LAW OF TORTS

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LAW OF TORTS

• LECTURE 4
• Negligent Trespass
• Negligence Duty of Care
• Greg Younggreg.young_at_lawyer.com

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NEGLIGENCE AND FAULT IN TORTS
FAULT
NEGLIGENCE
INTENTION
TRESPASS
NEGLIGENCE the action
CARELESS
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NEGLIGENT TRESPASS

• Intentional or negligent act of D which
  directly causes an injury to the P or his /her
  property without lawful justification
• The Elements of Trespass
• fault intentional or negligent act
• injury must be direct
• injury may be to the P or to his/her property
• No lawful justification

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NEGLIGENT TRESPASS

• While trespass is always a direct tort, it is not
  necessarily an intentional act in every instance.
  It may be committed negligently
• Negligent trespass is an action in trespass not
  in negligence
• Where the facts of a case permit, it is possible
  to frame an action in both trespass and
  negligence on the same facts
• Williams v. Molotin (1957) 97 CLR. 465.

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What is Negligence?

• It is the neglect of a legal duty
• It involves the three elements of
• duty
• breach
• resultant damage

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Negligence The Elements
Duty of care
Negligence
Breach
Damage
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Negligence The Early Cases

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

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Donoghue v. Stevenson

• Ginger beer-decomposing snail-P has
  shock-gastroenteritis
• 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

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NEGLIGENCE

• 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 consumers life or
  property, owes a duty to the consumer to take
  that reasonable care

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NEGLIGENCE THE DUTY OF CARE

• The dicta of Lord Atkin in Donoghue v Stevenson
• 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.
• You must take reasonable care to avoid acts or
  omissions which you can reasonably foresee would
  be likely to injure your neighbour/another

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Negligence (Duty of Care)

• The Duty of care is the obligation to avoid acts
  or omissions which are reasonably foreseeable to
  cause damage to another.
• When does one owe 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

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The Modern Requirements for the Duty of Care

• Jaensch v. Coffey (1984) per Dean J. p587-8
• A duty situation would arise from the following
  combination of factors
• A reasonable foreseeability of real risk of
  injury to P either as an identifiable individual
  or a member of a class of persons
• The existence of proximity between the parties
  with respect to the act or omission
• Absence of any rule that precludes such a duty

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What is Reasonable Foreseeability?

• Reasonable foreseeability presupposes an
  objective or a reasonable persons 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 Ds conduct
  not from his or her peculiar position, but from
  that of a reasonable person similarly placed
• Reasonable foreseeability is a question of law

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Reasonable Foreseeability Case Law

• Nova Mink v. Trans Canada Airlines 1951
  (Air traffic noise causing minks to eat their
  young ones-No foreseeability)
• 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
  accident- Foreseeability upheld)

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The Scope of Reasonable Foreseeability

• 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 husbands
  condition-action against D who caused
  accident-Proximity-Duty)
  

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Reasonable Foreseeability Established Category
Of Duty of Care

• Koehler -v- Cerebos (Australia) Limited 2005
  HCA 15
• McHugh, Gummow, Hayne and Heydon JJ (majority)
  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
• 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

• Jaensch v. Coffey (1984) (Car accident-spouse
  goes to hospital to see injured partner-suffers
  shock from what she sees and hears of husbands
  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
  

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The Main Features of Proximity
PROXIMITY
Degree of proximity
Evaluation
Physical
Evaluation of legal and policy considerations
of what is fair and reasonable
Circumstantial
Causal
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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)

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Proximity - Criticised

• Sullivan v Moody (2001) 207 CLR 562
• 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
• Gleeson CJ, Gaudron, McHugh, Hayne Callinan JJ
• 573 foreseeability of harm is not sufficient
  to give rise to a duty of care
• 578 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

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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

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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.
• Examples
• - Employer/Worker
• - Driver/Other Road Users
• - Doctor/Patient
• - Consumers, users of products and structures
• Donoghue v Stevenson
• Voli v Inglewood Shire Council
• Bryan v Maloney
• Users of premises etc.
• Australian Safeway Stores v Zaluzna

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Unborn Child

• 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)

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Unborn Child

• Wrongful life cases
• Harriton v Stephens 2006 HCA 15 (9 May 2006)
  The specific duty of care postulated was a duty
  upon Dr Stephens to diagnose Rubella and then
  advise Mrs Harriton to terminate the pregancy.
• Appeal dismissed (7 to 1 majority)
• Crennan J (Gleeson CJ, Gummow Heydon JJ
  agreeing), Hayne J and Callinan J in separate
  judgments dismissed the Appeal
• Kirby J dissented

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Harriton v Stephens

• Crennan J (Gleeson CJ, Gummow Heydon JJ
  agreeing)
• 244 It was not Dr P R Stephens's fault that
  Alexia Harriton was injured by the rubella
  infection of her mother. Once she had been
  affected by the rubella infection of her mother
  it was not possible for her to enjoy a life free
  from disability. ... Dr P R Stephens would have
  discharged his duty by diagnosing the rubella and
  advising Mrs  Harriton about her circumstances,
  enabling her to decide whether to terminate her
  pregnancy he could not require or compel Mrs 
  Harriton to have an abortion.

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Harriton v Stephens

• Crennan J (Gleeson CJ, Gummow Heydon JJ
  agreeing)
• 249 It is not to be doubted that a doctor has
  a duty to advise a mother of problems arising in
  her pregnancy, and that a doctor has a duty of
  care to a foetus which may be mediated through
  the mother403. However, it must be mentioned
  that those duties are not determinative of the
  specific question here, namely whether the
  particular damage claimed in this case by the
  child engages a duty of care. To superimpose a
  further duty of care on a doctor to a foetus
  (when born) to advise the mother so that she can
  terminate a pregnancy in the interest of the
  foetus in not being born, which may or may not be
  compatible with the same doctor's duty of care to
  the mother in respect of her interests, has the
  capacity to introduce conflict, even incoherence,
  into the body of relevant legal principle

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Harriton v Stephens

• Crennan J (Gleeson CJ, Gummow Heydon JJ
  agreeing)
• 251 252 Because damage constitutes the gist
  of an action in negligence, a plaintiff needs to
  prove actual damage or loss and a court must be
  able to apprehend and evaluate the damage, that
  is the loss, deprivation or detriment caused by
  the alleged breach of duty. ... In the Court of
  Appeal, Spigelman CJ recognised that in cases of
  this kind, to find damage which gives rise to a
  right to compensation it must be established that
  non-existence is preferable to life with ...
• A comparison between a life with disabilities and
  non-existence, for the purposes of proving actual
  damage and having a trier of fact apprehend the
  nature of the damage caused, is impossible.

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RESCUERS

• There are two separate issues in rescue
• The duty to rescue
• The duty of care owed to the rescuer
• There is no positive legal obligation in the
  common law to rescue
• 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) 22 DLR
• One is only required to use reasonable care and
  skill in the rescue

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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)
• Chapman v Hearse
• Videan v British Transport Commission (1963)
  (rescue attempt to get a child trespassing on
  railway line)
• Rescuers may recover for both physical injuries
  and nervous shock
• Mount Isa Mines v Pusey (1970)
• The US fire-fighters Rule does not apply in
  Australia and the UK
• Ogwo v Taylor (1988) AC 431

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Unforeseeable Plaintiffs

• In general the duty is owed to only the
  foreseeable plaintiff and not abnormal
  Plaintiffs.
• Bourhill v Young 1943 AC 92
• Levi v Colgate-Palmolive Ltd (1941)
• Haley v L.E.B. 1965 AC 778

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IMPACT OF THE CIVIL LIABILITY ACT ON THE DUTY OF
CARE

• The Civil Liability Act 2002 together with the
  Civil Liability Amendment (Personal
  Responsibility) Act 2002 govern the law of
  negligence in NSW.
• The Civil Liability Act 2002 was enacted 28th
  May 2002 and received assent on 18 June 2002
• Rationale behind the legislation
• to limit the quantum of damages for personal
  injury and death in public liability instances
  resultantly lowering insurance premiums.
• to discourage over litigation, by the
  imposition of restrictions and obligations and
  responsibilities upon plaintiffs and counsel

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Duty of Care Policy

• In novel cases, the Courts will not only apply
  the test of reasonable foreseeability but also
  consider policy considerations
• Hill v- Chief Constable of West Yorkshire 1989
  1 AC 53 (the Yorkshire Rippers last victim not
  owed a duty of care by investigating police)
• Sullivan v- Moody (2001) 207 CLR 562 (suspected
  sexual assault offenders not owed a duty of care
  to prevent harm by investigating community
  services officers)
• DOrta-Ekenaike v- Victorian Legal Aid 2005
  HCA 12 (advocates immunity upheld)

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Civil Liability Act 2002 Duty of Care

• Statute overrides the common law and that any
  negligence claim commenced since 20 March 2002
  will be governed by the Civil Liability Act 2002.
  
• Next lecture, we will consider the application
  of
•  
• general duty of care provisions of s.5B
• situations of obvious/inherent risks under ss.5F
  to I and
• situations of dangerous recreational activities
  under ss.5J to N.

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The Rationale for Reform

• It's my view that this country is tying itself
  up in tape because of over litigation, a
  long-term trend to see us litigate for
  everything, to try to settle every problem in our
  lives...by getting a big cash payment from the
  courts....a country as small as ours can't afford
  to have the American-style culture of
  litigation". (Bob Carr)

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The Rationale for Reform

• We need to restore personal responsibility and
  diminish the culture of blame.That means a
  fundamental re-think of the law of negligence, a
  complex task of legislative drafting.There is no
  precedent for what we are doing, either in health
  care or motor accident law, or in the legislation
  of other States and Territories.We are changing
  a body of law that has taken the courts 70 years
  to develop (Bob Carr)

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The Approach to Reform Governments View

• We propose to change the law to exclude claims
  that should never be brought and provide defences
  to ensure that people who have done the right
  thing are not made to pay just because they have
  access to insurance (Bob Carr)
• We want to protect good samaritans who help in
  emergencies. As a community, we should be
  reluctant to expose people who help others to the
  risk of being judged after the event to have not
  helped well enough (Bob Carr)