protect self from harm (e.g. CAL; Perre; Tame) " D s knowledge/awareness of risk or likelihood of harm to PL Relationship between the parties Proximity in the sense of physical closeness (Sulivan v Moody) X Indeterminate liability " D s control over situation (Perre)