THE LAW OF TORTS WEEK 4

Negligence

NEGLIGENCE AND FAULT IN TORTS INTENTION TRESPASS NEGLIGENCE the action CARELESS

Negligence as Fault in Torts Tort Liability Fault Intention Negligence Strict liability

Negligence: The element Duty Breach Damage

The Elements Explained The Defendant owed the Plaintiff a duty of care They failed to take such care; and As a result the Plaintiff suffered loss or damage

Duty of care

Duty of Care: Scope What is ‘Duty of Care’ When does the duty arise To whom do you owe the duty

Donoghue v. Stevenson Decomposing snail in ginger beer--P has shock-gastroenteritis No privity of contract between P and D. Issue 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

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.

What is ‘Duty of Care?’ In my view, where a person knows or ought to know that his acts or omission may cause the loss or impairment of legal rights and that latter person is in no position to protect their rights there is a relationship giving rise to a duty of care (Perre v Apand [1999] HCA 36)

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

When does the duty Arise?

Lord Atkin: 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.

Anthony Mason: Wyong v Shirt prima facie a duty of care arises on the part of a defendant to a plaintiff when there exists between them a sufficient relationship …, such that a reasonable man in the defendant's position would foresee that carelessness on his part may be likely to cause damage to the plaintiff

To whom do you Owe the Duty?

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: Consumers, users of products and structures Donoghue v Stevenson Grant v Australian Kitting Mills Bryan v Maloney Road users Bourhill v Young Users and purchasers of premises etc. Australian Safeway Stores v Zaluzna

The Civil Liability Act 2002

General Principles: 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 not insignificant, and (c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.