Torts law final exam notes
Systematic approach
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2.
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6.
Duty of Care
Breach of Duty of care
Damage
Caused by the breach (causation)
Defences
Remedies (Assessment of damages)
Duty of Care
Chapter 7: Approaching Duty of Care
Tort of negligence is known as the duty of care. Negligence denotes a defined tort with three clearly outlined
elements comprising the cause of action:
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D must have owed the P a duty of care
Duty must be breached
Breach must have caused damage to P
The duty of care operates to define the scope and substance of negligence law. It addresses the major
questions of what it is that we regard as behaviour for which a P should be compensated. Because the
concepts making up the duty of care define the scope of negligence, the issues within the duty of care
resonate through the whole cause of action. Breach and causation are prevented by the duty of care concepts
in determining what is regarded as responsible and irresponsible behaviour. P has to prove:
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D owes a duty of care to P or a person in the class to which P belongs
D breached that duty
D’s breach of duty caused the harm that the P suffered
Donoghue v Stevenson- Appellant sought to recover damages from the respondent, who was a manufacturer,
for injuries she suffered as a result of consuming part of the contents of a bottle of ginger beer which had been
manufactured by the respondent, who contained the decomposed remains of a snail. After consuming it, she
suffered from shock and severe gastro-enteritis. Courts held there was a duty arose under a contract that
could be no separate duty to the P. The neighbour test of loving your neighbour and taking reasonable care to
avoid acts or omissions which you can reasonable foresee would be likely to injure your neighbour.
Heaven v Pender- Founded upon a principle that a duty to take care did arise when the person or property of
one was in such proximity to the person or property of another that, if due care was not taken, damage might
be done by the one to the other.
Grant v AKM- Appellant bought underpants from a retailer who had purchased them from Aus Knitting Mills.
He wore them for one day and started to get itchy so he changed them for another pair. He developed
dermatitis so severe that he had to spend 17 weeks in hospital. The conclusion means that the disease
contracted, and the damage suffered by the appellant were caused by the defective condition of the garments
which retailers sold to him and which manufacturers made and put forth for retail and indiscriminate sale.
Justice gave judgement on both respondents, against retailers on the contract of sale and against the
manufacturers in tort, on the basis of the decision of Donoghue v Stevenson.
The development of duty of care
Pure eco loss was had been regarded as the domain contract and there was said to be a bright line rule
preventing the use of negligence for pure eco loss.
Hedley Byrne & Co v Heller & Partners Ltd- the Ps had placed some small orders and placed more orders on
credit for advertising space on behalf of a customer called Easipower. They became uneasy about financial
position and sought a banker’s report through their own bank, the National Provincial Bank Ltd. Ds were
merchant bankers who gave advice to Ps Headley Byrne and Co. Advice was confirmed in writing by Ds. Few
months later, Ps again asked for advice surrounding $100,000 per annum on advertising and Ds said
“considered good”, but Ps lost lots of money and went into liquidation. Judge held Ds were negligent but
owned no duty to the P and held there was no duty of care.
Proximity as principle- The requirement of proximity is directed to the relationship between the parties in so
far as it is relevant to the allegedly negligent act or omission of the D and the loss or injury sustained by P. It
involved the notion of nearness or closeness and embraces physical proximity between person or property of
P and the person or property of D, circumstantial proximity such as overriding relationship of employer and
employee r of a professional man and his client and what may be referred to as casual proximity in the sense
of closeness and directness of the casual connection or relationship. The focus of this approach was to
consider reasonable foreseeability and then proximity, which involved considering the concepts of
relationships and responsibility first and only later considering which category of case was at issue.
Caparo Industries Plc v Dickman- The test established had 3 stages. The first stage asks whether the harm was
reasonably foreseeable, the second stage for proximity of relationship and the third asks whether it is fair and
reasonable to impose a duty in the circumstances.
Salient factors approach
Since reasonable foreseeability of harm is a relatively weak test, the court uses the salient factor approach to
determine whether or not duty of case arises. Salient factor test may be used both within a category or when
the case is novel. In both cases salient factors may include matters such as the level of vulnerability of the P
compared with the power with the power or control of the D in the situation, level of reliance compared with
the power or control of the D in the situation, level of reliance of the P on D, kind of knowledge involved and
so on. The salient features include the foreseeability of harm, the nature of the harm alleged, the degree and
nature of control able to be exercised by the D to avoid harm, the degree of vulnerability of the P to harm from
the D’s conduct including the capacity and reasonable expectation of a P to take steps to protect itself, degree
of reliance by the P upon D, any assumption of responsibility by the D, proximity or nearness in a physical,
temporal or relational sense of the P to the D.
Perre v Apand- the Perre brothers own land in SA were they grew potatoes. They exported potatoes to WA.
WA had a regulation prohibiting the importation of potatoes grown on land affected by the disease bacterial
wilt, and also potatoes grown on land within a certain distance of affected land. B supplying infected seeds,
the respondents Apand negligently introduced bacterial wilt into Sparnon’s land which was off relevant
distance to Perre’s land. It thus became impossible for Perre to export to WA, and sustained pure eco loss. The
result is that at the time of the supply of the seed to the Sparnons, Apand knew or ought to have known that
Warruga, were they grew and possessed potatoes, grew potatoes within 20km buffer zone and knew the
special requirements of the WA law with respect to importation of potatoes grown in adjoining areas to those
where there was an outbreak of the disease. Apand was aware not only of the threat of the wilt but also to the
presence of the disease in that area. Judge held Warruga Farms could be distinguished from other interests
and that the duty only arose in relation to Warruga Farms.
Establishing Categories of Duty
Determining the approach to take in accepted categories
Factors which may affect the approach to the duty of care include:
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Whether an act or omission is involved, if an act the kind of act for example words or physical acts
What kind of harm has been caused (personal injury, psychiatric harm, property damage, pure eco
loss, etc)
Who the D is- an individual, public authority, a manufacturer, etc
In some cases who P is- child at school, a patient, or a third party to some other relationship