Particular Duty Areas in Negligence
Products Liability
The manufacturer of a product is liable to the ultimate consumer for any negligence in relation to that product, if the product remains unchanged after it leaves their custody.
Common Law
Donogue v Stephenson [1932] - Manufacturer liability in negligence for defective product.
The facts: This was the famous case where the plaintiff was treated to a bottle of ginger beer by her boy friend in a Glasgow café. The beer was in an opaque bottle. After the plaintiff had consumed half of the beverage, when pouring a second glass a decomposed snail emerged from the bottle. As a result the plaintiff suffered gastro-enteritis and brought an action in negligence.
The Decision: Lord Atkins stated “The rule that you must love your neighbour becomes, in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour ? Receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”
He then continued to define of neighbour in the following terms: “persons 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”
In relation to products towards customers, Lord Atkins said: “Knowledge that the absence of reasonable care in the preparation of putting up of the products will result in injury to the customer’s life or property, owes a duty to the customer to take that reasonable care”
Grant v Australian Knitting Mills [1936] - Manufacturer liability in negligence for defective product.
The Facts: Sulphites found in manufactured underwear.
Relevant Statutes
*(REFER TO LEGISLATION FILES FOR COMPLETE SECTIONS)
These rights are now substantially affected by statutes providing consumer protection both in tort and in contract law.
Sale of Goods Act 1923 (NSW)
Pt 4 Performance of the Contract (ss.30 to 40)
Pt 5 Rights of the Unpaid Seller Against the Goods ss.41 to 50)
Pt 6 Actions for Breach of the Contract (ss.51 to 56)
Fair Trading Act (NSW) - Important in NSW as it deals with suing of individuals.
Pt 4 Consumer Protection (ss.38 to 40)
Pt 5 Fair Trading (ss.41 to 60, including s.42 Misleading or deceptive conduct and s.44 False representations)
Trade Practices Act 1974 (Cth) - Deals with Corporations.
Pt V Div 1 Consumer Protection (ss.51AF to 65A, including s.52 Misleading and deceptive conduct)
Pt V Div 2A Actions against manufacturers and importers of goods (ss.74A to 74L)
Pt VA Liability of manufacturers and importers for defective goods
Defective Structures
Professional Negligence:
S5O Civil Liability Act 2002
Civil Liability Act 2002
Professional negligence is substantially affected by the Civil Liability Act. In particular, it applies the test of whether the defendant was acting in accordance with accepted professional opinion.
SECT 5O Standard of care for professionals - “Peer professional opinion” (ie. The UK “Bolam” test)
(1) A person practising a profession (“a professional") does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.
(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.
(3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.
(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.
Bolam Case - Conformity with the professional standard of care was enough to satisfy the practitioner’s obligation.
The standard of care requires, as McNair J said “A doctor is not guilty of negligence if he acted in accordance with a practice accepted as proper by a responsible body of medical mean skilled in that particular art….”
Professionals do however retain a duty to warn of risks - CLA S5P
SECT 5P Division does not apply to duty to warn of risk - “Duty to warn” remains
This Division does not apply to liability arising in connection with the giving of (or the failure to give) a warning, advice or other information in respect of the risk of death of or injury to a person associated with the provision by a professional of a professional service.
Roger v Whitaker - Duty of professionals to warn of risk
The Facts: Mes Whitaker had a problem in one eye and the other eye was good. She was concerned that if he operated on the bad eye it could ruin the good eye. She had a condition that if the bad eye was operated on, there was a 1 to 14000 chance that her good eye would become bad too. Dr. did not warn her of this risk.
The Decision: High court stated no matter how slight the risk was, you failed to warn your patient…so you had a duty to warn.
“a risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned would be likely yo attach significance to it, or if the medical practitioner is or should be reasonably be aware that the patient, if warned of the risk, would be likely yo attach significance to it”
Builders:
Bryan v Maloney (1995) - Builders have a duty to future owners of a defectively built structure, not just to the initial purchaser.
The facts: A Builder built a house for the initial owner, which had footing defects. A subsequent owner brought the house and the structure failed due to the defect.
The Decision: It was held by the High Court that a builder owed a duty of care to the second purchaser of a house he had constructed previously.
The relationship of proximity was found in the continued existence of the house, which the defendant ought to have known to be likely to cause economic loss to a subsequent purchaser if not properly constructed
Architects:
Voli v Inglewood Shire Council (1963) - Architects have an ongoing duty to users of a defectively-designed structure
The Facts: A stage at a conference collapsed because the joists supporting the floor’ were not, having regard to the span, strong enough.’ The plaintiff sitting on the stage was injured. The collapse was due to a design error and accordingly the design architect was held liable for negligence
The Decision: Justice Windeyer of the High Court stated that an architect must possess the ‘skill that is usual among architects practising their profession.’ There was no need for the architect to have exceptional skills.
Councils & Statutory Authorities:
Councils and statutory authorities have a duty not to be professionally negligent in the performance of their duties and in the issue of advice. However the CLA has substantially reduced the scope of their liability as noted earlier. Seen Below:
CLA
42 Principles concerning resources, responsibilities etc of public or other authorities
The following principles apply in determining whether a public or other authority has a duty of care or has breached a duty of care in proceedings for civil liability to which this Part applies:
(a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions,
(b) the general allocation of those resources by the authority is not open to challenge,
(c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate),
(d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate.
43 Proceedings against public or other authorities based on breach of statutory duty
(1) This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a breach of a statutory duty by a public or other authority in connection with the exercise of or a failure to exercise a function of the authority.
(2) For the purposes of any such proceedings, an act or omission of the authority does not constitute a breach of statutory duty unless the act or omission was in the circumstances so unreasonable that no authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions.
(3) In the case of a function of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44.
43A Proceedings against public or other authorities for the exercise of special statutory powers
(1) This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a public or other authority’s exercise of, or failure to exercise, a special statutory power conferred on the authority.
(2) A "special statutory power" is a power:
(a) that is conferred by or under a statute, and
(b) that is of a kind that persons generally are not authorised to exercise without specific statutory authority.
(3) For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.
(4) In the case of a special statutory power of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44.
44 When public or other authority not liable for failure to exercise regulatory functions
(1) A public or other authority is not liable in proceedings for civil liability to which this Part applies to the extent that the liability is based on the failure of the authority to exercise or to consider exercising any function of the authority to prohibit or regulate an activity if the authority could not have been required to exercise the function in proceedings instituted by the plaintiff.
(2) Without limiting what constitutes a function to regulate an activity for the purposes of this section, a function to issue a licence, permit or other authority in respect of an activity, or to register or otherwise authorise a person in connection with an activity, constitutes a function to regulate the activity.
45 Special non-feasance protection for roads authorities
(1) A roads authority is not liable in proceedings for civil liability to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm.
(2) This section does not operate:
(a) to create a duty of care in respect of a risk merely because a roads authority has actual knowledge of the risk, or
(b) to affect any standard of care that would otherwise be applicable in respect of a risk.
(3) In this section:
"carry out road work" means carry out any activity in connection with the construction, erection, installation, maintenance, inspection, repair, removal or replacement of a road work within the meaning of the Roads Act 1993 .
"roads authority" has the same meaning as in the Roads Act 1993 .
[satisfies s45 + s45(3)]
Porter v Lachlan [2006] - (Lachlan Shire Council)
Facts: Appealand suffered fructured ankle when accidently put his foot in a hole in a nature strip, between footpath and gutter.
Held: Hodgson JA, "in my opinion this case comes in s45 on two basis.
1) The allegation would be that respondent failed to maintain roadwork, they looked to see if nature strip came within the definition of Road Work - YES!
2) Respondent failed to construct road work - s45(3) CLA these would extend the works of construct and install to fix roadwork.
46 Exercise of function or decision to exercise does not create duty
In proceedings to which this Part applies, the fact that a public or other authority exercises or decides to exercise a function does not of itself indicate that the authority is under a duty to exercise the function or that the function should be exercised in particular circumstances or in a particular way.
Common Law:
Heyman v Sutherland Shire Council (1985) - Council owed no duty of care in relation to the exercise of its statutory powers.
The Facts: There the council approved the plans but had no specific obligation to inspect the footings before the foundations were poured. There was a failure and the plaintiff was the present owner of the building
The Decision: The court held that since the council had a discretion, as to which buildings were to be inspected, it was not negligence to exercise the discretion in a particular way. Had the council inspected and failed to detect the problem or had it been under an obligation to inspect but failed to do so it would have been liable.
Shaddock v Parramatta CC [No.1] (1981) - Duty owed by council in giving information on serious business matters.
The facts: The plaintiff had applied to the council for a certificate as to the possible widening of a road, which would affect a property the plaintiff proposed to buy. The plaintiff’s agent telephoned the council to be informed that the land was not affected and this was later confirmed by an official certificate from the council.
The Decision: The written information however rendered the council liable because it knew that the plaintiff was likely to act on the basis of the information, it was the sole repository of the information and failure to provide it would mean that enquirers would need to undertake extensive searches of council records.
Parramatta CC v Lutz (1988)
The Facts: Plaintiffs complained to council about a vacant house next to hers. She complained that if a fire broke out it could be a risk to her property. Council served a notice to the owners of that house that if the problem wasn’t rectified in 60 days, the council will intervene. 60 days passed and council did not intervene, a fire broke out and the plaintiff’s house was destroyed.
The Decision: The council was held liable in negligence to the plaintiff. The courts held that the council was negligent in the exercise of statutory powers and the basis of the plaintiff’s detrimental reliance of the council. In other words, the council had moved from the discretionary into the operational area.
However following the decision of the high court in Brodie v Singleton Shire Council it is seen in Ghantous v Hawkesbury City Council (2001) - High Court abolished the highway immunity for non-feasance (Failure to perform some act which should have been performed.) - CLA s45.
The Facts: A claim for negligence where it was sought to impose liability on a highway authority for the injury or damage caused by the defective state of the highway.
The decision from both cases: As part of the CLA reforms of the law of negligence, have restricted the liability of authorities for a failure to carry out roadwork unless they had actual knowledge of the facts creating the risk. - CLA s45.
Nervous Shock
What is nervous shock?
– An identifiable mental injury recognised in medical terms as a genuine psychiatric illness.
– The sudden sensory perception that, by seeing hearing or touching – of a person, thing or event, which is so distressing that the perception of the phenomenon affronts or insults the plaintiff’s mind and causes a recognizable psychiatric illness
It is a question of fact whether it is reasonably foreseeable that the sudden perception of that phenomenon might induce psychiatric.
Nervous shock requires an identifiable mental illness, plus a shock (a sudden sensory perception) which has so affronted the mind that is causes the mental harm.
Continued on page 2
continued
Civil Liability Act - Part 3 – Mental harm
27 Definitions
In this Part:
"consequential mental harm" means mental harm that is a consequence of a personal injury of any other kind.
"mental harm" means impairment of a person's mental condition.
"negligence" means failure to exercise reasonable care and skill.
"personal injury" includes:
(a) pre-natal injury, and
(b) impairment of a person's physical or mental condition, and
(c) disease.
"pure mental harm" means mental harm other than consequential mental harm.
28 Application of Part
(1)
This Part (except section 29) applies to any claim for damages for
mental harm resulting from negligence, regardless of whether the claim
is brought in tort, in contract, under statute or otherwise.
(2) Section 29 applies to a claim for damages in any civil proceedings.
(3) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B.
29 Personal injury arising from mental or nervous shock
In
any action for personal injury, the plaintiff is not prevented from
recovering damages merely because the personal injury arose wholly or
in part from mental or nervous shock.
30 Limitation on recovery for pure mental harm arising from shock
(1)
This section applies to the liability of a person ("the defendant") for
pure mental harm to a person ("the plaintiff") arising wholly or partly
from mental or nervous shock in connection with another person ("the
victim") being killed, injured or put in peril by the act or omission
of the defendant.
(2) The plaintiff is not entitled to recover damages for pure mental harm unless:
(a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or
(b) the plaintiff is a close member of the family of the victim.
(3)
Any damages to be awarded to the plaintiff for pure mental harm are to
be reduced in the same proportion as any reduction in the damages that
may be recovered from the defendant by or through the victim on the
basis of the contributory negligence of the victim.
(4) No
damages are to be awarded to the plaintiff for pure mental harm if the
recovery of damages from the defendant by or through the victim in
respect of the act or omission would be prevented by any provision of
this Act or any other written or unwritten law.
(5) In this section:"close member of the family" of a victim means:
(a) a parent of the victim or other person with parental responsibility for the victim, or
(b) the spouse or partner of the victim, or
(c) a child or stepchild of the victim or any other person for whom the victim has parental responsibility, or
(d) a brother, sister, half-brother or half-sister, or stepbrother or stepsister of the victim.
"spouse or partner" means:
(a) a husband or wife, or
(b)
the other party to a de facto relationship within the meaning of the
Property (Relationships) Act 1984, but where more than one person would
so qualify as a spouse or partner, means only the last person to so
qualify.
31 Pure mental harm--liability only for recognised psychiatric illness
There
is no liability to pay damages for pure mental harm resulting from
negligence unless the harm consists of a recognised psychiatric illness.
32 Mental harm--duty of care
(1)
A person ("the defendant") does not owe a duty of care to another
person ("the plaintiff") to take care not to cause the plaintiff mental
harm unless the defendant ought to have foreseen that a person of
normal fortitude might, in the circumstances of the case, suffer a
recognised psychiatric psychiatric illness if reasonable care were not
taken.
(2) For the purposes of the application of this section
in respect of pure mental harm, the circumstances of the case include
the following:
(a) whether or not the mental harm was suffered as the result of a sudden shock,
(b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril,
(c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril,
(d) whether or not there was a pre-existing relationship between the plaintiff and the defendant.
(3)
For the purposes of the application of this section in respect of
consequential mental harm, the circumstances of the case include the
personal injury suffered by the plaintiff.
(4) This section does
not require the court to disregard what the defendant knew or ought to
have known about the fortitude of the plaintiff.
33 Liability for economic loss for consequential mental harm
A
court cannot make an award of damages for economic loss for
consequential mental harm resulting from negligence unless the harm
consists of a recognised psychiatric illness.
Elements of Nervous Shock:
The notion of psychiatric illness induced by shock is a compound, not a simple, idea. Its elements are:
- On the one hand, psychiatric illness and,
- On the other, shock which causes it.
-
Liability in negligence for nervous shock depends upon the reasonable
foreseeability of both elements and of the causal relationship between
them
Examples: Post-Traumatic Stress Disorder & Pathological grief disorder
The Victims:
• Primary victims
What needs to be reasonably foreseeable? Some personal injury, physical or psychiatric, to the primary victim
Page v Smith [1996] - Primary victims are victims whose damage arises directly from the negligent act.
The Facts: A victim of a road accident caused by another's negligence claimed damages solely for psychiatric illness.
The
Decision: Primary victims are victims whose damage arises directly from
the negligent act. The test for reasonable foresee ability based on
hindsight rather than foresight is support by this case.
- Motor
Accidents Compensation Act 1999, s 141 bars claims to all except
primary victims as drivers, relatives or those who were present at
the scene at the time of the accident
• Secondary victims
Secondary
victims are those whose damage arises from either having a close
relationship to the victim, or viewing the negligent act as it causes
the damage to the primary victim.
1. Close Relationship - CLA s30.
Jaensch v Coffey - Damages recovered even if Plaintiff wasn’t at location of accident.
The
facts: The plaintiff was the wife of a person injured in a road
accident. She developed a psychiatric illness because of what she heard
and saw following the accident, in the hospital.
The Issue: The key
difference here is she was not present at the accident and her
experience was limited to events at the hospital.
The Decision: High
Court by unanimous decision held that she was entitled to recover
damages for this negligence. The shock to Mrs. Jaensch was clearly
foreseeable shock but a question arose as to whether reasonable foresee
ability of nervous shock was enough to establish liability.
- S.30 CLA “Close member of the family” and “spouse or partner” defined
2. Proximity/nearness to accident or aftermath
Bourhill v Young - Miscarriage by mother
The
Decision: A child born with deformities through the defendant’s
negligence would have a claim for nervous shock suffered as a result of
this.
Also, if the mother has suffered nervous shock, the courts have been
ready to compensate for a miscarriage or the birth of a child with
deformities caused by the shock.
Mount Isa Mines v Pusey - Reasonably foresee ability of illness - CLA s32.
The facts: The respondent witnesses, an employee suffering from an
electric shock due to a short circuit. He assists the employee to an
ambulance and later finds out that he had died. Suffers depression and
schizophrenic reactions.
The Decision: High court determined that the scope of liability of the appealnt must be in respect to:
* The lack of relationship between those who sustained physical injury and the respondent
* The question of the relevance of the individual characteristics of the respondent and
* Whether the particular pathological conditions needs to be foreseeable.
Courts held that the foresee ability of the condition was not causally connected to the incident - CLA s32
Also note the distinction between "pure" mental harm arising directly
from the negligent act, and "consequential" mental harm arising from
other forms of personal injury - Civil Liability Act 2002 s.27
Hotelier/Publican to Intoxicated Patron
***IMPORTANT as maybe is in exam***
Duty of care arise when an issue of non-feasance (Failing to act) is
imposed on an Hotelier(Occupier) and a drunken patron. Positive duties
of care to act may be imposed where the defendant is in a pre-existing
“protective” relationship with the plaintiff. This is seen in,
South Tweed Heads Rugby League Football Club Limited v Cole & 1 Or
[2002] - Portrays the courts willingness not to protect those who
failed to take reasonable care of themselves.
The Facts: On the evening of 26 June 1994, Ms Cole was seriously
injured when struck by a motor vehicle driven by Mrs Lawrence. Ms Cole
had been drinking at the Club’s premises and had consumed a large
quantity of alcohol throughout the day.
• Ms Cole arrived at the Club at around 9.30am and attended a
"champagne" breakfast at which free Spumante was available. When the
free supply ceased Ms Cole and a friend purchased and consumed further
bottles of Spumante. Ms Cole was refused service at the bar in the
afternoon because of her intoxicated state. Ms Cole stayed at the Club
and its surrounds for the day and was ejected between 5.30 and 6pm for
being intoxicated. The Club had offered to call a taxi for Ms Cole as
well as offering her the use of the Club bus and driver. One of the men
Ms Cole was with had told the Club manager that he would look after
her. At some time after this Ms Cole left the Club.
Mrs Lawrence's vehicle hit Ms Cole at around 6.20pm. She had been
travelling within the speed limit, it was dark and she had her lights
on low beam at the time of the accident. Mrs Lawrence's evidence was
that she had not seen Ms Cole until it was too late to avoid the
collision. Ms Cole, who was wearing black clothing, suffered serious
injuries from the accident and has continuing disabilities.
The Decision:
• Ipp JA (Santow JA & Heydon JA agreeing):
“To a person stationary at the point of impact and facing north, Mrs
Lawrence's vehicle must have been visible for at least 100 metres ...
A vehicle travelling at 70 kilometres per hour travels at 19.4 metres
per second. Therefore, the vehicle must have been visible to Ms Cole
for at least five seconds. It must also have been clearly audible. Yet
it seems that she took no avoiding action. When the impact occurred,
she was on the roadway in front of Mrs Lawrence's vehicle.
I infer that Ms Cole's grossly intoxicated state was the reason for her
omission to take precautionary measures. This could be the only
explanation for her failure, over a period of five seconds, to avoid
the oncoming vehicle. ...
Ipp JA (Santow JA & Heydon JA agreeing): - Mrs. Cole’s duty of care was sufficient.
“Ms Cole's behaviour was so outside the norm in failing to move away
from the path of Mrs Lawrence's vehicle that it becomes a matter of
total speculation in attempting to establish what she was doing shortly
before she was seen by Mrs Lawrence...
I conclude that the evidence was not capable of establishing facts
from which it could properly be inferred that Mrs Lawrence drove her
vehicle negligently. I would uphold her appeal. ”
• Duty of the Club: Ipp JA - Subjective facts of her alcohol consumption.
“...[T]he source of alcohol she acquired that afternoon is a matter of
mere speculation. There are at least three possibilities. The first is
that Club employees served alcohol to Ms Cole within the building. The
second is that she acquired alcohol from others outside the building.
The third is that she was provided with alcohol purchased for her
inside the building by friends or persons in whose company she was. In
my view, there is no reliable basis whereby a greater degree of
likelihood can be ascribed to any of the three.
Thus, in my opinion, while it was undoubtedly so that, when Ms Cole
left the Club at about 5.30 pm, she was very drunk and had been drunk
long before that time, the evidence was not capable of establishing on
a balance of probabilities that, after the 12.30 pm bottle, she
purchased alcohol from the Club or that the Club supplied alcohol to
her.
• Duty of the Club: Ipp JA
“The conclusions to which I have come are determinative of the Club's
appeal. In my view, the Club's appeal should be upheld on the ground
that it was not established that it committed a breach of the duty of
care found by Hulme J. Nevertheless, as the issues relating to the
scope of the duty of care were touched on in argument, and as the case
may be taken further, I shall express my views upon those matters and
also upon the consequences of Ms Cole refusing the Club's offer of safe
transport.”
• Extension of the duty of care?: Ipp JA:
“In my opinion, the Club owed to Ms Cole only the ordinary general duty
of care owed by an occupier to a lawful entrant. The scope of that duty
should not be enlarged to an extent that required the Club to cease
serving alcohol to Ms Cole when it knew that it was likely that she
would become intoxicated, or when she was obviously intoxicated.
In my opinion, as a general proposition, considerations of personal
responsibility, autonomy, practicality and certainty override those
factors such as foreseeability, proximity, control and vulnerability
which have persuaded some courts, in similar circumstances, to extend
the scope of the general duty of care.
• Extension of the duty?: Ipp JA (Santow JA agreeing) - If the opposite situation occurred, duty of care will be established.
“There may, however, be circumstances which bring about a different
result. For example, it may be that where a person is so intoxicated as
to be completely incapable of any rational judgment or of looking after
himself or herself, and the intoxication results from alcohol knowingly
supplied by an innkeeper to that person for consumption on the
premises, the scope of the duty of care of the innkeeper will be
extended to require reasonable steps to be taken for the protection of
the intoxicated person. But Ms Cole's case was not put on this basis
and it is not necessary to deal with the issue.”