#6929 - Torts B Extended Duty Of Care - Torts Law

Duty of Care

Liability in the tort of negligence may arise where (i) a plaintiff sustains damage as a result of the defendant’s negligent conduct, and (ii) the defendant owed the plaintiff a duty of care not to cause that damage. Whether or not a duty of care exists in a given situation is regarded as a question of law.

Obviously, more people suffer damage from careless acts of others than from intentional ones, and the provision made for them is of cardinal importance in the law of torts.

The common law has recognised that, in certain circumstances, persons guilty of careless conduct were liable in damages to their victims.

Prior to the 1930s, was not a distinct tort. There was an insurance crisis in Australia in 2003 which led to a significant period of tort law reform

Historical Development/Introduction

Scope

Negligent acts to do not come within the scope of the tort of negligence only

• Trespass and nuisance are often available even though the act complained of is not intentional but merely negligent

Conduct must be negligent and not merely careless

Careless act do not necessarily constitute the tort of negligence

• The law prescribes certain standards of conduct to which persons in particular circumstances ought to conform, and if, from failure to attain those standards, such harm ensues, that is actionable negligence

• In strict legal analysis, negligence means more than heedless or careless conduct Lord Wright

Heaven v Pender

• The defendant (owner of a ship dock) pursuant to a contract, supplied a stage supported by ropes which would be slung over the side of the ship why it was in dock

• Those employed by the independent contractor used the stage

• One was injured when the rope gave way whilst he was standing on the stage

• The ropes had been scorched before supplied to D who had failed to give reasonably careful attention to their condition

• Court of Appeal held that D was liable, emphasis was placed on P being an invitee and the D had a business interest in the P being there and doing his work and the invitation extended to the use and all appliances provided by the dock owner as part of using the dock

  • “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 of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger”

The Duty concept in General

Three types of situations that may occur:

1. When there is settled law that a duty of care exists

2. When there is settled law that a duty of care does not exist

3. There is no settled law on whether a duty of care exists or does not exist

Duty as a complex concept

• Actions in negligence must fail where duty is not established, this acts as an important control mechanism against an unwarranted expansion of liability

• The defendant must be proved to owe a duty at least to somebody to act or refrain from acting

  • There must be one of those general situation which the law recognises as being capable of giving rise to a duty

  • Even if there is no duty, the plaintiff must further show that the defendant, when acting in the manner complained of, owed a duty specifically to the plaintiff

  • Essentially, A must show that not only does B owe A a duty but a duty in respect of that interest has been violated

Rationalisation of the duty concept

Before Heaven v Pender, there were cases which established that there was a duty in some situations and not in others, however the case aimed to rationalise it.

Donoghue v Stevenson

• Held: manufacturer of a product who supplies it to a distributor in circumstances where the distributor or the ultimate consumer who purchases such product are prevented from discovering the defect through inspection is under a legal duty to the ultimate purchaser/consumer to take reasonable care that the product is free from defect likely to cause injury or death

• Manufacturer liable for defective product where consumer suffers damage in absence of contract

• Lord Aitkin in Donoghue v Stevenson stated “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 - the 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 into question” (Neighbour Test)

Donoghue v Stevenson Firmly established a duty of a manufacturer of goods to eventual users

• This is expanded to ‘include not only good and drink but of such diversified character as lifts, underwear, motorcars and tombstones’ Baar v Snowy Mountains Hydro0Electric Authority

• Established that the law of negligence is capable of further expansion and is not rigidly tied down by existing precedents

• One must ascertain whether on similar facts the courts have already recognized a duty; remember, whether a duty exists, remembering that whether a duty exists will be a matter of law, not fact.

Grant v Australian Knitting Mills [1936] AC 85

• This is expanded to ‘include not only good and drink but of such diversified character as lifts, underwear, motorcars and tombstones’ Baar v Snowy Mountains Hydro0Electric Authority

• Applicable when defect was hidden and unknown to consumer (eg latent defect)

• Lord Wright confirmed that Donoghue v Stevenson “treated negligence as a separate tort in itself…. [no] dependence on contract”

Winterbottom v Wright

• Contract to provide contract with the postmaster general to provide a coach in a fit and proper condition in order to move mail.

• Atkinson also had a K to convey the coach and supply the horses and the men

• A man was injured during using the car

• The neighbour test has come to define in what circumstances the defendant will be held a duty of care to the plaintiff

Reasonable Foreseeability

• Reasonable Foreseeability of harm to the plaintiff or to a class of persons of which P is a member is a necessary condition of the existence of a duty of care owed by D to P but it is not sufficient in the circumstances

• Reasonable foreseeability is necessary but not sufficient to establish a duty of care where there is no settled law: Sullivan v Moody

• Reason was the concern that claims for negligence might get out of hand. Reasonable F is a control mechanism

• It may be particularly at issue where harm is not directly caused by D and in instances of non-physical loss – something more than reasonable foreseeability is required

• Questions to ask are:

  • Who is the person to whom a duty is owed (who is my neighbour?)

  • Whether a duty should be supposed in certain situations

Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd, per Glass JA:

• “It must be reasonably foreseeable to a reasonable person in the position of the D that careless conduct of any kind on the part of the D may result in damage of some kind to the P or to a class of persons to which the P belongs” - Chapman v Hearse

Chapman v Hearse

• Car driven by Emery

• It was hit by a second car which was negligently driven by Chapman

• Chapman was catapulted out of his car as a result of collision and lay injured on the road

• A doctor Cherry saw the accident and stopped to help Chapman

• Cherry was killed by hearse

• HC did not accept the argument that Chapman could not have foreseen the precise sequence of events that led to Cherry’s death

• It was enough that Chapman should have foreseen as a more general matter that a carelessly caused collision might lead to someone trying to help those that were injured by the roadway at some risk to themselves

• Both drivers were held to owe Doctor Cherry a duty of care as in both cases Cherry was considered to come within a reasonably foreseeable class of persons

• HC went on the explain that the plaintiff does not have to show that the precise manner in which his injuries were sustained was reasonably foreseeable

• What is required to be shown is that it was reasonably foreseeable that the defendant’s conduct might cause harm to a particular class of persons and that particular class of person includes the plaintiff

What degree of risk must be foreseeable?

There is a lowering of the threshold of which reasonable foreseeability of harm can be found

Caterson v Commissioner for Railways

• P boarded a train to assist a departing passenger with his luggage

• The train left the station without warning

• P’s son was stranded on platform alone

• He jumped from the train and was injured

• There was a duty of care as the consequences were ‘not unlikely to occur’

• It excludes possibility which are theoretical and unreal in all the circumstances

• It accommodates the idea of a real risk or danger in relation to some situations it may possibly be more embracing than either of those terms

• ‘likely to occur’ or ‘not unlikely to occur’

Sullivan v Moody

• Parents had been accused of child abuse after medical practitioners who worked in a state hospital in the sexual assault referral clinic looked at the children

• It was alleged that the medical practitioners negligently came of the conclusion about child abuse and had communicated it to the department of community services in such a way that the father seemed to be the obvious cause of the abuse

• The damage was shock, psychiatric injury and financial loss

• It needs to be foreseeable to a reasonable person in...