LAW OF TORTS

1. LAW OF TORTS LECTURE 4 Negligent Trespass Negligence – Duty of Care Greg Younggreg.young@lawyer.com

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 • (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 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

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 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

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)

16. 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”

17. 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

18. 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

19. 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)

20. 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”

21. 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”

22. 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

23. 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)

24. 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

25. 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. ”

26. 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 ”

27. 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. ”

28. 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

29. 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-fighter’s Rule does not apply in Australia and the UK • Ogwo v Taylor (1988) AC 431

30. 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

31. 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

32. 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 Ripper’s 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) • D’Orta-Ekenaike –v- Victorian Legal Aid [2005] HCA 12 (advocates’ immunity upheld)

33. 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.

34. 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)

35. 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)

36. 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 (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)