The Law of Torts Negligence Particular Duty Areas: Abnormal Plaintiffs Unborn Children Mental Harm Rescuers

S5 CLA “negligence" means failure to exercise reasonable care and skill. “negligence" means failure to exercise reasonable care and skill.exercise

Negligence: The Elements Duty of care Breach Damage Negligence

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. 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? 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 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

General Principles: The CLA S 5B:(1) A person is not negligent in failing to take precautions against a risk of harm unless: 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 (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 (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person ’ s position would have taken those precautions. (c) in the circumstances, a reasonable person in the person ’ s position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. (d) the social utility of the activity that creates the risk of harm.

What is Reasonable Foreseeability? Reasonable foreseeability presupposes an objective or a reasonable person ’ s standard 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 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 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 Reasonable foreseeability is a question of law

Reasonable Foreseeability: Case Law Nova Mink v. Trans Canada Airlines [1951] (Air traffic noise causing minks to eat their young ones-No foreseeability) Nova Mink v. Trans Canada Airlines [1951] (Air traffic noise causing minks to eat their young ones-No foreseeability) United Novelty Co. v Daniels 42 So. 2nd 395 Miss 1949 Palsgraf v. Long Island R.R. Co. (1928) (Railway guards helping falling passenger-fireworks explosion causing injury to plaintiff.-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) Chapman v. Hearse (1961) (Car accident-Dr. stops to help-gets killed by another vehicle-action against D who caused initial accident- Foreseeability upheld)

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

The Unborn Child In general, a duty of care may be owed to P before birth In general, a duty of care may be owed to P before birth Watt v. Rama: “ the possibility of injury on birth to the child was… reasonably foreseeable…On the birth the relationship crystallised and out of it arose a duty on the D… ” Watt v. Rama: “ the possibility of injury on birth to the child was… reasonably foreseeable…On the birth the relationship crystallised and out of it arose a duty on the D… ” X v. Pal: Duty to a child not conceived at the time of the negligent act X v. Pal: Duty to a child not conceived at the time of the negligent act Lynch v. Lynch:Mother liable in neg to her own foetus injured as result of mother ’ s neg driving. Lynch v. Lynch:Mother liable in neg to her own foetus injured as result of mother ’ s neg driving.

( Per Gillard J in Watt v Rama) The unborn child: The unborn child: 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 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

Unforeseeable Plaintiffs In general the duty is owed to only the foreseeable plaintiff and not abnormal Plaintiffs. In general the duty is owed to only the foreseeable plaintiff and not abnormal Plaintiffs. Bourhill v Young [1943] AC 92 Bourhill v Young [1943] AC 92 Levi v Colgate-Palmolive Ltd Levi v Colgate-Palmolive Ltd Haley v L.E.B. [1965] AC 778 Haley v L.E.B. [1965] AC 778

Wrongful Birth Claims Claims by parents in respect of the birth of a child who would not have been born but for the D ’ s negligence. Claims by parents in respect of the birth of a child who would not have been born but for the D ’ s negligence. Vievers v Connolly (1995) 2 Qd R 325 (Mother of disabled child born bec. Pl lost opportunity to lawfully terminate pregnancy. Damages included costs for past & future care of child for 30 years.) Vievers v Connolly (1995) 2 Qd R 325 (Mother of disabled child born bec. Pl lost opportunity to lawfully terminate pregnancy. Damages included costs for past & future care of child for 30 years.) CES v Superclinics (1995-6) 38 NSWLR 47 Mother lost opportunity to terminate pregnancy as a result of D ’ s neg failure to diagnose pregnancy. NSW Ct of Appeal held claim maintainable but damages not to include costs of raising the chills as adoption was an option. CES v Superclinics (1995-6) 38 NSWLR 47 Mother lost opportunity to terminate pregnancy as a result of D ’ s neg failure to diagnose pregnancy. NSW Ct of Appeal held claim maintainable but damages not to include costs of raising the chills as adoption was an option. Melchior v Cattanach [2003] HCA Mother of healthy child after failed sterilization procedure. Qld CT Appeal held damages shld include reasonable costs of raising the child. High Ct agreed on appeal Melchior v Cattanach [2003] HCA Mother of healthy child after failed sterilization procedure. Qld CT Appeal held damages shld include reasonable costs of raising the child. High Ct agreed on appeal

CLA Part 11 s71 In any proceedings involving a claim for the birth of a child to which this Part applies, the court cannot award damages for economic loss for: (a) the costs associated with rearing or maintaining the child that the claimant has incurred or will incur in the future, or (b) any loss of earnings by the claimant while the claimant rears or maintains the child. (2) Subsection (1) (a) does not preclude the recovery of any additional costs associated with rearing or maintaining a child who suffers from a disability that arise by reason of the disability. In any proceedings involving a claim for the birth of a child to which this Part applies, the court cannot award damages for economic loss for: (a) the costs associated with rearing or maintaining the child that the claimant has incurred or will incur in the future, or (b) any loss of earnings by the claimant while the claimant rears or maintains the child. (2) Subsection (1) (a) does not preclude the recovery of any additional costs associated with rearing or maintaining a child who suffers from a disability that arise by reason of the disability.courtdamagescourtdamages

Wrongful Life Claims Claim by child born as a result of negligent treatment by De of child ’ s parent. Claim by child born as a result of negligent treatment by De of child ’ s parent. Bannerman v Mills (1991) ATR Summary dismissal of claim by child born with disabilities as result of mother having rubella whilst pregnant. Tort of wrongful life unknown to common law Bannerman v Mills (1991) ATR Summary dismissal of claim by child born with disabilities as result of mother having rubella whilst pregnant. Tort of wrongful life unknown to common law

Wrongful Life Claims Edwards v Blomeley; Harriton v Stevens; Waller v James (2002 ) NSW Supreme Court, Studdert J. Edwards v Blomeley; Harriton v Stevens; Waller v James (2002 ) NSW Supreme Court, Studdert J.  No duty of care to prevent birth  No duty of care to prevent birth  Policy reasons -  Policy reasons - 1. Sanctity & value of human life 1. Sanctity & value of human life 2. impact of such claim on self-esteem of disabled persons 2. impact of such claim on self-esteem of disabled persons 3. exposure to liability of mother who continued with pregnancy 3. exposure to liability of mother who continued with pregnancy 4. Plaintiffs ’ damage not recognizable at law - would involve comparison of value of disabled life with value of non- existence 4. Plaintiffs ’ damage not recognizable at law - would involve comparison of value of disabled life with value of non- existence 5. Impossibility of assessment of damages in money terms - taking non-existence as a point of comparison. 5. Impossibility of assessment of damages in money terms - taking non-existence as a point of comparison.

Abnormal Plaintiffs and Particularly Sensitive Plaintiffs To be liable, P must show that she/he was foreseeable. In general the abnormal P is not foreseeable To be liable, P must show that she/he was foreseeable. In general the abnormal P is not foreseeable There is a distinction to be drown between the abnormal Plaintiff and the particularly sensitive Plaintiff There is a distinction to be drown between the abnormal Plaintiff and the particularly sensitive Plaintiff

Abnormal Plaintiffs In general where D is negligent, D takes P as he /she finds P. Any unusual condition that aggravates the damage cannot be used by D as a defence In general where D is negligent, D takes P as he /she finds P. Any unusual condition that aggravates the damage cannot be used by D as a defence Haley v. London Electricity Bd. A blind P held not to be abnormal: D “ ought to anticipate the presence of such person within the scope and hazard of their operations ” Haley v. London Electricity Bd. A blind P held not to be abnormal: D “ ought to anticipate the presence of such person within the scope and hazard of their operations ”

Particularly Sensitive Plaintiff Where P suffers damage because of a particular sensitivity in circumstances where D ’ s conduct is not considered a breach, P cannot claim Where P suffers damage because of a particular sensitivity in circumstances where D ’ s conduct is not considered a breach, P cannot claim Levi. V Colgate Palmolive Levi. V Colgate Palmolive “ the bath salts supplied to P were innocuous to normal persons… the skin irritation which she suffered…was attributable exclusively to hypersensitiveness ” “ the bath salts supplied to P were innocuous to normal persons… the skin irritation which she suffered…was attributable exclusively to hypersensitiveness ”

CLA s 32 Mental harm--duty of care (1) A person ( the defendant ) does not owe a duty of care to another person ( the plaintiff ) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. (1) A person ( the defendant ) does not owe a duty of care to another person ( the plaintiff ) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. (2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following: (2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following: (a) whether or not the mental harm was suffered as the result of a sudden shock, (a) whether or not the mental harm was suffered as the result of a sudden shock, (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril, (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril, (c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril, (c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril, (d) whether or not there was a pre-existing relationship between the plaintiff and the defendant. (d) whether or not there was a pre-existing relationship between the plaintiff and the defendant.

Defective Premises In general the occupier of premises owes a duty of care to persons who come on to the premises In general the occupier of premises owes a duty of care to persons who come on to the premises While the notion of occupier's liability may have developed initially as a separate category of tort law, it now considered under the general principles of negligence While the notion of occupier's liability may have developed initially as a separate category of tort law, it now considered under the general principles of negligence Zaluzna v Australian Safeway Stores Zaluzna v Australian Safeway Stores Strong v Woolworths Limited [2012] HCA 5 Strong v Woolworths Limited [2012] HCA 5 Strong v Woolworths Limited [2012] HCA 5 Strong v Woolworths Limited [2012] HCA 5

Occupiers ’ Liability What are Premises? What are Premises? -Land and fixtures -Land and fixtures -but Cts have used wide interpretations including moveable structures eg: -but Cts have used wide interpretations including moveable structures eg: scaffolding (London Graving Dock v. Horton [1951] AC 737 scaffolding (London Graving Dock v. Horton [1951] AC 737 Ships and gangways eg. Swinton v. China Mutual Steam Navigation Co Ltd (1951) 83 CLR 553 Ships and gangways eg. Swinton v. China Mutual Steam Navigation Co Ltd (1951) 83 CLR 553