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Torts Exam Notes: 1. Did the defendant owe the plaintiff a duty of care?

A defendant will only be held liable in circumstances where it can be determined that he or she owed the plaintiff a duty to take reasonable care to avoid causing the plaintiff damage or loss. Defendant will owe the plaintiff a duty of care in two situations: Where the relationship between plaintiff and defendant falls within an established category in which the court is required to impose a duty of care such as: Driver and other road users o Chapman v Hearse (1961) 106 CLR 112 o Imbree v McNelly [2008] HCA 40 [L&H 7.8] Employer and Employees o Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 81 (L&H 7.8) Manufacturers and Consumers (product and liability) o Donoghue v Stevenson [1932] AC 562 o Seltsam Pty Ltd v McNeil [2006] NSWCA 158 Professionals and Client o Rogers v Whittaker (1992) 175 CLR 479 That duty is a single comprehensive duty covering all the ways in which [the professional] is called upon to exercise his skill and judgment Scope: It extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case. Included in the scope of that general duty is duty to warn of material risks of proposed treatment Occupier and Entrant (occupiers liability) o Australian Safeway Stores v Zaluzna (1987) 162 CLR 479 Duty and scope of an occupier is the same as that when generally determining negligence in torts. o Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 No duty on an occupier for harm caused by criminal behaviour Per Gleeson CJ No control over attackers

No relevant reliance No assumption of responsibility

o Occupiers Liability Act 1985 (WA) Person occupying or having control of premises (s2); nothing in ss 5-7 alters the rules of the common law in relation to who owes a duty as an occupier (s4(2)) (scope and content of that duty) The common law has long recognised that the occupier of premises owes a duty to take reasonable care for the safety of those who enter the premises (scope). That duty arises from the occupation of premises. Occupation carries with it a right of control over the premises and those who enter them Cole, per McHugh J Depends not on ownership, but on degree of control Wheat v Lacon Can be more than one occupier AMF International Ltd v Magnet Bowling Ltd

Where the court adopts the incremental approach based on salient features and determines that the defendant owes a duty to the plaintiff Donohugh v Stevenson Neighborhood approach: 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? [P]ersons 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. per Lord Atkin Duty to those: o So closely and directly affected o Ought reasonably to have them in contemplation as affected

1. Reasonable foreseeability of the Plaintiff 5b(1)(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known) Where the relationship between plaintiff and defendant does not fall within an established category, the court will examine the relevant indicia to decide whether or not to impose a duty of care on the defendant (Perre v Apand)

Although reasonable foreseeability of the Plaintiff is a significant salient feature, it is not sufficient alone to establish a duty of care (Jaensch v Coffey) In general, the Plaintiff is required to prove that a reasonable person in the position of the Defendant would recognise that negligent conduct may cause injury to the plaintiff (Minister v San Sebastian Pty Ltd) Whether the defendant o could have avoided the damage by exercising reasonable care and was in such a relationship to the plaintiff that he or she ought to have acted to do so o a duty of care will be imposed when it is reasonable in all the circumstances to do so Graham Barclay Oysters Per Kirby J What is forseeable is a question of fact - prediction if you like. But reasonableness is a value (Graham Barclay Oysters) Chapman v Hearse Facts o The defendant, Chapman, negligently drove his car and cause a serious car collision o A doctor, Cherry, drove past the incident and offered medical assistance to the defendant o Mr. Hearse negligently drove into Mr. Cherry and killed him o The widow of Dr. Cherry successfully brought action in negligence against Mr. Hearse o A case of contributory negligence arose o Chapman argued that he owed no duty of care to o Dr. Cherry because it was unforeseeable that a doctor would offer medical assistance to him and be later struck by a third party. Held o It is not necessary that the precise sequence of events leading to the injury is foreseeable o It is sufficient that the plaintiff belong to a class of persons (in this case rescuers) to whom damage could have been foreseen.

Bale v Seltsam Pty Ltd Facts

o The plaintiffs husband was exposed to large quantities of asbestos at the defendant companys workplace o The plaintiff contracted mesothelioma as breathed in dust brought home by her husband o She brought an action in negligence against the defendant. Held o A defendant will not a duty of care to an unforeseeable plaintiff. o The defendant company will not be held liable because the lack of scientific knowledge on the effect of asbestos meant that the plaintiff was unforeseeable.

Palsgraf v Long Island Railroad Co Facts o Two employees of the defendant assisted a passenger to board a train and knocked a package out of the passengers hands. o The package contained fire works and cause an explosion which culminated in the plaintiff sustaining physical injury o The plaintiff brought an action in negligence against the railway company Held o The defendant did not owe a duty of care to the plaintiff because there was no sign that the parcel contained fireworks and hence it was not reasonably foreseeable that the plaintiff could sustain damage

Bourhill v Young o Facts o The plaintiff heard a motorcyclist being involved in an accident which resulted in his death o She suffered nervous shock and sued the estate of the negligent motorcyclist for negligence Held o The defendants duty of care does not extend to the world at large.

o The defendants duty of care was confined to other road users whom he could reasonably foresee would be harmed by his negligence Special Cases Disabled and Duty Haley v London Electricity Board o Facts o Employees of the LEB were digging a trench in the pavement. They placed a five-foot long tool in front of the trench on an angle to give warning to pedestrians of the hazard so that they could avoid injury. o Haley a blind man was walking along the pavement using a walking stick to detect objects. His stick missed the tool and he tripped over it causing him to hit the pavement. o As a result of striking the pavement he became deaf. o Held o The Board owed a duty of care to Haley as it was reasonably foreseeable that a blind person could walk down the pavement and suffer injury if the board or its employees failed to take reasonable care for their safety. Occupiers and Duty Australian Safeway Stores v Zaluzna Facts o Zaluzna entered a supermarket owed by Australian Safeway Stores. It was a rainy day and she slipped on the floor and sustained injuries. o She sued on the basis of a breach of a general duty of care, also a breach of duty of care owed by occupier to invitees. Held o In determining the liability of an occupier there is no difference between a general duty owed and a special duty owed. All that is necessary is to apply the general rules of negligence to determine if a duty of care is owed to the defendant.

Mental Harm and Duty s5S . Mental harm: duty of care The Scope covers psychiatric injuries sustained by plaintiffs: Fearing for their safety: Dulieu v White Fearing for the safety of a close relative: Hambrook v Stokes Witnessing the immediate aftermath of an accident involving a loved one: Jaensch v Coffey Tame v New South Wales; Annetts v Australian Stations Pty Ltd o Facts o The two cases raised similar issues so the high court heard them together o Tame was involved in a motor accident. Although she had no alcohol in her system she was incorrectly recorded to have blood alcohol content of 0.14. o The mistake was subsequently discovered and correcte by the police. o A year later Tames solicitor informed her of the error and she became obsessed with the error and subsequently suffered a psychiatric illness. o Mr. and Mrs. Annetts agreed for their 16-year-old son to work at a cattle station after being assured he would be under constant supervision. o Soon after leaving their son was sent to a remote property by himself. o He went missing and when Mr. Annetts was informed of this he collapsed. o His body was found in the desert 5 months later, it was found that he died from dehydration, exhaustion and hypothermia. Both parents suffered a psychiatric injury due to the events. o Held o Tame was unable to recover because the courts found that it was not reasonably foreseeable that a person would suffer psychiatric injury in her circumstances. o The Annetts were able to recover damages even though their injury was not the result of sudden shock nor did they arise from witnessing the distressing event or its immediate aftermath.

Unborn Children and duty

An unborn child who sustains an injury and who is subsequently born alive can sue a person whose negligence caused the injury. The potential defendants in such an action can even include the parents of the person who was injured while in the womb: Lynch v Lynch The right of a person to sue for the injuries they sustained while still in the womb was recognised in Watt v Rama (pg. 26) Although a person can sue for injuries they sustained while they were in the womb they cannot sue a defendant on the grounds that the only reason they are alive is due to the negligence of the defendant: Harriton v Stevens

Recreation Activities and duty A duty of care can be owed to people involve in sport or other recreational activities: Rootes v Shelton Intoxication and duty On the existence of a duty of care, Gleeson CJ held that there was no general duty imposed on a supplier of alcohol to take reasonable care to protect a person from the risk of physical injury resulting from selfinduced intoxication: Cole v South Tweed Heads Rugby Club (book pg. 28) The practical consequences of such a duty are worth noting The consequences of the appellants argument as to duty of care involve both an unacceptable burden upon ordinary social and commercial behaviour, and an unacceptable shifting of responsibility for individual choice

Omissions and duty As a general rule the law does not impose liability on people for failing to assist a person who has sustained an injury of loss or to take steps preventing the person from sustaining injury or loss. Gummow J in Roads and Traffic Authority of New South Wales v Dederer whatever its scope, a duty of care imposes an obligation to exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct General absence of a duty to act to prevent injury was discussed in Stovin v Wise (pg. 30) Hargrave v Goldman: The law casts no duty upon a man to go to the aid of another who is in peril or distress. There is no general duty to help a neighbour whose house is on fire. Sutherland Shyer Council: foreseeability of an injury that another is likely to suffer is inefficient to place them under a duty to him to act to prevent that injury. However if you potentially do something that might

put someone under the reliance that you are not going to omit to do something you may have a duty. Kirkland v Veenstra: Two police officers that came across a man sitting in a car park and he had an exhaust pipe from his car to his window and they went to see if he was aright and he said that he was fine and said he didnt need assistance. The wife sued for negligence and nervous shock to family members. o Number of policy considerations: personal autonomy, would also lead to general duty to the public who would then be expected to act if they thought somebody was going to commit suicide, position to minimize risk however there is no general duty to rescue o Whether the police officers act reasonably allowing the man to go home was never decided. Assumption of responsibility: A teacher who takes a child to the beach may have a duty to rescue them Ludley v Handson Creational contribution of the risk: Unknown motorist runs over an animal on the road, the animal is injured and remains on the road and somebody then is injured by crashing into it.

Rescuers and Duty Rescuers will normally be owed a duty of care from a person in a dangerous situation or had a sufficient degree of control over the situation in which the danger occurred. The duty will exist even if the person being rescued is not owed a duty of care by the defendant Videan v British Transport Commission No general duty to rescue Kirkland v Veenstra However.. Positive duty exists only in exceptional cases marked by such special features as: o Assumption of responsibility (express, implied, contractual, statutory) o Creation of or contribution to risk Public Bodies and Duty s5W: Principles concerning resources, responsibilities etc of a public body or officer The following principles apply in determining whether a public body or officer has a duty of care or has breached a duty of care

s5X: Policy defence A policy decision cannot be used to support a finding that the defendant was at fault (unless ) s5AA: Exercise of function or decision to exercise does not create duty The existence or otherwise of a common law duty of care allegedly owed by a statutory authority turns on a close examination of the terms, scope and purpose of the relevant statutory regime. The question is whether that regime erects or facilitates a relationship between the authority and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence. If this is answered in the affirmative then a duty of care is owed Graham Barclay Oysters Graham Barclay Oysters o Facts o Group of consumer caught hepatitis A after consuming contaminated oysters, they then sued the state and the council. They alleged that the state and council had various statutory powers in regards to the maintenance of water (specifically sewerage) and the NSW government has control over the lakes oyster injury. o Held o They didnt owe a duty because it was a policy decision for the state government to get involved in the oyster industry. In 1996 there was debate about whether it was appropriate for the government to get further involved. Differentiated between policy of government and the operations side of government. Owed a duty of care in operations but not in matters of policy. There are limits to what the court can look at given the nature and responsibilities of government. The council or state did not actually have control of the oysters themselves. (Main focus point: salient features and control)

There can be no duty to act in a particular way unless there is authority to do so. Power is therefore a necessary condition of liability but it is not a sufficient condition. Stuart v Kirkland-Veenstra

2. Salient Features Vulnerability and control In Ryan v Great Lakes Council, the High Court identified the following salient features which can be taken into account when determining whether the Defendant owes the plaintiff a duty of care: o The nature and degree of control exercised by the Defendant over the risk of harm that eventuated; and o The degree of vulnerability of the Plaintiff who relies on the proper exercise of reasonable care and skill by the plaintiff

Agar v Hyde Facts o Two rugby union players sustained serious injuries in the scrum during a rugby union game o At the time of the incident, there was a body of evidence indicating the danger of scrums o The plaintiff alleged that the International Rugby Football Board owed them a duty of care to amend the rules so as to avoid these dangers Held o The defendant did not owe a duty of care because o They had limited control over the matches o If they did owe a duty of care, this duty could potentially be owed to thousands of potential plaintiffs; and o The plaintiffs voluntarily played the game and knew of the inherent risks

The vulnerability of the plaintiff will likely be a key factor in determining whether they are able to recover damages for pure economic loss: Woolcock Street Investments Pty Ltd v CDG Pty Ltd . o Examples of these in pg. 20 of the book Policy Considerations

The court can take into account policy considerations when deciding whether or not to impose a duty of care (Sullivan v Moody).

In Giannarelli v Wraith, the High Court held that legal practitioners are immune from actions in negligence because of the following policy considerations: o The imposition of a duty of care would affect the administration of justice; o To allow a barrister to be sued by a client in respect of completed proceedings would involve a court reviewing a decision of another court otherwise on appeal In Esanda Finance Corp v Peat Marwick Hungerfords, the High Court held that an auditor does not owe a duty of care to avoid economic loss to a company who relies on their reports because of the following policy considerations o To impose liability would increase the cost of auditing services; o There would be an increased burden on the courts to administer justice; o The potential group of plaintiffs have the means to avoid the risk of loss; o The auditors role in causing the economic loss is secondary; and o To impose liability would culminate in prolonged litigation Dorset Yacht Co v Home Office Facts o Juvenile offenders escaped from a juvenile justice centre and cause damage to nearby yachts o The yachts owners sued the Home Office for negligence Held o The state owes no duty of care to protect people in general against criminal behaviour o The defendant owed a duty of care to the yacht owners because their proximity to the juvenile justice centre put them at a greater risk then general members of the public

Hill v Chief Constable of West Yorkshire Facts o A woman was murdered by the Yorkshire Ripper as a result of the failure of the Yorkshire Police to apprehend him. o The mother of the woman sued the police in an action of negligence Held

o The class of potential plaintiffs (i.e young women) was too large for the police to owe them any duty of care o Police officers do not owe a duty of care in relation to their failure to apprehend a criminal Sullivan v Moody Facts o The plaintiff was alleged to have committed child sexual assault o The plaintiff brought an action in negligence against the government officials who charged the plaintiff for child sexual assault when he had not committed the alleged offence Held o Government officials investigating allegations of child abuse do not owe a duty of care to a parent who may be a suspect to conduct their investigations so as to avoid psychological harm of the parent o To impose a duty of care would be contrary to the statutory scheme that existed to protect the interests of children rather than parents Gala v Preston Facts o Gala, Preston and two other men were drinking alcohol in a hotel, it was found that it was likely that their blood alcohol concentration was great than 0.2% o Later that evening they decided to steal a car. Preston drove for a period of time and then Gala took over driving. Preston then moved to the backseat and fell asleep. o The car left the road and hit a tree, Preston suffered a number of injuries Held o High court held that Gala did not owe a duty of care to Preston considering the serious nature of the joint criminal activity and the high level of risk involved in such activity. o Also in Miller v Miller "[t]o seek to define a more limited duty of care by reference to the exigencies of the particular case would involve a weighing and adjusting of the conflicting demands of the joint criminal activity and the safety of the participants in

which it would be neither appropriate nor feasible for the courts to engage." Just because they are involved in joint illegality, that is not determinative The actual act of a plaintiff acting illegally is not a determinative of duty of care NOTE: the driver and the girl breached s371A of the code there was a defence to 371A if you tried to withdraw from trying to commit a joint criminal offence. o There is great significance in a policy consideration because the plaintiff wanted to get out of the car. She withdrew and therefore there is no joint illegal activity Because she was no longer participating in the crime of illegally using the car he then owed her a duty of care.

Caltex Oil (Australia) Pty Ltd v The Dredge Willemstad Facts o A dredge being used to clear a channel in Botany Bay, negligently damaged pipe lines belonging to Australian Oil Refining Pty Ltd. o The pipelines were used to supply crude oil to a refinery which was then returned to Caltex after processing o Caltex sued the defendant for damages for economic loss sustained by Caltex from their inability to use the pipelines Held o Caltex was able to recover damages for pure economic loss. Gibbs J held that although it would not normally be possible to recover damages for pure economic loss caused by negligent acts, a plaintiff could be successful if they could show that the defendant had a knowledge or means of knowledge that the plaintiff, individually and not merely as a member of an unascertained class, will be likely to suffer economic loss as a consequence of his negligence.

Scope of the Duty Jones v Bartlett (2000) 205 CLR 166 o Reasonable care required only the remedying of those defects of which the landlord was or ought to have been aware o Landlords have a duty to take reasonable care to avoid foreseeable risk of injury to prospective tenants, members of

their household and other persons lawfully on the premises. The practical extent of the landlord's duty requires all reasonable steps to be taken before the commencement of a tenancy to ensure that the premises are reasonably fit for the purposes for which they are let (ie, for habitation as a domestic residence).

Chapman v Hearse 105 CLR 112 o It is not necessary for the plaintiff to show that the precise manner in which his injuries were sustained was reasonably foreseeable; it is sufficient for if it appears that injury to a class of persons of which he was one might reasonably have been foreseen as a consequence. P 121 Roads and Traffic Authority of New South Wales v Dederer o ...duties of care are not owed in the abstract. Rather, they are obligations of a particular scope, and that scope may be more or less expansive depending on the relationship in question. Secondly, whatever their scope, all duties of care are to be discharged by the exercise of reasonable care. They do not impose a more stringent or onerous burden. Neindorf v Junkovic o Attempts to force more content into the duty element, by defining the obligation created with greater specificity, turns the traditional analysis of the tort of negligence on its head. It blurs the distinction between its constituent elements. It may lead to the decision as to breach being pre-empted.