LAW OF TORTS

1. LAW OF TORTS Weekend Lecture 1BLecturer: Greg Younggreg.young@lawyer.com Tort of Negligence - Duty of Care

2. NEGLIGENCE AND FAULT IN TORTS FAULT NEGLIGENCE INTENTION TRESPASS NEGLIGENCE the action CARELESS

3. NEGLIGENT TRESPASS • Intentional or negligentact of D which directly causes an injury to the P or his /her propertywithout 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

4. 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.

5. What is Negligence? • It is the neglect of a legal duty • It involves the three elements of • duty • breach; • resultant damage

6. Negligence: The Elements Duty of care Negligence Breach Damage

7. Negligence: The Early Cases • Heaven v. Pender (1883) • (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.

8. Donoghue v. Stevenson • Ginger beer-decomposing snail-P has shock-gastroenteritis • Privity of contract. 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

9. 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 consumer’s life or property, owes a duty to the consumer to take that reasonable care

10. 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

11. 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

12. The Modern Requirements for the Duty of Care Jaensch v. Coffey (1984) per Deane 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

13. What is Reasonable Foreseeability? • Reasonable foreseeability presupposes an objective or a reasonable person’s 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 D’s conduct not from his or her peculiar position, but from that of a reasonable person similarly placed • Reasonable foreseeability is a question of law

14. 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)

15. 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 husband’s condition-action against D who caused accident-Proximity-Duty-Foreseeability upheld)

16. Proximity • 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

17. 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

18. 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

19. 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”

20. 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)

21. 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

22. 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. ”

23. 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 mother[403]. 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 ”

24. 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. ”

25. 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

26. 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 smoldering cigarette in straw

27. THE DUTY OWED TO RESCUERS ‘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 Pussey (1970) The US fire-fighter’s Rule does not apply in Australia and the UK - Ogwo v Taylor (1988) AC 431

28. 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 (1941) • Haley v L.E.B. [1965] AC 778

29. 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

30. The Rationale for Reform • [I]t'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)

31. 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)

32. The Approach to Reform: Government’s 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 • 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)

33. Torts Law Reform: Stage 1 • The 1st stage aimed both at the number of claims as well as at the cost of claims • restriction of legal advertising, minimising the promotion of claims and a restriction on the amount recoverable for legal costs • capping damages, applying a higher discount rate to the final lump sum figure, and the abolition of punitive damages

34. Torts Law Reform: Stage 2 • The 2nd Stage: reforms include a range of broad-based tort reform measures, including a fundamental re-assessment of the law of negligence • addressing the concept of reasonable foreseeability in the law of negligence; • protection of good samaritans who assist in emergencies; • waivers for risky activities; • statutory immunity for local government; public authorities which fail to exercise their powers will not breach any duty; • changing the test for professional negligence to one of 'peer acceptance'; • abolishing reliance by plaintiffs on their own intoxication; preventing people from making claims where they were injured in the course of committing a crime; • provide a wider range of options for damages; creating a presumption in favour of structured settlements.

35. Claims excluded from operation of the Civil Liability Act: s3B(1) • a) an intentional act that is done with intent to cause injury or death or that is sexual assault or other sexual misconduct. Note Part 7 does not apply to intentional torts done with intent to injure. • (b) dust diseases under the Dust Diseases Tribunal Act 1989 • (c) personal injury damages where the injury or death concerned resulted from smoking or other use of tobacco products • (d) actions governed by Part 6 of the Motor Accidents Act 1988 and Chapter 5 of the Motor Accidents Compensation Act 1999 except the provisions that subsection (2) provides apply to motor accidents • (e) Workers Compensation Act 1987, Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987, Workers Compensation (Dust Diseases) 1942, Victims Support and Rehabilitation Act 1996 or Anti-Discrimination Act 1977 or a benefit payable under the Sporting Injuries Insurance Act 1978

36. THE CIVIL LIABILITY AMENDMENT (PERSONAL RESPONSIBILITY) ACT • Part 1A Division incorporates statutory reform to the law of negligence in Sections 5A to 5T • Commenced 6/12/02, except Section 5N applies to breaches of warranties which occur after 10/1/03 • 5A scope of application • The part applies to any claims in negligence regardless of whether the claim is brought in tort, contract, under statute or otherwise

37. Duty of Care • S 5B:(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 notinsignificant, 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.

38. Duty of Care – commentary • Section 5B(1) provides a person is not negligent unless… (b) the risk was not insignificant. • Wyong Shire Council v Shirt (1980) 146 CLR 40: risk must be “real” in the sense that a reasonable person would not “brush it aside as far-fetched or fanciful.” • It is unclear whether “not insignificant” in Section 5B(1)(b) is more restrictive than “not far-fetched or fanciful” in Wyong Shire Council v Shirt

39. Duty of Care 5C Other principles In proceedings relating to liability for negligence: • 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 • 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 • 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.

40. Causation 2 stage process is adopted. 5D General principles • A determination that negligence caused particular harm comprises the following elements: • that the negligence was a necessary condition of the occurrence of the harm ( "factual causation" ), and • that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused ( "scope of liability" ). Compare with March v E&MH Stramare Pty Ltd (1991) 171 CLR 506

41. Causation Failure to warn cases 5D General principles (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: • the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and • any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

42. Assumption of risk Injured persons presumed to be aware of obvious risks 5G Injured persons presumed to be aware of obvious risks • In determining liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obviousrisk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. • For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.

43. Assumption of risk 5H No proactive duty to warn of obvious risk • A person ( "the defendant" ) does not owe a duty of care to another person ( "the plaintiff" ) to warn of an obvious risk to the plaintiff. • This section does notapply if: (a) the plaintiff has requested advice or information about the risk from the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the risk, or (c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant. (3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.

44. Assumption of risk 5I No liability for materialisation of inherent risk • A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk. • An "inherent risk" is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. • This section does not operate to exclude liability in connection with a duty to warn of a risk.

45. Recreational activities 5M No duty of care for recreational activity where risk warning • A person ( "the defendant" ) does not owe a duty of care to another person who engages in a recreational activity ( "the plaintiff" ) to take care in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff. • If the plaintiff is an “incapable person”, the defendant may rely on a risk warning only if: (a) the incapable person was under the control of or accompanied by another person (who is not an incapable person and not the defendant) and the risk was the subject of a risk warning to that other person, or (b) the risk was the subject of a risk warning to a parent of the incapable person (whether or not the incapable person was under the control of or accompanied by the parent).

46. Recreational activities 5M No duty of care for recreational activity where risk warning • The fact that a risk is the subject of a risk warning does not of itself mean: (a) that the risk is not an obvious or inherent risk of an activity, or (b) that a person who gives the risk warning owes a duty of care to a person who engages in an activity to take precautions to avoid the risk of harm from the activity.

47. Recreational activities 5N Waiver of contractual duty of care for recreational activities • Despite any other written or unwritten law, a term of a contract for the supply of recreation services may exclude, restrict or modify any liability to which this Division applies that results from breach of an express or implied warranty that the services will be rendered with reasonable care and skill. • Nothing in the written law of New South Wales renders such a term of a contract void or unenforceable or authorises any court to refuse to enforce the term, to declare the term void or to vary the term.

48. Recreational activities 5L No liability for harm suffered from obvious risks of dangerous recreational activities (1) A person ( "the defendant" ) is not liable in negligence for harm suffered by another person ( "the plaintiff" ) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff. (2) This section applies whether or not the plaintiff was aware of the risk.

49. Recreational Activities • At present, there are no authorities to assist us in interpreting Sections 5M to L. • However, it is clear that the judicial approach to liability was affected in cases decided in and around the public debate and introduction of the Civil Liability Act. • For example, compare the approach to liability in Beck v State of NSW & Anor [2001] NSWSC 278 with Swain v Waverley Municipal Council [2005] HCA 4 (9 February 2005) Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council [2004] NSWCA 247 (27 July 2004)

50. Professional negligence Sections 5O & 5P • “Peer professional opinion” (or Bolam) test for determining the appropriate standard of care • Rogers v Whitaker (1992) 175 CLR 479 • Cases involving a risk of injury or death arising from a professional service, community standards and other considerations may be applied by the court in determining the appropriate standard of care to be exercised.