Negligence (TORTS)

Working with Fact Scenarios

Negligence (Recap)

To prove negligence P must show:

1) D owed P a duty of care:

- Reasonable foreseeability test -Control and vulnerability - Policy considerations

2) D breached duty:

- Foreseeability of risk -Risk was not insignificant -Reasonable person would have taken
precautions 3) P suffered harm (loss/damage) as a result of breach - Factual causation (but for test) - Remoteness test

Other Categories of Negligence (Recap)

Mental Harm (nervous shock)

- Person of normal fortitude would have

suffered pure psychiatric injury Causal proximity Reasonable foreseeability of risk

Occupiers liability:

-A

person in occupation and control of land/structures owes duty of care to entrants to ensure premises free from danger - duty owed to both lawful and unlawful entrants

Fact Scenario

Talbot, a motor mechanic, spilt some engine oil near the open entrance-way to his workshop. He immediately scrubbed it with detergent, but the surface remained slightly oily. Imagine that the following accidents took place. Explain whether Talbot would be liable for the resulting damage.

(i) Talbot went to get some sand from the back of the workshop and the phone rang. Not wanting to miss a customer, he returned to answer the call. His back was turned for 30 seconds. During that time Nancy, a customer, entered. She slipped and broke her leg.

RECOMMENDED ANSWER

As an occupier of premises, Talbot owes a duty of care to anyone entering his workshop. Since it is reasonably foreseeable that the spilt oil could have caused an injury he is obliged to use a reasonable standard of care when coping with the problem. This would probably have been satisfied by denying access to the workshop by pulling down the roller doors or putting a barrier in place in addition to a sign.

By taking the call he appears to have breached this duty and to be liable for Nancys injuries, which arise directly from the breach. See Australian Safeway Stores v Zalzuna (1987).

(ii) Nancys daughter, who was a very nervous person, was walking behind her mother. She became very upset when she saw her mother fall because she knew that serious damage could result.

Talbot appears to owe the daughter a duty of care. It was reasonably foreseeable that the mother could have fallen and that a relative who had witnessed the accident would have become upset. Also, on the basis of Jaensch v Coffey (1984) there appears to be a causal proximity between Talbots conduct and the daughters injury. Talbot breached this duty by leaving the oil spill. However, it is not clear that the damages flow directly from the breach. The daughter must prove she suffered specific damages being upset would be insufficient. She would have to cite losses such as medical costs and time off work and show these stemmed from witnessing the accident. If she is successful the eggshell skull rule applies. Talbots liability is not reduced because his victim is abnormally sensitive to an upsetting experience.

(iii) Talbot wrote out a sign in very large bright letters which said Warningslippery floor. Do not enter and fixed it to the side of the workshop entrance. Connor, a customer with very poor eyesight, missed the sign, strode in, slipped and broke his leg.

Talbot appears to be liable. It is reasonably foreseeable that a person with a disability such as poor eyesight could enter and miss the sign. A passerby of this nature could enter, for example, to ask directions. See Hayley v London Electricity Board (1965). Talbot would have to prove that the sign satisfied a reasonable standard of care.

(iv) Connor screamed loudly after his fall. This caused a customer who was filling his tank at the self-serve pump to spin round involuntarily and spray petrol into the eyes of another customer, who ran in shock down the driveway of Talbots garage. The driver of a Porsche who was entering the driveway swung his wheel to avoid the customer and crashed into a brick wall, causing more than $15,000 damage to his car.

It is unlikely that Talbot is liable. The damages appear too remote. The losses suffered by the customer and the Porsche owner pass the but for test yet apparently fail the reasonably foreseeable test. See Overseas Tankship (UK) Ltd. v Morts Dock & Engineering Co Ltd (The Wagon Mound No 1 Case) (1961).

(v) Immediately after the spill, Talbot walked outside, pulled down the shutters of the workshop and went for a coffee. A 15-year-old girl and a 14-year-old boy who live behind the garage often sneak into the workshop when Talbot is out and chase each other around. Talbot had previously threatened to charge them with trespass. They sneak in through the unlocked back door and begin to chase each other. The boy slips and crashed into the shutters. He breaks his jaw and suffers possible long-term brain damage.

Talbot is probably liable. Occupiers of premises owe a duty of care to persons who enter them, including trespassers. See Hackshaw v Shaw (1984). It was reasonably foreseeable that juvenile trespassers would sneak into the workshop and slip on the oily floor. The broken jaw and brain damage flowed directly from Talbots breach. Talbot may reduce his damages by proving that the injured juvenile is liable for contributory negligence.