General Duty Of Care - Torts Law

Class two- The General duty of care:

In class notes:

Civil Liability Act- outline changes

• Caps on compensation – Get 15% of the most extreme case. Reduce lawyer’s willingness to take on a case- no money to be gained from it (hit suburban lawyers). Statutes are compromises. They reveal underlying political ideologies.

• Modifications to liability: protections and exclusions:

  • Volunteers. They are protected from liability. Politicians want more volunteers.

  • Professionals. They often deal with life and death decisions. They should not have to also worry about liability.

  • Self defence.

  • Under influence of drugs/alcohol.

  • Committing serious offence.

• Apology- not admission of fault. Is it baseless without this? No legal duty in terms of compensation.

• Breach of duty and causation.

Civil Liability Act- Outline: Declaratory (how they want the law to be)

• Inherent risks (materialisation)

• Standard of care in contributory negligence.

• Liability of public authorities. Too many areas where local governments have liability.

Civil Liability Act- Outline: future:

• Exemplary or aggravated damages caused by negligence are abolished.

• ‘Good Samaritans’ are protected. We want people to look after each other in society.

• Contributory negligence may defeat claim for negligence.

The beginning of negligence or action on the case (failure to exercise reasonable care and skill):

The three elements:

• Cause of action: the defendant must have owed the plaintiff a duty of care.

• The duty must have been breached.

• The breach must have caused damage to the plaintiff.

Historical significance:

• Today a duty of care must be shown to exist

• A legal formula decides the particular duty situation. It is well established for example that drivers owe a duty of care to pedestrians.

• Before the Donahue v Stevenson case there was no duty of care arising out of negligence. This case set a pattern for it. In the past the situation was governed by privity of contract.

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Donoghue v Stevenson (1932) - introduced a duty of care to third persons in negligence.

Facts:

• Donoghue suffered severe gastro enteritis when she found a snail in her ginger beer.

• The bottle was opaque and Donoghue had no reason to suspect it contained a snail.

• Stevenson was the manufacturer.

Remedy sought:

• Donoghue wanted damages.

Prior proceedings:

• Donoghue lost in the Scotland Court of Session. She appealed to the House of Lords.

Arguments of parties:

• Stevenson argued that Donoghue was a third party and is unable to sue because of privity of contract.

• Donoghue argued that the drink was sold under Stevenson’s name and it was his duty to provide a system that prevented snails getting into his ginger beer bottles and to provide an efficient system of inspection of the bottles.

Legal issue:

• Is a manufacturer obligated to take reasonable care in avoiding acts that one would reasonably foresee would injure their customers?

• If there is no duty, when does a duty of care arise?

Outcome:

• Donoghue won 2:3. Lord Buckmaster and Lord Tomlin dissented.

Legal reasoning:

• Lord Atkin reasoned that Stevenson had a duty of care because every person should have a right to demand relief for wrongdoing. It is a general public sentiment that a wrongdoer must pay. It is a form of “love your neighbour” but applied in the law. A person must contemplate how their actions will affect their neighbour. Heaven v Pender established that under certain circumstances, one man may owe a duty to another even though there is no contact between them. It would be a grave defect in the law if this were not so.

There is a duty of care? In class

• Review particular circumstances.

• General principle. More wrongdoing. Morally if there is a wrong doing someone should be held accountable.

• Limit: reasonable care not to injure your neighbour. Lord Atkin said, “reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”.

• Who is my neighbour? “persons who are closely and directly affected by my act that I ought reasonably to ought reasonably have them in contemplation as being so affected” Heaven v Pender.

• Proximate relationship. Not just chance.

• Apply law- If you cannot find a remedy there is something wrong with the system and this must be addressed.

• Analogy to other products: household items- In a civilised system there must be a remedy for this.

• Dangerous things and distinguish cases= in those case it was not proximate and they will not be used. If you have a dangerous thing then a duty of care will arise from that.

• Product liability (last paragraph). If you produce a product then you must ensure it is safe for the consumer.

Ratio decidendi:

• If the manufacturer could reasonably foresee that their preparation of their products could cause injury to the consumer, then they are bound to take reasonable care in preventing this harm.

• If their actions cause injury to the consumer’s life or property then the manufacturer will be found negligent.

What is meant by reasonably foresee-ability?

• It is a central element for the duty of care test. Without being able to foresee a risk one cannot avoid it.

• You do not have to reasonably foresee the precise order of events that will occur. You don’t need to reasonably foresee the precise nature of the injury someone will suffer.

• Duty: Is relationship between defendant and plaintiff reasonably foreseeable? Narrow standard.

• Breach: Is the risk of injury reasonably foreseeable?

• Remoteness/ causation: Is the injury caused reasonably foreseeable?

• In Wyong Shire Council v Shirt (1980) it was found that reasonably foreseeable was “not fanciful or farfetched” but this is often criticised as too low a threshold.

The unforeseeable plaintiff:

• In Palsgraf v Long Island R R Co (1928), two men ran to catch a train and dropped a parcel of fireworks. They exploded and knocked some scales, which hit the plaintiff and injured her. She lost because she was an unforeseeable plaintiff.

• A controversial decision found Mrs Bale in Bale v Seltsam Pty Ltd (1996) to be an unforeseeable plaintiff when she got mesolothemia due to her husband bringing home asbestos on his clothes after work. The company was found not to have known the scientific state of affairs, which Fitzgerald P disagreed with. Yet in 2009 a woman in Dawson v James Hardie was awarded damages.

• In Tame v NSW, Mrs Tame was involved in a car accident. The police claimed she had an alcohol reading of 0.14 which was in fact the reading of the other driver. She became over anxious about the delay of the insurance payments caused by the mistake. Her inability to accept...