1. THE LAW OF TORTS
WEEK 4

2. Negligence

3. NEGLIGENCE AND FAULT IN TORTS
INTENTION
TRESPASS
NEGLIGENCE
the action
CARELESS

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

5. Negligence: The element
Duty
Breach
Damage

6. 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

7. Duty of care

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

9. 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

10. 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

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.

12. 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)

13. 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

14. When does the duty Arise?

15. 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.

16. 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

17. To whom do you Owe the Duty?

18. 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

19. The Civil Liability Act 2002

20. 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.