Understanding the Law of Negligence: Elements, Tests, and Case Studies

1. Week 4 The Law of Torts

2. Definition of Tort A civil wrong Primarily drawn from common law

3. Aim of the Law of Torts To compensate a person who has suffered a loss Only certain rights protected Physical safety – trespass to person\negligence Ownership of land and goods – trespass\negligence Quiet enjoyment of land - nuisance Reputation - defamation Goodwill of a business – passing off Is there one broad law of Tort or many narrow ones?

4. Types of Liability Strict liability Fault liability No-fault liability Vicarious liability

5. Torts The Law of Negligence

6. Definition Conduct falling below the standard demanded for the protection of others against unreasonable risk of harm This means that a person can sue for negligence when he is injured by another person who either: Did an act which a reasonable person in the circumstances would not have done (an act of negligence); or Failed to do an act that a reasonable person in the circumstances would have done (negligence by omission); and that action or failure caused the injury.

7. Elements of Negligence Defendant owed a duty of care to the plaintiff to take reasonable care to prevent him for suffering injury, loss or damage There was a breach of the duty of care by failing to adhere to the standard of care expected The breach of duty caused damage to the plaintiff The plaintiff suffered damage that was of a kind which was reasonably foreseeable i.e. was not too remote

8. Duty of Care The legal tests for duty of care differ depending on the type of loss Physical Nervous Shock Financial

9. Duty of Care – Physical Damage Two part test: Reasonable foresesability test Proximity relationship test

10. Reasonable foresesability test A reasonable person, in the circumstances of the defendant, would have reasonably foreseen that because of his actions there was a risk of injury to the plaintiff, or to a class of persons of whom the plaintiff was a member

11. Reasonable foresesability test (cont.) BEFORE the damage occurred, a reasonable person could foresee SOME kind of damage COULD occur Donoghue v Stevenson (S&OR p17) Grant v Australian Knitting Mills (S&OR p23) Levi v Colgate-Palmolive (S&OR p19)

12. Proximity Test There was sufficient proximity or closeness between the plaintiff and the defendant This limits the Reasonable Foresesability test Used to limit duty of care on public policy grounds The “neighbour” test Donoghue v Stevenson (S&OR p18)

13. Proximity Test Deane J in Jaensch v Coffey (P p 384) stated that proximity could be established in one of 3 ways: Physical proximity Circumstantial proximity Causal proximity

14. Duty of Care – Financial Loss Recovery of “pure economic loss” was denied by the courts for many years as: No duty of care Damage too remote Donoghue v Stevenson was confined to physical damage Economic effects may be more extensive than physical effects

15. Duty of Care – Financial Loss (cont.) Now allowed, but very narrow Hedley Byrne V Heller & Partners (S&OR p49) Difficult to Develop tests to avoid too onerous a duty

16. Duty of Care – Financial Loss (cont.) Some suggested limits; Whether plaintiff belonged to a determinate or an indeterminate class Plaintiff’s vulnerability & dependency on defendant Defendant’s knowledge of plaintiff’s vulnerability Whether defendant assumed responsibility for the risk being taken by the plaintiff

17. Duty of Care – Financial Loss (cont.) Cases: Perre v Apland (S&OR p21) Agar v Hyde (S&OR p21)

18. Duty of Care Some cases where a duty of care is readily recognised Employers owe a duty to employees to provide a safe working environment Teachers owe a duty of care to their pupils Drivers owe a duty of care to others using the road Occupiers of land owe a duty to those on their land Professional persons owe a duty to their clients Manufacturers owe a duty to the ultimate consumer Bailees owe a duty to the bailor of goods

19. Duty of Care Parliaments have added occasions where a duty of care is owed Clarified common law duties Restricted common law rights Altered the standard of care

20. Breach of Duty Defendants will breach their duty of care if they fail to live up the standard of care expected in the circumstances An objective test

21. Breach of Duty (cont.) Two stage process: Would a reasonable person believe that the risk of injury to the plaintiff was reasonably foreseeable; and Would a reasonable person have responded to that risk at all and, if so, how. Then actions of defendant are compared with what a reasonable person would\would not have done

22. Breach of Duty (cont.) The degree of care expected in any particular case depends on all the surrounding circumstances May vary according to: amount of risk, and seriousness of the injury foreseen If a person claims special skills then they must live up to the standard of the reasonable expert in that field

23. The Standard of Care Factors in assessing the standard of care: Probability of the risk occurring O’Dwyer v Leo Buring (S&OR p22) Bolton v Stone (P p391) Gravity of the injury Paris v Stepney (P p390) Rasbora v JCL Marine Ltd (S&OR p 23) Adelaide Chemical v Carlyle (S&OR p24)

24. The Standard of Care Practicability and cost of eliminating risk Lattimer v AEC (P p393) Norton v Streets Ice Cream (S&OR p24) Age and capacity of the plaintiff Social value of defendant’s action Watt v Hertfordshire (P p392) Common practice

25. S14b Wrongs Act (Vic) (4) In determining if the duty of care [for Occupiers] has been discharged consideration shall be given to- the gravity and likelihood of the probable injury; the circumstances of the entry onto the premises; the nature of the premises; the knowledge which the occupier has or ought to have of the likelihood of persons or property being on the premises; the age of the person entering the premises;

26. S14b Wrongs Act (Vic) (cont.) the ability of the person entering the premises to appreciate the danger; the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.