#6917 - Torts B Summary Duty Of Care - Torts Law

DUTY OF CARE

1. What is the relationship between the P and the D?

2. Is there settled law that a duty of care exists? Actions in negligence must fail where duty is not established

   1. Types of situations where there is an established duty of care:

      1. Manufacturers and ultimate consumers: Manufacturer liable for defective product where consumer suffers damage in absence of contract. Neighbourhood test: A person is your neighbour when they are so closely affected by (your) act that (you) ought reasonably to have them in contemplation when you think about the act or omission Donoghue v Stevenson

         • 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 HydroElectric Authority

         • Applicable when defect was hidden and unknown to consumer (eg latent defect) Grant v Knitting Mills

      2. Road Users

         • Motorist owes a duty of care while driving the care to persons who might be affected by a lack of care in driving Chapman v Hearse

      3. Advocates: There is no duty of care because there is a need to bring about a finality in litigation in order to preserve public confidence in the administration of justice D’Ort-Ekenaike v Victoria Legal Aid and McIvor

      4. Unborn Plaintiffs: A duty of care may exist not to cause injury to a plaintiff en ventre sa mere. It is immaterial whether at the time of the act the victim was in existence or not, so long as the victim was a member of a class reasonably likely to be adversely affected by that act Watt v Rama

      5. Omissions: An omission to act where it is foreseeable that failure to act may harm the plaintiff is not necessarily actionable conduct Sutherland Shire Council v Heyman

         • The relationship between the tortfeasor and the victim must contain some feature which makes it reasonable for the law to impose liability for a failure to act

           • The ownership, occupation or use of land may be such a failure

           • Earlier act of the defendant eg. If they create a danger, the fact that an omission is the cause of harm will not prevent liability

      6. Special Relationships that create duties:

         • Contractual relationship

         • Non-contractual relationships where there is a foreseeable risk of harm ensuring of the work voluntarily undertaken is done carelessly

         • Fiduciary relationships

         • Employment relationships

         • Relationships between occupiers of adjoining land

      7. Teachers and School Authorities: There is a general agreement that a non-delegable duty of care is a duty to ensure that reasonable care is taken and not an absolute obligation to prevent harm from ensuring. Can include omissions to act.

      8. Doctor-Patient: The doctor, as the repository of specialised information or knowledge, is, effectively, the only source upon which the individual can draw and on whom the individual must rely on

         • May not arise in all circumstances eg. where the doctor examines a person on behalf of an insurance company

      9. Parent-Child: The moral obligation of the parent, does not, of itself, automatically translate into a legal obligation. Hahn v Conley

         • The courts reluctance to allow claims when there is ‘bad parenting’ arise from policy considerations

           • Parents owe a duty of care to their children regarding any positive act they perform which injures their children BUT not to a failure to take action to protect one's children Robertson v Swincer

3. If there is no settled law

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

   2. Whether a duty should be supposed in certain situations. Categories of duty are never closed Donoghue v Stevenson

      1. Reasonable Foreseeability Test: Was it reasonable foreseeable that D’s failure to exercise reasonable care might harm P

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

         • There was not liability to a plaintiff towards whom harm could not be anticipated Cardoxo CJ

         • “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

         • plaintiff does not have to show that the precise manner in which his injuries were sustained was reasonably foreseeable. It is sufficient if D foresaw the P (or class of persons including the P) was at risk of some kind of harm Chapman v Hearse

         • What degree of risk must be foreseeable?

           • The risk must be ‘likely to occur’ or ‘not unlikely to occur’ Caterson v Commission of Railways

           • It needs to be foreseeable to a reasonable person in the sense of being a real and not farfetched or fanciful possibility of harm to the P Sullivan v Moody (Sexual abuse)

         • Vulnerable Plaintiffs

           • You must look at whether the D could reasonably have been expected (1) To know of the vulnerable group in question and (2) To know that they could be harmed by their general activities.

           • There is no special duty of care owed by D to an abnormal or vulnerable plaintiff to take special care which would not exist in relation to normal persons Levi v Colgate Palmolive (bath salts)

           • The courts have a greater appreciation of social diversity. Being blind does not make you a vulnerable plaintiff. Thus is the omission to act is towards a blind person there will be a duty of care in that situations Hayley v London Electrical Board

           • However, if a reasonable person in D’s position could have foreseen harm to a class of persons including P (that is, D knew or ought to have known of P’s vulnerability) Reasonable person will be assumed to have that knowledge Hayley v London Electricity Board

      2. Salient Features Test: Are there sufficient salient features arising from the facts that D’s failure to exercise reasonable care might harm the P. It is a case by case consideration based on past precedent.

         • Conflict of duties: will the finding of a duty in this instance conflict with an already existing duty? Sullivan v Moody

         • Conflict of laws: is there a better suited area of law under which the P’s action should be brought? Sullivan v Moody

         • Illegality: on the part of the P Gala v Preston

         • Floodgates: would a finding of a duty of care in this case risk flooding the courts with claims of liability Sullivan v Moody

         • Degree of control that D could...