TORTS

1. TORTS INTRODUCTION TO NEGLIGENCE Adj. Asst Prof Jo Hintz Torts 031 LW5A

2. What is the tort of negligence? The law of negligence is concerned with a duty to take reasonable care to avoid a foreseeable risk of injury to another. Torts 031 LW5A

3. OVERVIEW OF EXAMINATION OF NEGLIGENCE • COMPARISON OF TRESPASS & NEG. • ORIGINS • DEFINITION • RATIONALE • INTERESTS PROTECTED • ELEMENTS • DEFENCES • REMEDIES • ONUS OF PROOF • FUTURE DIRECTIONS Torts 031 LW5A

4. Comparison of Trespass and Negligence • In TRESPASS – (intentional tort) – the question is who did what to whom • In NEGLIGENCE (unintentional tort) –the question is whether the D failed to take reasonable care in the circumstances Torts 031 LW5A

5. Comparison of Trespass & Negligence TRESPASS • DIRECT and Actionable per se • ONUS OF PROOF shifts from P to D to disprove fault NEGLIGENCE • Usually INDIRECT AND MUST PROVE DAMAGE (but hybrid case – negligent trespass – direct + unintentional interference) Williams v Milotin (1957) 97 CLR 465 • ONUS OF PROOF on P throughout Torts 031 LW5A

6. ORIGINS • Originally negligence was merely a means of incurring liability in trespass or case. • Abolition of the forms of action of trespass and case by legislature • 1932 – complete recognition of negligence as a separate tort Donoghue v Stevenson [1932] AC 562 Torts 031 LW5A

7. DEFINITION • Be careful of the different usages of the word ‘negligence’ • The term can mean: • Fault e.g in a trespass action; or • The tort of negligence which is established where duty, breach,damage are proven by the P; or A description of conduct which amounts to a breach of the duty of care owed by D to P e.g the second element of the tort of negligence. Torts 031 LW5A

8. RATIONALE • Negligence is about preventing and controlling risky behaviour. • Courts have always been concerned about stunting economic development so they have imposed limits on compensating negligently occasioned harm. • The limits they have imposed are the elements which form the cause of action in negligence. Duty, Breach, Damage caused by the breach and not too remote. Torts 031 LW5A

9. INTERESTS PROTECTED The tort of negligence protects our right of physical and emotional integrity against unintentional wrongful conduct Also protects against property damage Torts 031 LW5A

10. ELEMENTS • A DUTY OF CARE owed by the D to the P • A BREACH of the duty of care • CAUSATION: the P must show that the D’s breach caused the damage which is claimed • REMOTENESS of damage: the P must show that the damage claimed was reasonably foreseeable. Torts 031 LW5A

11. DUTY OF CARE What is meant by this term? ‘The threshold element of a cause of action for negligence is the existence of a duty to use due care toward an interest of another that enjoys legal protection against unintentional invasion.’ Lucas CJ Bily v Arthur Young and Co 834 P 2d 745 The duty of care was traditionally dependent upon some specific relationship recognised by the law Torts 031 LW5A

12. IS A DUTY OF CARE OWED? – How to answer this question Query – ESTABLISHED OR NOVEL CATEGORY? Do the facts fit into one of the establishedcategories? Yes or No If Yes, identify the relationship, state established duty, cite authority and move onto issue of BREACH. If No, then novel category Torts 031 LW5A

13. TUTORIAL SCENARIO Judy v Bon Appetite/Dr Ross – physical injury and consequential nervous shock Daisy v Bon Appetite/ Dr Ross - physical injury in utero Jack v Bon Appetite/Dr Ross – secondary victim- nervous shock Jo v Bon Appetite/Dr Ross – secondary hearsay victim – nervous shock Torts 031 LW5A

14. EXAMPLES Of ESTABLISHED CATEGORIES • Driver to passenger Cook v Cook • Employer to employees Smith v Charles Baker & Co • Doctor to patient Rogers v Whitaker Torts 031 LW5A

15. NOVEL CATEGORIES • Where a duty or its content have not already been established by precedent then it is a novel category • Examples of novel categories: *pure economic loss (you will consider negligent misstatement when you study Obligations) *pure nervous shock *statutory authorities *non-delegable duties of care Torts 031 LW5A

16. EXAMPLES OF NOVEL CATEGORIES • Driver to father of dead passenger - nervous shock Hancock v Wallace • Employer to parents of dead employee - nervous shock Australian Stations P/L v Annetts • Solicitor to beneficiary under a client’s will Hill v Van Erp • Doctor to parents patients for psychological injury and economic loss Sullivan v Moody Torts 031 LW5A

17. DUTY OF CARE -Novel case Reasonable Foreseeability • Would the reasonable person in the D’s position have foreseen that there was a real risk that carelessness on her or his part could cause loss/harm to PEOPLE in the P’s position • What CLASS OF PEOPLE might possibly be put at some risk of injury in some way if the D failed in some way to take reasonable care? • Is the P one of those people? Torts 031 LW5A

18. Important developments in determining Duty in novel categories • Pre-1932- Only if the relationship fitted within an already existing category – e.g. occupier of land & visitor; surgeon & patient • Donoghue v Stevenson 1932-Lord Atkin’s neighbour principle • Anns v London Borough of Merton 1978 –per Lord Willoughby – a two tier test • Jaensch v Coffey 1984- Deane J’s proximity test • Hill v Van Erp 1997;– proximity dead but not buried • Perre v Apand Pty Ltd 1999 –no consistent approach • Sullivan v Moody 2001 – indicated what is not the test but provided limited guidance • Tame & Annetts cases; Barclay Oysters Pty Ltd v Ryan 2002 Torts 031 LW5A

19. Development of Reasonable Foreseeability • Before Donoghue v Stevensonin 1932 there was no underlying rationale to establish a duty of care. A duty of care only arose in established duty situations e.g. surgeon to patient • Heaven v Pender (1883) 11 QB 503 Brett MR attempted to establish a rationale for the duty of care and thus extend negligence to a general duty. But the duty was based on the nature of the relationships between the parties – no general duty to the world at large. Torts 031 LW5A

20. Duty of Care – early development Brett MR in Heaven v Pender ‘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 of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger’. Torts 031 LW5A

21. DONOGHUE v STEVENSON • P’s friend purchased ginger beer in opaque bottle- contents not capable of examination • Beer manufactured by the D’s • P drank some of beer then noticed decomposed snail when she poured the balance • P claimed she suffered gastro and nervous shock and sued D in negligence • No contract between P & D HELD BY H of L: 3:2 The manufacturer of products owes a duty of care in the preparation of those products to the ultimate consumer of them (narrow ratio) Torts 031 LW5A

22. Lord Atkin – DONOGHUE v STEVENSON ‘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 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:…those person 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.’ Torts 031 LW5A

23. Importance of Donoghue v Stevenson • There is a duty to take care to avoid damage to others where there is a foreseeable risk of injury to others if reasonable care is not taken • Lord Atkin’s test created a rationale for the duty of care and allowed a duty of care to arise in any circumstance – do not have to locate case within existing category • The test redefined Brett MR’s formulation in Heaven v Pender by adding a requirement of proximity to limit the test of foreseeability E.g.. Lord Atkin stated that a duty of care is owed to those who are ‘so closely and directly affected’ that the D ought to have had them in contemplation when acting or omitting to act. Torts 031 LW5A

24. Post Donoghue v Stevenson • A big problem for the courts post D v S was the fact that the reasonable foreseeability test was too wide/undemanding – they needed to limit it. • Tension between establishing duties from a general principle as advocated by Lord Atkin or whether to develop the duties incrementally from established duty relationships. • General principle approach (unifying theory) v incremental approach Torts 031 LW5A

25. Anns v London Borough of Merton [1978] AC 728 • 2 tier test (1)Was P reasonably foreseeable as a person or as a class of persons liable to be injured? (very broad question of fact which is not difficult to satisfy) (2)Are there policy grounds for excluding liability in tort (floodgates, will liability greatly exceed fault;alternative remedies- common law & statute; can P better avoid the loss, conflict with other areas of law, would finding of a duty place an unreasonable burden on the autonomy of individuals) • Problem with Anns approach- too wide and too much focus on policy considerations Anns approach rejected by H CT in Sutherland Shire Council v Heyman 1985 Torts 031 LW5A

26. Australian Approach 1984 – 1997 - PROXIMITY • During 1980’s – 90’ the High Court developed its own formulation of a general principle • Deane J in Jaensh v Coffey (1984) – in addition to foreseeability and policy considerations there is an antecedent requirement of proximity. • PROXIMITY = special close relationship Physical proximity- time & space Circumstantial proximity-an overriding relationship of employer or employee or professional and client Causal proximity- between D’s act and P’s injury • Problem with Proximity- Justice Brennan not a fan- he thought it was meaningless and an excuse for judges to conceal the fact that they are making value judgments and policy decisions in individual cases. Torts 031 LW5A

27. Eclipse of Proximity Hill v Van Erp (1997) – • most of the HC rejected the utility of the concept of proximity as a unifying theoretical concept. They said it was more useful as a description of that ‘something extra’ that is required. • Preferable for the law to “develop novel categories of negligence incrementally and by analogy with the established categories..” Torts 031 LW5A

28. PROXIMITY – ‘Dead but notburied’ Perre v Apand Pty Ltd (1999) 198 CLR 180 – no clear majority opinion on proximity • Gleeson CJ and Gummow J – ‘salient features’ • Gaudron J – ‘protected interests’ • Kirby J – used the UK approach in Caparo Industries v Dickman (1990) 3 tiered -(1)reasonable foreseeability;(2)proximity;(3)fair,just and reasonable • McHugh J – vulnerability is the key factor • Hayne J –knowledge by D’s of the P’s as particular persons rather than members of an unascertained class • Callinan J – a mix of approaches Torts 031 LW5A

29. ‘And Still We Wait’ Sullivan v Moody [2001] HCA 59 • Proximity is not the formula – it expresses the nature of what is the issue but does not provide an explanation of the reasoning leading to a conclusion • Caparo test is not the law in Australia – the second and third stages are too nebulous • Current approach – different classes of case give rise to different problems in determining the nature and scope of a duty of care – but they identified some important factors. Torts 031 LW5A

30. Sullivan v Moody – factors tending for or against the imposition of a duty • Issues associated ‘with the harm suffered by the P e.g. where its direct cause is the criminal conduct of some 3rd party • Issues which arise where ‘ the D is the repository of a statutory power or discretion’ • Issues of indeterminacy involving ‘the difficulty of confining the class of persons to whom a duty may be owed within reasonable limits • The need to preserve the coherence of other legal principles or other legal relationships Torts 031 LW5A

31. Reasonable Foreseeability + ? • In determining whether a duty of care is owed in a novel fact case, the courts use the test of reasonable foreseeability as established in Donoghue v Stevenson. • HOWEVER, while foreseeability of harm is essential,it is not a sole determinant of whether a duty of care exists. • What other factors are relevant? Torts 031 LW5A

32. ‘Where do we go from here?’ • The relevant problem will become the focus of attention in a judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a matter of principle • Identify the type of harm suffered by the P – e.g. nervous shock, pure economic loss • Consider the characteristics of the D’s conduct • Consider the nature of the relationship between the P and D and compare it to previous decisions which have , or have not, given rise to a duty of care Torts 031 LW5A

33. EXAMPLES of different classes of cases Need to consider existence and scope of duty • Nervous Shock – next Lecture 4(b) Tame v NSW; Annetts v Australian Stations Pty Ltd [2002] HCA 35 • Statutory Authorities -Lecture 5(a) Barclay Oysters Pty Ltd v Ryan [2002] HCA 54 Torts 031 LW5A

34. BREACH OF DUTY Lectures 5(b) & 6(a) • What is the standard of care? (Question of Law) TEST – reasonable person test What would the reasonable person do in the D’s position? • Has the standard of care been breached? (Question of Fact) TEST–reasonable foreseeability test (1) Was the risk of injury to the P reasonably foreseeable?If so – (2) Was the response of the D to this risk reasonable? Torts 031 LW5A

35. DAMAGE Damage is the gist of an action on the case therefore to sue in negligence there must be actual damage. The damage must be fit within a recognised category – -physical Economic psychological Torts 031 LW5A

36. DAMAGE- CAUSATIONLecture 6(b) & 7 (a) • CAUSATION IN FACT- Is there a relationship between D’s breach and P’s injury? (Question of Fact) TEST – ‘But for’ test applied in a commonsense way Torts 031 LW5A

37. DAMAGE – REMOTENESSLecture 7(b) • CAUSATION IN LAW – REMOTENESS The P’s loss must not be too remote. (Question of Law) TEST: reasonable foreseeability test –Could the D have reasonably foreseen that kind of loss? Torts 031 LW5A

38. REASONABLE FORESEEABILITY • The concept of foreseeability has found a role within each of the elements of duty, breach and damage but note the examination of reasonable foreseeability at the various stages, duty breach and damage gradually reduces in particularity Torts 031 LW5A

39. REASONABLEFORESEEABILITY Torts 031 LW5A

40. DEFENCESLectures 8(a)(b) • CONTRIBUTORY NEGLIGENCE • VOLENTI NON FIT INJURIA • ILLEGALITY Torts 031 LW5A

41. REMEDIES • Remember that unlike trespass actions, actions on the case are not actionable per se so the P must prove actual damage • Compensatory damages are available Torts 031 LW5A

42. ONUS OF PROOF • The onus of proof rests with the Pthroughout the cause of action in negligence. There is no shifting of the onus of proof onto the D as occurs in some trespass actions Torts 031 LW5A

43. FUTURE DIRECTIONSTort Reform or Tort Deform?Lecture 12(b) • Criticism leveled at the courts by the Trowbridge Report stating that they are changing the constitution of negligence • Alleged ‘drift in definition of negligence’ • Ipp Report ‘Review of Negligence’ • Legislation • – Civil Liability Act 2002 (NSW) _ Personal Injury Proceedings Act 2002 (Qld) Torts 031 LW5A

44. NEXT LECTURE DUTY OF CARE – NOVEL CATEGORY _ NERVOUS SHOCK – Tame & Annetts cases www.austli.edu.au/au/cases/cth/high_ct/ 2002/35.html (Copies also on reserve in the library) Torts 031 LW5A