#7171 - Duty Of Care - Torts B

[P] must first prove that [D] was under a duty to take care of him/her.

Here, [explain the relationship between P and D].

Is this a settled law relationship?

A settled law relationship is one where the weight of authority shows a DOC does or does not exist.

Settled law cases where a duty does exist:

• It is settled that a doctor always owes a DOC to his/her patient (Rogers v Whitaker/F v R)

• It is settled that a driver always owes a DOC to other road users (Chapman v Hearse)

Settled law cases where a duty does not exist:

• Per D’Orta-Ekenaike, it is settled that an advocate (barrister) does not owe a DOC to his/her client for:

  • Work done in court proceedings or

  • Work done out of court leading to a decision affecting the conduct of the case in court or work intimately connected with work in court (the court thought these formulations were substantially the same)

• It is settled that parents owe no general DOC to ensure their children are protected at all times from harm where the parent did no positive act creating a risk (Robertson v Swincer)

  • Parents owe a DOC to avoid doing positive acts that create a risk of harm to the child (Robertson v Swincer)

As this is not a settled law relationship and no particular duty situation arises, courts will consider the general duty test under Sullivan v Moody.

A DOC will exist where a reasonable person (RP) in the position of D would have foreseen that careless conduct of any kind on the part of D may result in damage of some kind to the P or a class of persons to which P belongs (San Sebastian).

• Harm is foreseeable if a RP would have foreseen a ‘real’, not ‘far-fetched or fanciful’ possibility of some harm occurring to P (Sullivan v Moody).

• The precise nature of the harm and manner in which it occurs need not be RF; the question is whether a consequence of the same general character as what occurred was RF (Chapman v Hearse).

Vulnerable plaintiffs

D may argue P is particularly vulnerable to harm due to [per facts] and so it is not RF that harm would occur. But in such cases, the same test for RF as normal (as above) will apply (Levi v Colgate-Palmolive).

• If D’s act would not have affected a person of normal susceptibility, P cannot recover (Levi).

• If D’s act would have affected a person of normal susceptibility, P is able to recover for any extra damage incurred due to abnormal susceptibility (Levi).

[Note if satisfied; consider Haley if not]

However, if the D could reasonably have been expected to

1. know of the vulnerable group (or person); and

   • it is enough to know that 1/500 people in an area have a vulnerability (Haley)

2. know they could be harmed by D’s general activities

then the RF test is satisfied (Haley v London Electricity Board).

RF alone is not enough to establish a DOC: Sullivan v Moody. There is also a requirement of salient features (SFs), which are akin to policy considerations that help decide if P should be able to recover. The following SFs may apply.

1. If finding a duty would conflict with an existing duty, it is less likely a DOC will be found (Sullivan v Moody).

   • Eg no duty to take care of parent’s interest where it would conflict with duty to child to investigate sexual abuse (Sullivan)

2. If there is a better suited area of law under which P’s action should be brought, it is less likely a DOC will be found (Sullivan v Moody)

3. If P was involved in an illegal activity at the time of the breach, it is less likely D owed a DOC to P (Gala v Preston).

   • A DOC may not be imposed if it would be incongruous to hold that a participant in the joint criminal enterprise owed a duty to another participant (Miller v Miller).

   • A DOC may not be imposed if part of the purpose of the law breached is to preclude a claim in negligence by those breaching it (Henwood).

4. If a finding of a DOC would risk flooding the courts with claims, it is less likely a DOC will be found (Sullivan v Moody).

5. Other salient features from particular duty situations if applicable

Particular duty: mental harm

P may allege this is a particular duty situation (PDS) in which D owes him/her a duty not to cause mental harm, since he/she suffers from [the mental condition]. This is a psychological or psychiatric injury, thus mental harm per WA s 67; it is a recognised psychiatric illness, meaning that P may recover for it (WA s 75). Plaintiffs may recover for injuries consisting wholly or partly of mental harm (WA s 23).

The mental harm here is

6. Pure mental harm, as it was not a consequence of another injury (WA s 67)

7. Consequential mental harm, since it was a consequence of another injury, namely [per facts] (WA s 67)

   • Injury means personal or bodily injury, including pre-natal injury; psychological or psychiatric injury; disease; and aggravation, acceleration or recurrence of an injury or disease (WA s 67)

The common law is not affected except as provided in the legislation (WA s 71), so courts will use case law alongside legislation to decide whether a duty exists.

Specific situation: messengers

It was held in obiter in Annetts that there is not DOC to avoid psychiatric harm caused by the manner in which bad news is given by messengers; however, there MAY be a DOC to avoid causing mental harm by carelessness in the accuracy of information communicated.

Here, D’s alleged negligent act appears to have caused P psychiatric harm

8. Directly, by [eg placing the P in a situation where he/she was in danger himself/herself]

9. Indirectly, as P suffered mental harm due to witnessing another person being [killed/injured/put in danger]

Direct

P must show that the mental harm was RF and also show relevant salient features as to why the court should impose a duty of care. [Go on to reasonable foreseeability]

Indirect

P must show that mental harm was RF and salient features showing why a DOC should be imposed. However, where the mental harm is caused indirectly, there are preliminary statutory hurdles under WA s 73 to overcome.

P must show the victim would have been able to recover in respect of D’s act or omission (WA s 73(3)). [Note issues]

Additionally, P is not entitled to recover unless P witnessed, at the scene, another person (‘the victim’) being killed, injured or put in danger (WA s 73(2)(a)) OR P is or was in a close relationship with the victim (WA s 73(2)(b)).

Did P witness [X] being killed, injured or put in danger ‘at the scene’?

‘At the scene’: A plaintiff will still be considered to have witnessed at the scene where death, or injury, or being put in peril takes place over an extended period, rather than in an instant (Wicks)

Per Wicks, witnessing ‘at the scene’ does not require:

• observation of a particular victim (witnessing a number of different victims is sufficient)

• that P was present for the initiating event causing the continuing death, injury or peril as long as it was continuing when P was present

‘Being injured’: Per Wicks, a person is ‘being injured’ if

• after being injured due to D’s negligence, he or she is exposed to further injury by being moved or rescued

• he or she is distressed and incurring psychiatric injury by seeing the results of D’s negligence

‘Being put in danger’: A person is ‘put in danger’ when put at risk; the person remains in danger (is "being put in danger") until the person ceases to be at risk (Wicks)

Reasonable foreseeability

A DOC will not be owed to P unless D foresaw or ought to have foreseen that a person of normal fortitude might suffer a recognised psychiatric illness in the circumstances of the case (WA s 72(1)).

If D believes P is a person of normal fortitude

The circumstances include:

• whether the mental harm was suffered due to sudden shock (WA s 72(2)(a))

  • The lack of a singular ‘sudden shock’ is not determinative of foreseeability and does not preclude a conclusion a DOC was owed (Wicks)

• whether P witnessed, at the scene, a person being killed, injured or put in danger (WA s 72(2)(b))

  • artificial if P him/herself put in danger, but will still be in favour of P

• the nature of the relationship between P and any person killed, injured or put in danger (WA s 72(2)(c))

• whether there was a pre-existing relationship between the P and the D (WA s 72(2)(d))

[Weigh up which are in favour of P and D. Note whether a RP would think a person of normal fortitude would suffer a psychiatric illness]

If D does not believe P is a person of normal fortitude

s 72(1) does not apply if D knew or ought to have known that P was a person of less than normal fortitude (WA s 72(3)) [note if this is the case] . Accordingly, the common law test for RF will apply (WA s 71).

[Refer to reasonable foreseeability test in ‘not settled law’ section: page 3]

Salient features

RF alone is not enough to establish a DOC: Sullivan v Moody. In addition, salient features (SFs), which are essentially policy reasons courts will consider to decide if P should be able to recover are required. The following SFs will apply.

• If P and P have an antecedent relationship where D assumed responsibility to avoid exposing P to risk of psychiatric harm, a court is more likely to impose a DOC (Annetts)

• If to impose a DOC would expose D to indeterminate liability, a court is unlikely to do so (Annetts, Gifford)

• If P is vulnerable (he/she had no way of protecting himself/herself against the risk of psychiatric harm that eventuated) a court is more likely to impose a DOC (Annetts, Gifford)

• If the D had control over the...