1. THE LAW OF TORTS
WEEKS 4-5

2. Negligence

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

4. Negligence: The element
Duty
Breach
Damage

5. 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

6. Duty of care

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

8. 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

9. 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

10. 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.

11. 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)

12. 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

13. When does the duty Arise?

14. 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.

15. 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

16. To whom do you Owe the Duty?

17. The Civil Liability Act 2002

18. 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.

19. What is a Foreseeable Risk?
S5B: A ‘risk of which the person knew or ought to have known’
It is actual knowledge or the ‘foresight of a reasonable person’

20. 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

21. The Scope of Reasonable Foreseeability: Case Law
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)

22. Chapman v. Hearse (1961)
(Car accident-Dr. stops to help-gets killed by another vehicle-action against D who caused initial accident- Foreseeability upheld)

23. Swift v Wearing-Smith [2016] NSWCA 38—10/03/2016
Respondent was injured when the glass panel of a balcony balustrade gave way due to a corroded bolt. By reference to s 5B, the primary judge found that the number of guests in close proximity to the balustrade made it reasonably foreseeable that there was a risk of harm from a failure of the balustrade and that the failure to take precautions to ensure the structural soundness of the balustrade was a breach of the appellant’s duty of care
On appeal:
Held: the risk of a failure of the balustrade due to a corroded bolt was not reasonably foreseeable. There was no evidence that the appellants had actual knowledge concerning a corroded bolt nor should they have known. 

24. Vincent v Woolworths Ltd [2016] NSWCA 40

25. Vincent v Woolworths: The Facts
Ms Christine Vincent, sustained injuries to her back and knee when she stepped into with a shopping trolley being pushed by a customer down an aisle in Woolworths’ supermarket at Narooma in New South Wales. At the time she was descending from a step ladder provided by Woolworths for her work
Ms Vincent lost her claim based on negligence both at trial and on appeal

26. South Sydney Rugby League Club Ltd v Gazis [2016] NSWCA 8—09/02/2016
The respondant injured his back when moving a large empty trolley. The primary judge found in favour of the respondent; appellant sought to challenge that finding on appeal.
Held: The requirement that a foreseeable risk be “not insignificant”, for the purposes of s 5B(1)(b), engages a set of considerations which are not at the same level of generality as would suffice for a finding of a foreseeable risk.
A risk that arises from the claimant’s carelessness, where foreseeable but quite unlikely to eventuate, is unlikely to satisfy s 5B(1)(b).
In the present case, the risk that a person would fall over if a force either insufficient or too great were applied, or if the person were careless in his or her grip was dismissed as insignificant.

27. To whom is the duty owed? Existing categories that give rise duty

28. DUTY CATEGORIES
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.

29. Examples of Established Categories
Consumers, users of products and structures
Donoghue v Stevenson
Grant v Australian Kitting Mills
Road users
Bourhill v Young
Users and purchasers of premises etc.
Australian Safeway Stores v Zaluzna

30. Examples of Established Categories
Rescuers
Chapman v Hearse (1961) 106 CLR 112
School children
Geyer v Downs (1977) 138 CLR 91
Purchasers or premises
Bryan v Maloney (1995) 128 ALR 163

31. Prenatal Harm and Wrongful Birth
Harm suffered by or caused to the baby while in the mother’s womb
Wrongful life:
Negligent failure to provide proper diagnosis or disclosure concerning the risk of giving birth to an infant with genetic or congenital abnormalities. Issue whether infant has right of action
Wrongful birth
Negligent failure to provide proper treatment to prevent birth

32. Prenatal Harm: The Issues

33. Prenatal Harm: 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 ( Per Gillard J in Watt v Rama)
Lynch v Lynch (1991)

34. Wrongful Life Waller v James 2002 Harriton v Stephens
Edwards v Blomeley

35. Harriton
born with maternal rubella. Mother had told her GP that she thought she was pregnant, but also thought she was ill with rubella. The pregnancy was confirmed but rubella was excluded.
It was common ground that in 1980 a reasonable medical practitioner would have informed Harriton’s mother of the risk that a foetus exposed to the rubella virus would be born with profound disabilities.
Waller
His condition was as a result of his father's anti-thrombin 3 deficiency being passed on to him during the process of IVF.

36. Main Issues( High Court)
Whether the medical practitioners owed a duty of care to the then unborn children to provide their mothers with information upon which the mothers could make an informed decision about termination or conception, and
Whether the harm suffered by the children, having been born, was capable of compensation within the law of negligence

37. The Decision of the High Court
Crennan J,: damage claimed by the plaintiffs was not amenable to determination by application of legal methodology:
'A duty of care cannot be clearly stated where the [child] can never prove' the actual damage claimed, the essential ingredient of the tort of negligence.'
In this way, the High Court found that the plaintiffs were not able to show legally recognisable damage, that is, a loss caused by an alleged breach of duty.
Consistent with the majority in the Court of Appeal, the High Court majority focused on the impossibility of comparing life with non-existence.
The Court also found that to comparison for damages assessment would create an 'unworkable legal fiction'.
The majority also found that a cause of action for wrongful life would be incompatible with common law values.

38. The Kirby Dissent
The foetus was clearly in the contemplation of the medical practitioner and the accepted duty to take reasonable care to avoid harm to a foetus would also extend to encompass a duty of care in the present circumstances.
Most of the instances where a duty was excluded, that finding was based on a more global consideration of not just duty, but causation and damage as a hole, as well as policy issues. Such a global consideration results in comparisons of life with disability to non-existence and this causes the duty argument to fail. Justice Kirby expressed a preference that the duty be considered at a more 'general level of abstraction'.

39. 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
Haley v L.E.B. [1965] AC 778

40. Haley v L.E.B. [1965] AC 778
Some workmen were digging a trench in a pavement. They went off to lunch. They had nothing to fence of the trench so they left a shovel and pick at one end and a punner at the other end to warn pedestrians. The claimant, a blind man, tripped on the punner and fell hitting his head. As a result of the fall he became deaf. The defendant argued they had done all that was necessary to warn an ordinary person of the danger and there was no need to take extra precautions for blind persons as it was not foreseeable that a blind person would be walking unaided down that street. Held: The defendant was in breach of duty. It was foreseeable that a blind person might walk down the street and they should be given appropriate protection. 

41. ‘Qualifications’ to the Duty of Crae
Novus Actus Interveniens: The Concept
Chapman v Hearse

42. Special duty categories under the CLA

43. 2 Areas of Interest
Public authorities
Mental Harm

44. Public Authorities

45. Public Authorities
(a)  the Crown (within the meaning of the Crown Proceedings Act 1988), or
(b)  a Government department, or
(c)  a public health organisation within the meaning of the Health Services Act 1997, or
(d)  a local council, or
(e)  any public or local authority constituted by or under an Act, or
(e1)  any person having public official functions or acting in a public official capacity (whether or not employed as a public official), but only in relation to the exercise of the person’s public official functions, or
(f)  a person or body prescribed (or of a class prescribed) by the regulations as an authority to which this Part applies (in respect of all or specified functions), or
(g)  any person or body in respect of the exercise of public or other functions of a class prescribed by the regulations for the purposes of this

46. Public Authorities
Roads and Maritime Services v Grant [2015] NSWCA 138—21/05/2015
Bathurst Regional Council (as Trustee for the Bathurst City Council Crown Reserves Reserve Trust) v Thompson [2012] NSWCA 340—26/10/2012
City of Liverpool v Turano & Anor [2008] NSWCA 270
Porter v. Lachlan Shire Council [2006] NSWCA 126
North Sydney Council v Roman [2007] NSWCA 27

47. Mental Harm

48. S27 CLA Mental harm: impairment of a person’s mental condition.
“consequential mental harm” means mental harm that is a consequence of a personal injury of any other kind.
“pure mental harm” means mental harm other than consequential mental harm.

49. Mental Harm
Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of New South Wales [2010] HCA 22 (16 June 2010)
Tame v NSW (2002) 211 CLR 317
Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317

50. Negligence: The element
Duty
Breach
Damage

51. Breach of Duty

52. Section 5B The Civil Liability Act 2002
(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;
(b) the likely seriousness of the 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.

53. “Calculus of Negligence” under 5B(2)
Probability of harm occuring if care not taken
Likely seriousness of harm
Burden of taking precautions
Social Utility
These are the different factors under 5B(2)
Go through some more cases under these now.

54. Breach of Duty What standard of care is owed? (Q of law)
Standard of care owed by the reasonable person in the circumstances
What would the reasonable person do in the D’s position
Duty breached
Did the D’s actions fail to meet that standard?
Was risk of injury to the P Reasonably foreseeable?
Degree of risk
Magnitude of harm
IF SO
Was the response of the d to this reasonable?
Calculus of negligence (from s5B) AND where relevant, consider
Reasonability of precautions
Social utility
Any relevant professional or statutory standards

55. Wyong Shire Council v Shirt (1980) 146 CLR 40
If reasonable person in defendant’s position would have foreseen risk to the P, then:
“... it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls
for a consideration of the magnitude of the risk
the degree of the probability of its occurrence, along with the expense,
difficulty and inconvenience of taking alleviating action and
any other conflicting responsibilities which the defendant may have.
It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.”