HOW LIABILITY IS DETERMINED FOR NEGLIGENCE

HOW LIABILITY IS DETERMINED FOR NEGLIGENCE DUTY OF CARE STANDARD OF CARE CAUSATION

CAUSATION WHETHER THE DEFENDANT'S ACT OR OMISSION WAS THE CAUSE OF THE PLAINTIFF'S INJURIES OR HARM SUFFERED? SIMPLE TEST DEVELOPED TO DETERMINE CAUSATION IS THE "BUT FOR" TEST QUESTION FOR THE TEST: BUT FOR THE DEFENDANT'S ACTIONS OR OMISSIONS, WOULD THE PLAINTIFF HAVE SUFFERED DAMAGE? ONUS OF PROVING THIS IS ON THE PLAINTIFF

BARNETT v CHELSEA HOSPITAL FACTS: P's HUSBAND BECOME ILL AFTER DRINKING SOME TEA - WENT TO THE DEFENDANT HOSPITAL BUT DOCTOR ON CALL WAS HIMSELF NOT WELL & ASKED THE NURSE TO TELL HIM TO GO HOME AND SEE HIS OWN DOCTOR - THE MAN WAS IN FACT SUFFERING ARSENIC POISONING & DIED HELD: HOSPITAL OWED A DUTY OF CARE AND WAS IN BREACH OF THE STANDARD OF CARE BUT - IT WAS NOT LIABLE AS P DID NOT PROVE THAT BUT FOR THE HOSPITAL'S NEGLIGENCE HER HUSBAND WOULD NOT HAVE DIED

IMPORTANT TO NOTE THAT THE HIGH COURT IN AUSTRALIA HAS EMPHASISED THAT THE BUT FOR TEST IS NOT AN EXCLUSIVE TEST FOR CAUSATION. OTHER TEST MAY ALSO BE USED. E.g. WHETHER THE DEFENDANT’S ACTS OR OMISSIONS CAUSED OR MATERIALLY CONTRIBUTED TO THE PLAINTIFF’S LOSS, DAMAGE OR INJURY SEE ALSO L-4-130; GF-P.137 CORK v KIRBY MCLEAN LTD YATES v JONES LINDEMAN v COLVIN

CIVIL LIABILITY REFORM LAW CIVIL LIABILITY REFORM LAWS HAVE MODIFIED ‘CAUSATION’ AND NOW PROVIDE THAT TESTS SHOULD BE: IF DEFENDANT HAD ACTED CAREFULLY WOULD PLAINTIFF HAVE SUFFERED HARM? AND IS IT APPROPRIATE FOR THE LIABILITY TO EXTEND TO THE HARM?

HOW LIABILITY IS DETERMINED FOR NEGLIGENCE DUTY OF CARE STANDARD OF CARE UNREALISTIC TO HOLD THE DEFENDANT LIABLE FOR A NEVER-ENDING CHAIN OF EVENTS - THEREFORE LIABILITY IS LIMITED BY THE REMOTENESS OF DAMAGE TEST CAUSATION REMOTENESS OF DAMAGE

WAGON MOUND NO:1L-4-140; GF-p.140 CALTEX REFINERY DOCKS WAGON MOUND OIL

WAGON MOUND NO:1 TEST: DAMAGE MUST BE OF A TYPE THAT A REASONABLE PERSON WOULD HAVE FORESEEN AND IT DOES NOT MATTER THAT THE EXTENT OF DAMAGE WAS NOT FORESEEABLE If YES - liable for that TYPE or KIND of reasonably foreseeable damage and EXTENT or AMOUNT of damage is immaterial Is type of damage foreseeable?

If YES - liable for that TYPE or KIND of reasonably foreseeabledamage and EXTENT or AMOUNT of damage is immaterial Is type of damage foreseeable? What is reasonably foreseeable? DISCUSSED IN WAGON MOUND NO: 2 IF THERE WAS A REAL AND NOT A FAR-FETCHED RISK OF DAMAGE AND IT COULD BE ELIMINATED WITHOUT ANY DIFFICULTY, DISADVANTAGE OR EXPENSE THE DEFENDANT WOULD BE LIABLE

OTHER RULES THAT MAY AFFECT DAMAGES “THIN-SKULLED” OR “EGG-SHELL” RULE. YOU MUST TAKE YOUR VICTIM AS YOU FIND HIM/HER WOULD THIS RULE CONTRADICT THE REMOTENESS OF DAMAGE RULE AS PROPOUNDED IN WAGON MOUND NOS: 1 & 2?

SMITH v LEECH BRAIN & CO LTD FACTS: PLAINTIFF'S HUSBAND WAS A CRANE DRIVER AND SUFFERED A BURNT LIP FROM SOME MOLTEN METAL AT WORK. IT TURNED CANCEROUS AS HE HAD A SUSCEPTIBILITY TO CANCER - HE DIED HELD:THE BURN WAS A FORESEEABLE CONSEQUENCE OF THE DEFENDANT’S NEGLIGENCE. THE DEFENDANT WAS LIABLE EVEN THOUGH THE DEATH, IN ITSELF, WAS NOT A REASONABLY FORESEEABLE CONSEQUENCE.

SMITH v LEECH BRAIN & CO LTD IT DID NOT CONTRADICT THE "THIN SKULL” RULE - ONLY TYPE OF DAMAGES MUST BE FORESEEABLE NOT EXTENT TEST HERE WAS NOT WHETHER THE BURNS WOULD CAUSE CANCER BUT WHETHER THE NEGLIGENT ACT WOULD CAUSE BURNS? CONSEQUENCES WERE IMMATERIAL TO DETERMINE LIABILITY

SMITH v LEECH BRAIN & CO LTD ACCORDING TO WAGON MOUND NO:1 YES - the TYPE or KIND of harm (i.e. burns) was reasonably foreseeable Is type of damage foreseeable? What is reasonably foreseeable? AS DISCUSSED IN WAGON MOUND NO: 2 THERE WAS A REAL AND NOT A FAR-FETCHED RISK OF BURNS BEING CAUSED BY THE NEGLIGENT ACT DEATH WAS CAUSED BECAUSE VICTIM HAD A SUSCEPTIBILITY TO CANCER EXTENT OF DAMAGE IMMATERIAL & THIN SKULL RULE APPLIED: YOU TAKE YOUR VICTIMS AS YOU FIND THEM

OTHER RULES THAT MAY AFFECT DAMAGES NOVUS ACTUS INTERVENIENS WHERE A NEW INTERVENING ACT TAKES PLACE AFTER THE DEFENDANT’S NEGLIGENCE AND IS THE “PROXIMATE” OR “ACTUAL” CAUSE OF THE PLAINTIFF’S DAMAGE

HOW LIABILITY IS DETERMINED FOR NEGLIGENCE DUTY OF CARE STANDARD OF CARE CAUSATION REMOTENESS OF DAMAGE DEFENCES

DEFENCES ONCE A PRIMA FACIE CASE HAS BEEN ESTABLISHED THE DEFENDANT CAN STILL RESIST, REBUT OR REDUCE LIABILITY BY RELYING ON A NUMBER OF DEFENCES VOLENTI NON FIT INJURIA - VOLUNTARY ASSUMPTION OF RISK CONTRIBUTORY NEGLIGENCE

VOLENTI NON FIT INJURIA - VOLUNTARY ASSUMPTION OF RISK L-4-170; GF-p.142 TO BE EFFECTIVE THE CONSENT MUST BE TO THE FULL RISK AND MERE KNOWLEDGE OF THE RISK IS INSUFFICIENT IT IS A TOTAL DEFENCE AND THE PLAINTIFF WILL GET NOTHING IF IT IS SUCCESSFULLY ESTABLISHED BY THE DEFENDANT

SMITH v BAKER & SONS FACTS: P EMPLOYED BY D AS A BUILDING WORKER. HE WORKED IN A PLACE WHERE, OCCASIONALLY, A CRANE LIFTED ROCKS & STONES OVER HIS HEAD. HE WAS AWARE OF THE RISK POSED - A ROCK FELL & INJURED HIM HELD: THE MERE FACT THAT P HAD FULL KNOWLEDGE AND UNDERSTANDING OF THE RISK DID NOT PRECLUDE HIM FROM RECOVERING THE DAMAGES - TO SUCCESSFULLY RAISE THE DEFENCE OF VOLUNTI NON FIT INJURIAD MUST SHOW THAT PCONSENTED TO THE RISK.

O'SHEA v PERMANENT TRUSTEE CO. OF NSW LTD FACTS:P WAS A PASSENGER IN A CAR DRIVEN BY F THE INSURED OF D - BOTH P & F HAD BEEN DRINKING - F HAD BLOOD ALCOHOL LEVEL OF 0.15 - P HAD NOT BEEN WITH F THROUGHOUT THE EVENING & DID NOT KNOW HOW MUCH HE HAD HAD TO DRINK. HELD:P HAD A PERCEPTION OF THE DANGER BUT THAT DOES NOT ESTABLISH VOLUNTI FOR THERE MUST BE FULL COMPREHENSION OF ITS EXTENT - WHICH WAS NOT ESTABLISH BY THE FACTS. P WAS 25 % TO BE BLAMED.

CONTRIBUTORY NEGLIGENCE L-4-160; GF-p.141 AT COMMON LAW NO DAMAGES WERE PAYABLE IF CONTRIBUTORY NEGLIGENCE WAS ESTABLISHED CRITICISMS OF THE RULE RESULTED IN THE PASSING IN THE UK OF THE LAW REFORM (CONTRIBUTORY NEGLIGENCE) ACT 1945 WHICH WAS ESSENTIALLY FOLLOWED IN W.A. BY THE LAW REFORM (CONTRIBUTORY NEGLIGENCE AND TORTFEASORS' CONTRIBUTION) ACT IN 1947 ACT ESSENTIALLY PROVIDES THAT DAMAGES CAN NOW BE APPORTIONED TAKING INTO ACCOUNT THE DEGREE OF CONTRIBUTORY NEGLIGENCE OF THE PLAINTIFF

LIABILITY FOR PURE ECONOMIC LOSS FOR NEGLIGENT MISSTATEMENTS AND NEGLIGENT ACTS

PURE ECONOMIC LOSS FOR NEGLIGENT MIS-STATEMENT YOU WILL PASS BUS165!

HOW LIABILITY IS DETERMINED FOR NEGLIGENT MISSTATEMENT DUTY OF CARE FOR GENERAL NEGLIGENCE A LEGAL RELATIONSHIP OR OBLIGATION MUST BE ESTABLISHED FOR NEGLIGENT MISSTATEMENT A “SPECIAL” RELATIONSHIP OR OBLIGATION MUST BE ESTABLISHED

NEGLIGENT MISSTATEMENTS HEDLEY BYRNE v HELLERL-4-240; GF-p.164 HELD: THERE COULD BE A DUTY OF CARE WITH RESPECT TO NEGLIGENT MISSTATEMENT BUT IT WAS NOT TO BE AS WIDE AS THE "FORESIGHT" TEST USED FOR NEGLIGENT ACTS FOR NEGLIGENT MISSTATEMENTS - DUTY OF CARE ONLY AROSE IF THERE WAS A "SPECIAL RELATIONSHIP" BETWEEN THE INQUIRER AND MAKER OF THE STATEMENT

NEGLIGENT MISSTATEMENTS • THIS SPECIAL RELATIONSHIP EXISTED ONLY WHEN:- • THE INQUIRER TRUSTED THE MAKER TO TAKE SUCH DEGREE OF CARE AS THE CIRCUMSTANCES REQUIRED • IT WAS REASONABLE FOR THE INQUIRER TO TRUST THE MAKER • MAKER GAVE THE ADVICE KNOWING OF THE TRUST • ADVICE GIVEN IN RESPONSE TO A SPECIFIC ENQUIRY • INFORMATION USED FOR THE PURPOSE OF THE ENQUIRY • NO DISCLAIMER OF RESPONSIBILITY

NEGLIGENT MISSTATEMENTS LIMITED TO A RELATIONSHIP GENERAL NEGLIGENCE LIMITED TO A “SPECIAL” RELATIONSHIP NEGLIGENT MISSTATEMENT THERE WILL BE ADDITIONAL REQUIREMENTS TO ESTABLISH A DUTY OF CARE

NEGLIGENT MISSTATEMENTS IS THIS DUTY OWED ONLY BY PERSONS WHOSE BUSINESS IT IS TO GIVE ADVICE OR DOES EVERYONE WHO GIVES INFORMATION HAVE AN OBLIGATION TO BE CAREFUL?

NEGLIGENT MISSTATEMENTS L SHADDOCK & ASSOCIATES PTY LTD v PARRAMATTA CITY COUNCIL L-4-260; GF-p.165 Facts: Purchasers, before buying the property in question for redevelopment, had inquired from the Municipal Council if property was proposed to be affected by any road widening or re-alignment proposals. In the certificate issued by the Council it failed to disclose that the land would be subject to road widening. In reliance on the certificate the purchasers bought the property.

NEGLIGENT MISSTATEMENTS HELD: THE PERSON GIVING INFORMATION TO ANOTHER WHOM S/HE KNOWS WILL RELY UPON IT IN CIRCUMSTANCES IN WHICH IT IS REASONABLE TO DO SO, IS UNDER A DUTY TO EXERCISE REASONABLE CARE THAT THE INFORMATION GIVEN IS CORRECT INFORMATION

NEGLIGENT MISSTATEMENTS SHADDOCK'S CASE IN FACT APPROVED THE MINORITY VIEW IN MLC v EVATT[L-4-260; GF-p.165] MINORITY IN M.L.C. v EVATT HELD THAT IF THE INFORMATION WAS GIVEN AS PART OF A BUSINESS ARRANGEMENT THERE MAY BE A DUTY OF CARE REGARDLESS OF WHETHER IT IS THE BUSINESS OF THE DEFENDANT TO GIVE ADVICE

NEGLIGENT MISSTATEMENTS • THE FOLLOWING TESTS MUST BE APPLIED TO DETERMINE DUTY OF CARE: • SPEAKER MUST OR OUGHT TO REALISE THAT S/HE IS BEING TRUSTED BY THE RECIPIENT FOR THE ADVICE • SUBJECT MATTER MUST BE OF A SERIOUS OR BUSINESSNATURE • SPEAKER MUST OR OUGHT TO REALISE THAT RECIPIENT INTENDS TO ACT ON THE ADVICE/INFORMATION GIVEN • IT IS REASONABLE IN ALL THE CIRCUMSTANCES FOR THE RECIPIENT TO SEEK/ACCEPT/RELY ON THE UTTERANCE OF THE SPEAKER

NEGLIGENT MISSTATEMENTS THE TORT OF NEGLIGENT MISSTATEMENT DEFINITELY EXISTS AND A PERSON WHO MAKES A STATEMENT DIRECTLYOR INDIRECTLY TO ANOTHER, IN CIRCUMSTANCES WHERE S/HE KNOWS, OR SHOULD KNOW, THAT IT WILL BE RELIED UPON OWES A DUTY OF CARE TO THAT OTHER PERSON.

DUTY OF CARE DONOGHUE v STEVENSON HEDLEY BYRNE v HELLER & PARTNERS SHADDOCK v PARRAMMATTA CITY COUNCIL QUALIFIED LIMITED BASED ON THE NEIGHBOUR PRINCIPLE: PROXIMITY + REASONABLE FORESIGHT THE MAKER OF THE STATEMENT IS TRUSTED AND THERE IS RELIANCE UPON THAT STATEMENT ANYONE WHO GIVES SERIOUS OR BUSINESS ADVICE IN CIRCUMSTANCES WHERE IT MAY BE RELIED UPON IS LIABLE

PURE ECONOMIC LOSS FOR NEGLIGENT ACTS

CALTEX OIL (AUST) PTY LTD v THE DREDGE “WILLEMSTAD L-4-215 FACTS:A PIPELINE OWNED BY A THIRD-PARTY WAS DAMAGED BY THE DEFENDANT’S NEGLIGENT HANDLING OF THE DREDGE “WILLEMSTAD”. THE OIL WAS NEEDED BY PLAINTIFF WHO HAD TO TRANSPORT THE OIL BY ALTERNATIVE MEANS AT A CONSIDERABLE EXPENSE. HELD: CALTEX OIL COULD RECOVER THE ECONOMIC LOSS SUFFERED EVEN THOUGH THERE HAS BEEN NO PERSONAL INJURY OR DAMAGE TO THE PLAINTIFF’S PROPERTY. A CLAIM SUCH AS THIS CAN ONLY BE MADE WHERE THE DEFENDANT KNOWS OR OUGHT TO KNOW THAT A SPECIFIED PERSON IS LIKELY TO SUFFER LOSS IF S/HE IS NEGLIGENT.

JUNIOR BOOKS LTD v VEITCHI CO LTD L-4-215 FACTS:THE DEFENDANTS LAID A DEFECTIVE FLOOR IN THE PLAINTIFF’S FACTORY WHICH CRACKED A COUPLE OF YEARS LATER. THE COST OF REPLACEMENT OF THE ENTIRE FLOOR OF £200,00 WAS CLAIMED HELD: ALTHOUGH THERE WAS NO PHYSICAL INJURY SUFFERED THE DEFENDANT FLOORLAYERS WERE LIABLE FOR THE ECONOMIC LOSS OF £200,00 + ANY CONSEQUENTIAL LOSS OF PROFITS DURING THE PERIOD THAT THE BUSINESS WOULD BE CLOSED FOR THE RELAYING OF THE FLOOR.

HAWKINS v CLAYTON L-4-215 FACTS:THE DEFENDANT SOLICITORS HAD DRAFTED THE WILL OF THE DECEASED BUT FAILED TO INFORM THE EXECUTOR (WHO WAS ALSO THE PRINCIPAL BENEFICIARY) OF THE WILL UNTIL SIX YEARS LATER. THE HOUSE LEFT TO THE PLAINTIFF HAD BECOME RUNDOWN AND MOST OF THE FURNITURE STOLEN HELD: ALTHOUGH THERE WAS NO PHYSICAL INJURY SUFFERED THE DEFENDANTS WERE LIABLE FOR THE ECONOMIC LOSS SUSTAINED BY THE PLAINTIFF NOTE: A BARRISTER IS PROTECTED BY LEGAL IMMUNITY FOR ANY WORK DONE IN COURT

END OF LECTURES ON LAW OF TORTS

HOW TO ESTABLISH LIABILITY UNDER THE GENERAL LAW OF NEGLIGENCE IS THERE A DUTY OF CARE OWED? Is there a legally recognised relationship between the plaintiff and the defendant that brings them within the "neighbour principle" discussed in Donogue v Stevenson? Here discuss briefly the facts of Donogue v Stevenson and the statement mentioning the "neighbour principle" Explain too that the scope of the "neighbour principle" is limited by the test of proximity which in turn depends on the test of reasonable foresight.

HOW TO ESTABLISH LIABILITY UNDER THE GENERAL LAW OF NEGLIGENCE HAS THE STANDARD OF CARE BEEN BREACHED? Standard of care is measured according to the standard that would be observed by a reasonable person. Standard is not an absolute standard to take care against all risks (discuss Glasgow Corp. v Muir) but only against those that are highly probable; possible; or where there is a material risk. Does not include damage that may be foreseeable but is highly improbable (discuss Bolton v Stone). Standard is also dependent on other attributes of the plaintiff [see Paris v Stephen Borough Council L-4-100]

HOW TO ESTABLISH LIABILITY UNDER THE GENERAL LAW OF NEGLIGENCE HAS DAMAGE RESULTED FROM THE BREACH OF THE STANDARD OF CARE? Prove that there was causation - a connection between the breach in the standard of care and the damage suffered. Test used is the "but for" test. Discuss Barnett v Chelsea Hospital or Cork v Kirby MacLean Ltd or Yates v Jones.

HOW TO ESTABLISH LIABILITY UNDER THE GENERAL LAW OF NEGLIGENCE IS THE DAMAGE SUFFERED TOO REMOTE? Here discuss that according to Wagon Mound No:1 only type/kind of damage that is reasonably foreseeable will be allowed. The degree of foreseeability of that type/kind of damage is limited by Wagon Mound No: 2 which states that the risk of damage should be real and not far fetched and could have been avoided by a reasonable person without too much expense or effort.

HOW TO ESTABLISH LIABILITY UNDER THE GENERAL LAW OF NEGLIGENCE ARE THERE ANY DEFENCES AVAILABLE TO THE DEFENDANT? Here discuss such defences as contributory negligence and volunti non fit injuria if applicable.

SOME ADVICE PLEASE READ THE INSTRUCTIONS CAREFULLY NO REFERENCING REQUIRED IN EXAMS

AUTHORITIES SHOULD NOT BE MERELY CITED BUT DISCUSSED The case example here is Carlill v Carbolic Smoke Ball Co. case The case applicable here is Carlill v Carbolic Smoke Ball Co. case where a lady responded to an advertisement in a newspaper which stated that if any person were to take the smoke ball over a fixed period of time they would be cured of the flu. To show their sincerity in this matter the advertisers deposited £100 in a bank. The court held that in this case ................

Make firm reasonable presumptions based on the facts of a problem and not all possible assumptions • Make firm conclusions • Names of cases cited should be either highlighted or underlined • Start each new point/argument on a new paragraph • Every new section and question should be started on a new page • Do not discuss non-issues - confine yourself to the issues - do not discuss the obvious

REMEMBER • Examiners will be looking for • ISSUES, whether legal concepts introduced have been defined/explained • LEGAL ARGUMENTS, • LEGAL AUTHORITIES in support of those arguments • FIRM CONCLUSIONS

TORT LAW • General Negligence • Duty of Care • Standard of Care • Causation • Defences – • Contributory Negligence • Remoteness of Damages

Donoghue v Stevenson Bolton v Stone Wagon Mound I & II Paris v Stephen Borough Council Barnett v Chelsea Hospital Glasgow Corp. v Muir Nagle v Rottnest Island Authority Mercer v Commissioner For Transport & Tramways (NSW) NOTE - LIST IS NOT EXHAUSTIVE!

END OF COMMERCIAL LAW LECTURES FOR THIS SEMESTER GOODBYE AND GOOD LUCK IN YOUR EXAMINATIONS

HOW LIABILITY IS DETERMINED FOR NEGLIGENCE