Published on 18/05/2007

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Negligence Pt1

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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Proximity

* Is the consideration to be addressed once the requirement of reasonable foreseeability has been met
* Referred to as “ a touchstone for determining the existence and content of any common law duty of care” - Jaensch v Coffey (1984)
* Relevant in cases of economic loss and mental harm
* There are 3 types of proximity: physical, circumstantial and causal

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)

Gala v. Preston (1991) (Duty relationship between parties engaged in an illegal enterprise-No proximity-No duty)

Nagle v. Rottnest Island Authority (1993) (P injured while diving into a rocky pool- pool promoted and operated by D-Proximity, Duty upheld)

Held: the board, by encouraging persons to engage in an activity, came under a duty to take reasonable care to avoid injury to them and the discharge of that duty... require that they be warned of any foreseeable risks of injury associated with the activity so encouraged

Hill v Van Erp- - loss of mere expectation is recoverable in damages

* Physical proximity- space and time between th e person or property of the plaintiff, and person and property of the defendant
* Circumstantial – (ie Donoghue v Stevenson) Overriding relationship of employer/employee or professional man/client
* Causal – closeness or directness of the relationship between the particular act or cause of action and the injury sustained.

Chapman v Hearse - thrown from the car - caused dr cherry to come to the aid - negligence of hearse caused the death of the doctor…chain of causation

Proximity: Criticised

The High Court has expressed reservations about the usefulness of the notion of proximity in recent times

Hill v Van Erp - A unifying concept of proximity described as “ambitious” per Dawson J; “of limited use in the determination of individual disputes” per Gummow J; and affording no real guidance “in determining the existence of a duty of care in difficult and novel cases” per McHugh J

Perre v Apand - Proximity was no longer the “talisman for determining a duty of care” per McHugh J; and “incapable of fulfilling, unaided, the function of demonstrating the existence or absence of duty of care” per Kirby J

Sullivan v Moody (2001) - foreseeability of harm is not sufficient to give rise to a duty of care

Facts: In separate proceedings, fathers were denied access to their children as Dr Moody (employed by the SA Dept of Community Welfare) incorrectly diagnosed sexual abuse; The fathers sued in negligence for psychiatric injury.
Judgment: Appeals dismissed as no duty of care exists to protect a suspected abuser from emotional distress. “The formula is not ‘proximity’. Notwithstanding the centrality of that concept, for more than a century … it gives little practical guidance in determining whether a duty of care exists in cases that are not analogous to cases in which a duty has been established”.

Proximity: Unclear how it is to be Applied Now?

Perre v Apand: Although proximity is not a universal test for duty of care, it is a concept which has not been totally abandoned (per McHugh J)

* “Incremental Approach”

Sutherland Shire Council v Heyman: per Brennan CJ “develop incrementally and by analogy with established categories”

Perre v Apand: incremental approach adopted by McHugh J

* Incremental Approach criticised in Brodie v Singleton Shire Council by Callinan J as retreating to a “safe haven”

Duty Categories: To whom is duty owed?

• 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.

Consumers

Donoghue v Stevenson - relationship between buyer and seller

Voli v Inglewood Shire Council

Facts: Council had a stage - stage was being rented by some locals - people were walking on stage for a vote - stage collapsed - voli sued council because they built the stage - some question the architect was to blame - architect was involved very early on in the development – however there was reasonable proximity for a duty of care to exist on the architect’s part…council was held liable

Bryan v Maloney

Facts: builder failed to comply with building plans - house was built for the original purchasers - they sold the house to others who sold to others etc… - the 4th gen owners sued because the house was falling apart - high court found that it was poorly built so the owners were right in suing the original builder even though there were different purchasers and a number of years between the problem coming to light…

Australian Safeway Stores v Zaluzna - Occupiers liability – standard of duty

Facts: P sued for damages after he slipped anf fell on D’s wet supermarket floor. It had bee na rainy day and in consequence of the foot traffic the floor haf become moist. The trial judge found that D had not breached its duty of care as an invior to warn an invitee, P, of any unusual dangers.
Held: (on appeal) the trial judge applied the wrong test as D’s duty as an occupier was the ordinary common law duty to take reasonable care. ‘The fact hat the respondent upon the land of the appellant establishes a relationship between them which in itself suffices to give rise to a duty on the part of the appellant to take reasonable care to avoid foreseeable risk of injury to the respondent’.

Users and purchasers of premises

* Hackshaw v Shaw (1984) 155 CLR 614

Rescuers

Chapman v. Hearse (1961) - 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. 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.

* There is no positive legal obligation in the common law to rescue, onlu a amoral and social one
* The law does not ‘cast a duty upon a man to go to the aid of another who is in peril or distress, not caused by him
* There may however exist a duty to rescue in master servant relationships or boat owner and guest relationships for instance

Horsley v Macleran (The Ogopogo) (1971 - One is only required to use reasonable care and skill in the rescue. ship case - owners of the boat - person was a guest on the boat - fell overboard into icy water - not due to the fault of the boat or boat owner - Horsley jumped into the water to rescue the individual - boat circled around to come back and get them - both people died in the meantime - shipand shipowner owed a duty of care to rescue them

The duty owed to rescuers

• The rescuer is generally protected: torts recognizes the existence of a duty of care owed to the rescuer
• The issue of volenti-non fit injuria: This principle does not seem to apply in modern tort law to rescue situations

– Note however the case of Sylvester v GB Chapman Ltd (1935) :attack by leopard while attempting to put out a smouldering cigarette in straw

‘The cry of danger is the summons to relief. The law does not ignore these reactions of the mind.. It recognizes them as normal…and places their effects within the range of of the natural and the probable [and for that matter the foreseeable] per Cardozo J in Wagner v International Railway Co. (1921)

Rescuers may recover for both physical injuries and nervous shock

Mount Isa Mines v Pussey (1970)- P worked at a mine - saw his two co-workers get severely burnt - takes them to get treatment - because of what he saw (burns) he suffered nervous shock and developed schizophrenia – P sued D for damages and the trial judge found that the injuries sustained by the plaintiff were directly caused by the incident
Held: reasonable foreseeability of actual injury need not be proven, but the class of injury must be foreseeable, that not some other form of harm must have been a foreseeable result of the harm complained of - P was successful in his claim

School Children

Geyer v Downs (1977) - When a duty arises

Facts: P, aged 8 suffered severe brain damage when hit in the head by a softball in the school playground before 9am when it was known to the principle that children were arriving, however there was no supervision until 9am, although he did advise the pupils that they were to spend this time sitting quietly or reading. P sued D for damages in negligence and also brought action against the Government of NSW on the grounds of vicarious liability. The jury’s verdict for P was set aside by CCA on the relationship between school teacher/pupil was not as such to give rise to a duty of care at that time of the morning.
Held: (on appeal) restoring the verdict. The duty of care owed by the headmaster require that he should take such measures as in all the circumstances were reasonable to prevent injuries to him pupils. In this case the injury was of a kind that was foreseeable, and might have been prevented had there been supervision of the playground activities. It was open tot the jury to conclude that a duty of care arose in the mornings before 9am when the children were allowed onto the grounds.

The unborn child:

– The duty is not simply to take reasonable care in the abstract but to take reasonable care not to injure a person whom it should reasonably be foreseen may be injured by the act or neglect if such care is not taken (Winneke CJ/ Pape J)

– 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) - mother was pregnant and driving car - had an accident due to her negligence - child was then born and suffered a huge disability - child (once turned 18) sued the mother - child was successful “only the living can sue”…

Wrongful life - as a result of D's negligence, a child is born with a deformity

Waller v James 2002- D’s sued (IVF clinic) - they were sued because no tests were done on the husband for a genetic condition (AT3) - apparently causes a child to be born with cerebral thrombosis - child is born with brain damage and has uncontrolled seizures - husband and wife and child sue - they allege that if they had known the genetic condition could have been passed on then they would have chosen another embryo, used different sperm or terminated the pregnancy - we would have chosen not to have this child

Harriton v Stephens [2002] - P mother had a fever and rash - unaware at the time that she is pregnant - doctor sees her - is concerned that she is pregnant - runs some blood tests to seeif she has rubella (which can badly affect a child) - however when she goes to the clinic she is seen by a different doctor - he says congratulations you are pregnant -instead of telling her anything else he tells her that the tests showed that it was not rubella - when in fact the tests said that if no recent contact or rubella like rash, further contact with this virus is unlikely to produce congenital abnormalities - so of itself it didn’t say that there wasn’t rubella - it didn’t specifically say you didn’t have rubella- which is what the doctor said - so she has the child - child is born deaf, blind, mentally retarted etc…

Edwards v Blomeley 2002 - P husband underwent a vasectomy - told by the doctor that he would still have a few ejaculations after that - had a test six weeks after the operation to see how high the sperm count was - found he had 19,000,000 sperm per ml - doctor said that this was higher then normal - performed another test 2 weeks later which showed there were 5,000,000 per ml - tests showed that the vasectomy had not worked - doctor didn’t tell the P this - doctor said at least the sperm count was going down – doctor recommended another sperm test - should have it in one months time - this test was never done - wife ended up getting pregnant and had a child - child ended up being born with a genetic condition - had seizures and brain damage etc… No doubts about the negligence on the cases - or that there was not a duty of care - the question was whether the children could sue themselves (ie but for your negligence I would not have been born - my parents would have terminated the pregnancy) One of the allegations of negligence from the children was that the IVF clinic, the doctors, were negligent in not advising my parents to kill me…as we said before “only the living can sue”… So if you were dead you personally would have no claim

Unforeseeable Plaintiffs

In general the duty is owed to only the foreseeable plaintiff and not abnormal Plaintiffs.

Bourhill v Young [1943] - P is a fishmonger - who is 8 months pregnant - gets off a tram - walks around the side of the tram - on the other side a motorcyclist was traveling past her at speed - heard the collision - didn’t see it - motorcyclist died - body was taken away before she got to the scene - took action against the motorcyclists estate for suffering nervous shock - lost her case because this was not foreseeable - she was an ‘abnormal’ plaintiff

Levi v Colgate-Palmolive Ltd (1941)- 21yr old P received a sample of bath salts - took a bath with the salts - suffered tingling and redness on the skin - P failed as there was no evidence the ingredients were in any way dangerous or necessitated a warning on the label etc…

Haley v L.E.B. [1965] - D’s workers had excavated a trench in a footpath - no signs erected - one end of the trench they marked it with a pick and shovel - other end they marked it with a heavy weight and handle - P was walking along - trips over the heavy weight and handle and suffered damage - P was blind - as blind people are a foreseeable class of people P succeeded

Qualifications to the duty of care

* Novus Actus Interveniens - external factors which operate as to break the chain of causation - Chapman v. Hearse
* The opportunity for intermediate examination:

Grant v. AKM - defect is hidden and unknown to the consumer

Facts: Dr Grant contracted dermatitis from two pairs of ‘golden fleece’ long underpants owing to excess sulphites which were negligently left in the garments in the process of manufacture. The dermatitis became so severe that he was hospitalised for some months. Grant claimed damages against the manufacturer and the retailer from who he purchased the garments.

Held: The presence of the sulphites in the garments was a hidden and latent defect which could not be detected by any examination that could reasonably be made. The underwear reached P in the same defective condition that it left D. The underwear was made of the purposes of apparel as worn by P. These facts establish a duty of care between P and manufacturer. There had been a breach of manufacturers’ duty and so it is liable for damages for its negligence. ‘It is enough now to say that there Lordships hold the present case to come within the principle of Donohue’s case’. ‘One further point may be noted. The principle in Donohue’s case can only be noted when the defect is hidden and unknown to the consumer otherwise the directness of the cause and effect si absent…’ (The mischief which follows from one’s own violation). Additionally, the retailers were liable in contracts for breaches of statutorily implied warranties.