What is Negligence?

It is the neglect of a legal duty

Negligence is the product of these elements:

o The existence of a duty of care
o Some breach of that duty
o Some damage (actual damage) resulting from that breach
o Causation

Early formulations of negligence

Complete recognition of the status of negligence as a separate tort arrived in 1932 in the House of Lord’s decision in Donoghue v Stevenson - plaintiff must demonstrate the existence of a duty of care owed by the defendant to the plaintiff.

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 - Heaven v Pender per Brett

* Negligence is "a moral duty that should be converted into a legal obligation" - Derry v Peek per Lord Herschell

* The duty of care is the obligation to avoid acts or omissions which are reasonably foreseeable to cause damage to another.

* One owes a duty of care whenever one is engaged in an act which he or she can reasonably foresee would be likely to injure another person; one owes a duty of care to that other person.

Donoghue v Stevenson - foundation of Duty of Care

Facts: P, a shop assistance, drank a bottle of ginger beer manufactured by the respondent which a fried had purchased for her in a café. The bottle was made of dark opaque glass and P had no reason to suspect that it contained anything but ginger beer. While the friend was topping up P’s glass, a snail floated out in state of decomposition. In consequence of the nauseating sight of the impurities of the ginger beer which had already been consumed, P suffered severe shock and gastro-enteritis and claimed for damages. P alleged it was the duty of D to provide a system of working his system to prevent snails getting in the bottles and provide an efficient system of inspecting the bottles before the ginger beer was filled into them and that D had failed both these duties and so caused that accident.

Held (by majority): The manufacturer of an article of food, medicine or the like sold by him in the circumstances which prevent the distributor or the ultimate purchaser from discovering by inspection any defect, is under a legal duty to the ultimate purchaser or consumer to take reasonable care that that article is free from defect likely to cause injury to health. In this case the manufacture owed a duty of care to P and was liable for damages. Such a duty is owed not withstanding there was no contractual relationship between the manufacturer and the consumer. Per Lord Atkin: ‘The rule that you are to 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 car to avoid acts or omissions which you can unreasonably see 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 to have them In my contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question’.

Negligence: The Early Cases

Heaven v. Pender (1883) - (Defective equipment supplied to plaintiff painter).

Facts: D owned a dock - under the contract - a ‘platform’ was thrown over and suspended by ropes - P was a painter who was employed by the D to paint the side of the ships - was suspended on said platform - P was injured after the ropes gave way - investigation found that ropes were scorched prior to being purchased by the D - majority view found in favour of the P based on some contractual point - LJ was in the minority view.
Held: The dicta of Brett MR: 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.

Le Lievre v. Gould (1893) - case of negligent misstatement - (Surveyor-incorrect certificates-mortgage payments-losses)
Held: MR Brett said “if the person is near to another or is near to the property of another a duty lies upon him not to do that which may cause a personal injury to that other or may injure his property…”

Donoghue v. Stevenson

Facts: Ginger beer-decomposing snail-P has shockgastroenteritis - No privity of contract between P and D - Issue was whether D owed P a duty

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. 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.

Grant v Australian Knitting Mills (1936) - The application of the rule in D v S

Facts: 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.

P bought 2 pairs of undies and 2 singlets - made out of golden fleece in an Adelaide shop - so happy with purchase on the first evening he put on his long-johns - after a day he started feeling itchy - being a doctor he didn’t change his undies - he wore them for a week straight - didn’t wash - just put on the second pair straight away - after three months continuous use he developed an acute rash - had to be hospitalized - after he was treated he sued the shop and the manufacturer - evidence revealed that the redness was due to the sulphur content in the underwear - went all the way to the privy council - privy council applied the rule in Donoghue v Stevenson.

Negligence: The Duty of Care
5A Application of Part

(1) This Part applies to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise.

(2) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B.

5B General principles

(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.

(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.

D v S Lord MacMillan - refers to the duty of care as a “cardinal principle” of negligence and (at 618) highlights the fact that: “The law takes no cognisance of negligence in the abstract. It concerns itself with carelessness only where there is a duty to care and where failure in that duty has caused damage”.

“you must take reasonable care to avoid acts or omissions…”

Acts in the sense that you can be driving and it’s a positive act that you hit a pedestrian but not intentional because you might not have been paying attention

Omissions in the sense that a doctor giving someone medical treatment - may have explained something in an x-ray that they had fractured a bone but omitted that another shadow in the x-ray was a form of cancer - so he omitted that information

• Whenever one is engaged in an act which he or she can reasonably foresee would be likely to injure another person, one owes a duty of care to that other person

The Modern Requirements for the Duty of Care

Determining Liability
5C Other principles

In proceedings relating to liability for negligence:

(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and
(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

* Duty of care is the obligation to avoid acts or omissions which are reasonably foreseeable to cause damage to another.

There are three elements:

1. A reasonable foreseeability of real risk to P either as an identifiable individual or as a member of a class of persons;
2. The existence of proximity between the parties with respect to the act or omission;
3. Absence of any rule that precludes such a duty (policy considerations)

Jaensch v Coffey - established that liability in negligence simply rests on a “public sentiment of moral wrongdoing”: Deane J

Facts: P had an unhappy childhood and youth - only found security when she married a policeman - few months after the birth of her child - she was at home with the child - two police came over to her house and told her that her husband had been in a terrible motor vehicle accident (due to the negligent driving of the D) - P then goes to the hospital and her husband undergoes 2 operations - then told that her husband is recovering - so go home - next morning at 5:30am gets a call saying her husband is in intensive care - at 8:30am she is summoned in to the hospital - sees “all these tubes” coming out of her husband in the hospital bed - the consensus of opinion at the time was that her husband was going to die - however took 3-4 weeks for them to realize that he was going to live - however as a result of that she received psychological problems that manifested into physical (genealogical) problems and she required a hysterectomy - so caused damage -Read this case - very important case

Reasonable Foreseeability

Reasonable foreseeability is tested using an objective "reasonable person" standard.

* The reasonable person is the embodiment of community values and what the community expects of a responsible citizen.
* We evaluate D's conduct not from his or her particular position, but from that of a reasonable person similarly placed.
* The reasonable foreseeability test is not erroneous and is not sufficient to found liability on its own: Sullivan v Moody (2001)

Reasonable Foreseeability: Case Law

Rylands v Fletcher (1868) - where physical injuries result from physical contact, P need only demonstrate that the injuries are reasonably foreseeable

Nova Mink v Trans Canada Airlines [1951] (Air traffic noise causing minks to eat their young ones-No foreseeability) - held not foreseeable that air traffic noise causing mink’s (lil animals) to eat their young offspring

Palsgraf v. Long Island R.R. Co. (1928) - (Railway guards helping falling passenger fireworks explosion causing injury to plaintiff - No foreseeability) railway guard assisting passenger into carriage - accidentally dislodged a package - when the package hit the ground (it had fireworks in it) it exploded and shot all the way down the other end of the platform - striking a set of scales on the platform - the scales then struck the plaintiff - reasonably foreseeable? No!

The Scope of Reasonable Foreseeability

Chapman v Hearse (1961) - "events don't need to be reasonably foreseeable"

Facts: Dr Cherry stopped to render assistance to Chapman who had been thrown unconscious onto a roadway following a collision between Chapman’s car and another vehicle. Hearse, who was travelling in the same direction as Chapman had been, negligently ran down and killed Dr Cherry. By a third party notice, Hearse claimed contribution by Chapman, alleging Chapman was also in breach of a duty of care owed to Dr. Cherry.

Held: To determine the existence of a duty of care it is sufficient in the circumstances of this case to ask whether a consequence of the same general character as that which followed was reasonably foreseeable  as one not likely to follow a collision between two vehicles on a clod wet night upon a busy highway. What is important to consider is whether a reasonable man would foresee, as a consequence of such a collision, the attendance on the roadway, at some risk to themselves, of persons fulfilling a moral and social duty to render aid to those otherwise incapacitated or otherwise injured. To establish the existence of the duty of care it is not only to show that injury to a class of persons to which the plaintiff was one might reasonably have foreseen as a consequence. Such an event has occurred herein was indeed ‘reasonably foreseeable’ and the intervening negligent acts of the hearse do not preclude the conclusion that the earlier act of Chapman’s negligence was a ‘proximate’ cause.

United Novelty Co v Daniels (1949) (Workers cleaning coin operated machine with flammable substance-rat in machine runs into fire place causing fire damage and death-Foreseeability upheld)

Jaensch v Coffey (1984) (Car accident-spouse goes to hospital to see injured partner-suffers shock from what she sees and hears of husband’s condition action against D who caused accident-Proximity-Duty)

Reasonable Foreseeability: Established category of Duty of Care

Koehler -v- Cerebos (Australia) Limited [2005]

Issue: “The central inquiry remains whether, in all the circumstances, the risk of a plaintiff … sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far fetched or fanciful” [33]
Held:“The duty which an employer owes is to each employee. The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable”

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