03-Law of Torts Week 4
Negligence
NEGLIGENCE: THE CONCEPT
Negligence as Fault in Torts
Tort Liability
Fault
Intention
Strict
liability
Negligence
What is Negligence then?
Negligence: Basic Definition
• The failure to take reasonable care to
avoid causing reasonably foreseeable
injury or loss to another person
Development of the Concept:
Donoghue v Stevenson
Donoghue v. Stevenson
• Decomposing snail in ginger beer--P has
shock-gastroenteritis
• No privity of contract between P and D.
Issue was whether D owed P a duty
• Dicta of Lord Atkin:
Dicta of Lord Atkin
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? The answer
seems to be persons who are
closely and directly affected
by my act that I ought
reasonably to have them in
mind to the acts or omissions
Grant v Australian Knitting Mills
(1936)
• The application of the rule in D v S
• a manufacturer of products, which he sells in such a
form as to show that he intends them to reach the
ultimate consumer in the form in which they left him
with no reasonable possibility of intermediate
examination, and with the knowledge that the absence
of reasonable care in the preparation or putting up of
the products will result in an injury to the consumer’s
life or property, owes a duty to the consumer to take
that reasonable care
Negligence: The elements
Duty
Negligence
Breach
Damage
The Elements Explained
The Defendant owed the
Plaintiff a duty of care
They failed to take such care;
and
As a result the Plaintiff
suffered loss or damage
DUTY OF CARE
Duty of Care: Scope
What is ‘Duty
of Care’
When does
the duty arise
To whom do you
owe the duty
What is ‘Duty of Care?’
• The Duty of care is the obligation to avoid
acts or omissions which are reasonably
foreseeable to cause damage to another.
In my view, where a person
knows or ought to know that
his acts or omission may cause
the loss or impairment of legal
rights and that latter person is
in no position to protect their
rights there is a relationship
giving rise to a duty of care
( per Gaudron J Perre v
Apand [1999] HCA 36)
When does the duty Arise?
Lord Atkin:
• Whenever one person is by
circumstances placed in such a
position with regard to
another, that every one of
ordinary sense who did think
would at once recognise that if
he did not use ordinary care
and skill in his own conduct
with regard to those
circumstances he would cause
danger or injury to the person
or property of the other
(person) a duty arises to use
ordinary care and skill to
avoid such danger.
Anthony Mason: Wyong v Shirt
prima facie a duty of care arises on
the part of a defendant to a plaintiff
when there exists between them a
sufficient relationship …, such that a
reasonable man in the defendant's
position would foresee that
carelessness on his part may be
likely to cause damage to the
plaintiff
To whom do you Owe the Duty?
The Civil Liability Act 2002
General Principles:
S 5B:(1) A person is not negligent in
failing to take precautions against a risk
of harm unless:
• (a) the risk was foreseeable (that is,
it is a risk of which the person knew or
ought to have known), and
• (b) the risk was not insignificant,
and
• (c) in the circumstances, a reasonable
person in the person’s position would
have taken those precautions.
What is a Foreseeable Risk?
S5B: A ‘risk of
which the person
knew or ought to
have known’
It is actual
knowledge or the
‘foresight of a
reasonable person’
Foreseeability versus Probability
• Whereas probability is a scientific concept,
foreseeability is a matter of knowledge and
inference. For instance, no matter how likely it is
that something will occur, it is foreseeable by a
person only if that person knows or ought to
know that it might occur. (Knowledge must be
judged as at the date of the alleged negligence
and not at a later date; that is, without the
benefit of hindsight and ignoring subsequent
increases in knowledge about the risk and its
consequences). (Ipp Rep. Para 7.10)
“Not Insignificant”
• The Panel favours the phrase ‘not insignificant’ …
The phrase ‘not insignificant’ is intended to
indicate a risk that is of a higher probability than
is indicated by the phrase ‘not far fetched and
fanciful’, but not so high as might be indicated by
a phrase such as ‘a substantial risk’. The choice of
double negative is deliberate. We do not intend
the phrase to be a synonym for ‘significant’.
‘Significant’ is apt to indicate a higher degree of
probability than we intend”. (Ipp Rep 7.15)
Statements by Hon Bob Carr
• “We have adopted the approach in
the Ipp Report .... A risk has to be
not insignificant before a court
can find that it was reasonably
foreseeable. This will send a clear
message to the courts that, under
the current common law, liability
for insignificant risk is too easily
imposed. Our new formulation will
emphasise the community’s
reasonable expectation that
people should have to guard only
against risks that are a real
possibility.”
What is Reasonable Foreseeability?
• Reasonable foreseeability presupposes an objective
or a reasonable person’s standard
• The reasonable person is an embodiment of
community values and what the community expects
of a responsible citizen
• The concept allows us to evaluate D’s conduct not
from his or her peculiar position, but from that of a
reasonable person similarly placed
• Reasonable foreseeability is a question of law
The Scope of Reasonable
Foreseeability: Case Law
• Nova Mink v. Trans Canada Airlines [1951] (Air
traffic noise causing minks to eat their young onesNo foreseeability)
• United Novelty Co. v Daniels 42 So. 2nd 395 Miss
1949
• Palsgraf v. Long Island R.R. Co. (1928) (Railway
guards helping falling passenger-fireworks explosion
causing injury to plaintiff.-No foreseeability)
Chapman v. Hearse (1961)
• (Car accident-Dr.
stops to help-gets
killed by another
vehicle-action
against D who
caused initial
accidentForeseeability
upheld)
TO WHOM IS THE DUTY OWED?
EXISTING CATEGORIES THAT GIVE RISE
TO DUTY
Swift v Wearing-Smith [2016] NSWCA
38—10/03/2016
• Respondent was injured when the glass panel of a balcony
balustrade gave way due to a corroded bolt. By reference to s 5B,
the primary judge found that the number of guests in close
proximity to the balustrade made it reasonably foreseeable
that there was a risk of harm from a failure of the balustrade
and that the failure to take precautions to ensure the structural
soundness of the balustrade was a breach of the appellant’s
duty of care
• On appeal:
– Held: the risk of a failure of the balustrade due to a corroded
bolt was not reasonably foreseeable. There was no evidence
that the appellants had actual knowledge concerning a
corroded bolt nor should they have known.
Vincent v Woolworths Ltd [2016]
NSWCA 40
Vincent v Woolworths: The Facts
• Ms Christine Vincent, sustained injuries to her
back and knee when she stepped into a
shopping trolley being pushed by a customer
down an aisle in Woolworths’ supermarket at
Narooma in New South Wales. At the time she
was descending from a step ladder provided
by Woolworths for her work
• Ms Vincent lost her claim based on
negligence both at trial and on appeal
South Sydney Rugby League Club Ltd v
Gazis [2016] NSWCA 8—09/02/2016
• The respondant injured his back when moving a large empty
trolley. The primary judge found in favour of the respondent;
appellant sought to challenge that finding on appeal.
• Held: The requirement that a foreseeable risk be “not
insignificant”, for the purposes of s 5B(1)(b), engages a set of
considerations which are not at the same level of generality as
would suffice for a finding of a foreseeable risk.
• A risk that arises from the claimant’s carelessness, where
foreseeable but quite unlikely to eventuate, is unlikely to satisfy s
5B(1)(b).
• In the present case, the risk that a person would fall over if a
force either insufficient or too great were applied, or if the
person were careless in his or her grip was dismissed as
insignificant.
DUTY CATEGORIES
One owes a duty to those so
closely and directly affected
by his/her conduct that she
ought reasonably to have
them in contemplation as
being so affected when
undertaking the conduct in
question.
Examples of Established Categories
Consumers, users of products and structures
• Donoghue v Stevenson
• Grant v Australian Kitting Mills
Road users
• Bourhill v Young
Users and purchasers of premises etc.
• Australian Safeway Stores v Zaluzna
Examples of Established Categories
Rescuers
• Chapman v Hearse (1961) 106 CLR 112
School children
• Geyer v Downs (1977) 138 CLR 91
Purchasers of premises
• Bryan v Maloney (1995) 128 ALR 163
Prenatal Harm and Wrongful Birth
Prenatal
harm:
• Harm suffered by or caused to the baby while in the
mother’s womb
Wrongful
life:
• Negligent failure to provide proper diagnosis or
disclosure concerning the risk of giving birth to an
infant with genetic or congenital abnormalities. Issue
whether infant has right of action
Wrongful
birth
• Negligent failure to provide proper treatment to
prevent birth
Prenatal Harm: The Issues
Prenatal Harm: The Unborn Child
• There can be no justification for distinguishing
between the rights… of a newly born infant
returning home with his /her mother from
hospital in a bassinet hidden from view on the
back of a motor car being driven by his proud
father and of a child en ventre sa mere whose
mother is being driven by her anxious husband
to the hospital on way to the labour ward to
deliver such a child ( Per Gillard J in Watt v
Rama)
• Lynch v Lynch (1991)
Wrongful Life
• Waller v James 2002
• Harriton v Stephens
• Edwards v Blomeley
• Harriton
– born with maternal rubella. Mother had told her GP that
she thought she was pregnant, but also thought she was ill
with rubella. The pregnancy was confirmed but rubella
was excluded.
– It was common ground that in 1980 a reasonable medical
practitioner would have informed Harriton’s mother of the
risk that a foetus exposed to the rubella virus would be
born with profound disabilities.
• Waller
– His condition was as a result of his father's anti-thrombin
3 deficiency being passed on to him during the process of
IVF.
Main Issues( High Court)
• Whether the medical practitioners owed a
duty of care to the then unborn children to
provide their mothers with information upon
which the mothers could make an informed
decision about termination or conception, and
• Whether the harm suffered by the children,
having been born, was capable of
compensation within the law of negligence
The Decision of the High Court
• Crennan J,: damage claimed by the plaintiffs was not amenable to
determination by application of legal methodology:
– 'A duty of care cannot be clearly stated where the [child] can never
prove' the actual damage claimed, the essential ingredient of the tort of
negligence.'
– In this way, the High Court found that the plaintiffs were not able to
show legally recognisable damage, that is, a loss caused by an alleged
breach of duty.
– Consistent with the majority in the Court of Appeal, the High Court
majority focused on the impossibility of comparing life with nonexistence.
• The Court also found that to engage in a comparison for damages
assessment would create an 'unworkable legal fiction'.
• The majority also found that a cause of action for wrongful life
would be incompatible with common law values.
The Kirby Dissent
• The foetus was clearly in the
contemplation of the medical practitioner
and the accepted duty to take reasonable
care to avoid harm to a foetus would also
extend to encompass a duty of care in the
present circumstances.
• Most of the instances where a duty was
excluded, that finding was based on a more
global consideration of not just duty, but
causation and damage as a hole, as well as
policy issues. Such a global consideration
results in comparisons of life with disability
to non-existence and this causes the duty
argument to fail. Justice Kirby expressed a
preference that the duty be considered at a
more 'general level of abstraction'.
Unforeseeable Plaintiffs
In general
• Bourhill v Young [1943]
the duty is
AC 92
owed to only
• Levi v Colgate-Palmolive
the
foreseeable
Ltd
plaintiff and • Haley v L.E.B. [1965] AC
not abnormal
778
Plaintiffs.
Haley v L.E.B. [1965] AC 778
•
Some workmen were digging a trench in a
pavement. They went off to lunch. They had
nothing to fence of the trench so they left a
shovel and pick at one end and a punner at
the other end to warn pedestrians. The
claimant, a blind man, tripped on the
punner and fell hitting his head. As a result
of the fall he became deaf. The defendant
argued they had done all that was
necessary to warn an ordinary person of the
danger and there was no need to take extra
precautions for blind persons as it was not
foreseeable that a blind person would be
walking unaided down that street.
Held:
The defendant was in breach of duty. It was
foreseeable that a blind person might walk
down the street and they should be given
appropriate protection.
‘Qualifications’ to the Duty of Crae
• Novus Actus Interveniens: The
Concept
– Chapman v Hearse
SPECIAL DUTY CATEGORIES UNDER
THE CLA
2 Areas of Interest
Public
authorities
Mental
Harm
Public Authorities
Public Authorities
• (a) the Crown (within the meaning of the Crown Proceedings Act
1988), or
• (b) a Government department, or
• (c) a public health organisation within the meaning of the Health
Services Act 1997, or
• (d) a local council, or
• (e) any public or local authority constituted by or under an Act, or
• (e1) any person having public official functions or acting in a public
official capacity (whether or not employed as a public official), but
only in relation to the exercise of the person’s public official
functions, or
• (f) a person or body prescribed (or of a class prescribed) by the
regulations as an authority to which this Part applies (in respect of
all or specified functions), or
• (g) any person or body in respect of the exercise of public or other
functions of a class prescribed by the regulations for the purposes
of this
Public Authorities
• Roads and Maritime Services v Grant [2015]
NSWCA 138—21/05/2015
• Bathurst Regional Council (as Trustee for the
Bathurst City Council Crown Reserves Reserve
Trust) v Thompson [2012] NSWCA 340—
26/10/2012
• City of Liverpool v Turano & Anor [2008] NSWCA
270
• Porter v. Lachlan Shire Council [2006] NSWCA 126
• North Sydney Council v Roman [2007] NSWCA 27
Mental Harm
S27 CLA
• Mental harm: impairment of a person’s
mental condition.
– “consequential mental harm” means mental
harm that is a consequence of a personal injury of
any other kind.
– “pure mental harm” means mental harm other
than consequential mental harm.
Mental Harm
• Wicks v State Rail Authority of New South
Wales; Sheehan v State Rail Authority of New
South Wales [2010] HCA 22 (16 June 2010)
• Tame v NSW (2002) 211 CLR 317
• Annetts v Australian Stations Pty Ltd (2002)
211 CLR 317
Negligence: The element
BREACH OF DUTY
Section 5B The Civil Liability Act 2002
(2) In determining
whether a
reasonable
person would
have taken
precautions
against a risk of
harm, the court is
to consider the
following
(amongst other
relevant things):
• (a) the probability that the harm
would occur if care were not taken;
• (b) the likely seriousness of the
harm;
• (c) the burden of taking
precautions to avoid the risk of
harm;
• (d) the social utility of the activity
that creates the risk of harm.
“Calculus of Negligence” under 5B(2)
Probability of harm occuring if care
not taken
Likely seriousness of harm
Burden of taking precautions
Social Utility
Breach of Duty
Standard of Care
What standard of care is
owed? (Q of law)
• Standard of care owed by
the reasonable person in
the circumstances
• What would the
reasonable person do in
the D’s position
Duty breached
IF SO
Did the D’s actions fail to Was the response of the
meet that standard?
d to this reasonable?
• Was risk of injury to the • Calculus of negligence
(from s5B) AND where
P Reasonably
relevant, consider
foreseeable?
• Reasonability of
• Degree of risk
precautions
• Magnitude of harm
• Social utility
• Any relevant professional
or statutory standards
Wyong Shire Council v Shirt (1980)
146 CLR 40
• If reasonable person in defendant’s position
would have foreseen risk to the P, then:
• “... it is then for the tribunal of fact to determine
what a reasonable man would do by way of
response to the risk. The perception of the
reasonable man’s response calls
– for a consideration of the magnitude of the risk
– the degree of the probability of its occurrence, along
with the expense,
– difficulty and inconvenience of taking alleviating action
and
– any other conflicting responsibilities which the
defendant may have.
• It is only when these matters are balanced out
that the tribunal of fact can confidently assert
what is the standard of response to be ascribed
to the reasonable man placed in the
defendant’s position.”