NEGLIGENCE

Donoghue v Stevenson foundation case for

negligence. Use for highlighting neighbours
test

Elements for case in negligence

Duty of care:
Donoghue v Stevenson responsibility to take

reasonable care to avoid acts or omissions

which could be reasonably foreseen to cause
injury to your neighbour. neighbours test
people so closely and directly affected by the
actions that the person would have had in mind
when considering those actions.

Manufacturer to consumers
Grant

v Australian Knitting Mills

Manufacturer to innocent bystanders
Not necessary for exact and precise injury to be
foreseeable, sufficient that the type of injury is
foreseeable. Injury must not be far-fetched or
fanciful
Distributor of products
Watson v Buckly, Osbornem Garnett & Co Ltd;
Hardchrome Engineering P/L v Kambrook Distributing
P/L distributors still responsible for products
distributed/ retailed but did not manufacture

Duty of care pure economic lossDuty of care

psychological harm
Tame v New South Wales not liable for causing
psychological harm save in exceptional circumstances.
Duty to protect from emotional disturbance and possible
psychiatric illness was not compatible with a police
officers duties. Not reasonably foreseeable that Pt would
suffer a psychiatric illness from a clerical error

Pts in both cases clearly suffered economic loss due

to Dts negligence
Jaensch v Coffey plaintiff must have directly perceived

a distressing phenomenon or its immediate aftermath

Standard of care did defendant failed to

exercise proper standard of care?

Apply balance test of Wyong Shire Council v Shirt

likelihood of risk of danger; seriousness of harm, cost of

precautions, common practice, difficulty and inconvenience of
taking precautions, in conflict with other duties?
Romeo v Conservation Commission of the Northern Territory
majority of the court found that danger was so obvious that
Dt. Had no duty to provide warning of presence of said
danger. However, minority of court argued that having
provided access and facilities leading to the danger, duty was
still present regardless of whether the danger was probable/
obvious or otherwise. (since a reasonable person would not
disregard the danger)

Causation, remoteness, amount of damages

Palace Pty Ltd v Moubarak but-for test. Would
the injury/ damage occur had Dt took reasonable steps
and care to prevent its occurrence?
March v Stramare Pty Ltd the chain of causation is not
broken by a new act (whether negligent or otherwise) and
cannot be terminated (if the risk of injury is plainly
foreseeable)
Chapel v Hart even when there is no negligent action in
providing the actual service, Dt can still be held liable for
negligently providing advice
Adeels

Remoteness: Overseas Tankship (UK) Ltd v

The Miller Steamship Co Pty Ltd (The Wagon

Mound (No 2)) was the type of harm and the
way it occurred reasonably foreseeable?

Losses must not be too remote, damages

must also have been reasonably

foreseeable
RES IPSA LOQITOR-the situation speaks for
itself
-Mahon v Osborne

Defences applicable
Contributory negligence: March v Stramare Pty Ltd
Did

Pt show a lack of care for his own safety?

Did such conduct materially contributed to the occurrence of the
accident?
Moore v Woodforth lack of care for own safety
did the person who suffered the harm had also been negligent in failing to
take reasonable precautionary steps against the known harm?
If proven, amounts to partial defence, apportionment of payable damages
Volenti non fit injura

Commissioner v Joyce if this defence can be established,

amounts to full defence and not liable for any liability
Prove that P knew of danger; P appreciated risk of injury, P voluntarily
agreed to accept the risk
Insurance

FRAUDULENT
MISREPRESENTATION
Did the defendant make a false representation of fact:
Smith v Land and House Property Corporation Bowen LJ: when the

facts are not equally known to both sides, a statement of opinion by

one who knows the facts best involves often a statement of a
material fact, for he impliedly states he knows facts which justify his
opinion
Silence as a statement of fact
Re Hoffman; Ex parte Worrell v Schilling withholding part of the
information by giving a literally true statement yet conveying
another meaning is misrepresentation
Lockhart v Osman failing to mention facts that were altered prior
to occurrence of event is misrepresentation
Karowski v Eurolynx Properties Ltd silence amounts to
misrepresentation when a reasonable representee would consider it
to be so

Did the representation induce the

plaintiff to act in some way

Holmes v Jones must rely on the

misrepresentation, not other sources for action

Gould v Vaggelas; Gipps v Gipps it is not a
defence to fraud to argue that plaintiff would
have known of misrepresentation had he
exercised reasonable care/ diligence

Did the representor know the

misrepresentation was false
1.Derry v Peek D must have intended the
false representation/ been reckless as to its
truth. To constitute fraud, there must be more
than negligence
Did the misrepresentation cause the
plaintiff to suffer a loss
1.Boyd v Glasgow Railway a causal
connection between the fraud and the loss
must be established for P to claim for
compensation

NEGLIGENT MISREPRESENTATION
PART OF THE TORT OF NEGLIGENCE, NOT FRAUD
Did the defendant owe a duty of care to plaintiff
Hedley Byrne & Co Ltd v Heller & Partners Ltd negligence

applies to both words and actions

MLC v Evatt doctrine of negligent misrepresentation applies to
giving of advice.
Steps to prove for existence of duty of care (dicta of
Mason J, MLC v Evatt)

Conjunctive conditions prove ALL 4

Advice/ info given on a serious matter D being trusted to give

accurate info due to special knowledge/ expertise

Sebastien Pty Ltd v The Minister responsible although advice was
given voluntarily

San

L Shaddock and Associates Pty Ltd v Parramatta City

Council doctrine applies to supply of information

reasonably knew that P will follow/ act based on given

advice
Pty Ltd v Water Board not reasonable to rely on P for
rough estimate, not aware information was being used for such
important decisions, had own experts to advice on (should have
consulted them)
Esso Petroleum Co Ltd v Mardon pre-contractual negotiations
may amount to negligent misrepresentation
For professionals, page 107 (bottom)
Tepko

Reliance

by P without further inquiry must be reasonable

Ho Ma Pty Ltd v Allen reliance on out dated information is not

reasonable

Ta

Remoteness + causation of damage

The Wagon Mound (remoteness)
Kenny & Good Pty Ltd v MGCIA but-for test/ March

v Stramare + Chapel v Hart

Pyrenees Shire Council v Day clearly knew about the
presence of the risk of danger and failed to take up
adequate response

Defences: volenti + contributory negligence

Remedies: pecuniary lossees (can be estimated)

+ non-pecuniary (cannot be estimated). NO

PHYSICAL DAMAGE CLAIMS

NEGLIGENCE-TUTORIALS
Explain the relevance of Donogue v

Stevenson
Highlight the elements of Negligence
Explain the term Res Ipsa Loqitor
Explain the term Contributory Negligence
Explain the term Novus Actus Interveniens
Negligent Missrepresentation-explain
Higlight the elements of N Missrepresentation
What are the different types of
Missrepresentation ?
What the remedies of the N