Negligence cases

What are the estavlished categories

road users, manufactueres/consumers, medical practitioners/patients, ocupier/emtramt, employer/employee

What reasonable forseeability is duty of car concerned with

reasonable forseeability for the class of plaintiff

Chapman v hearse

• D1, Chapman driving carelessly and collides with another vehicle + is thrown from the car

• Plaintiff, Dr Cherry, is a medical doctor driving on the road + goes to the aid of Chapman

• Defendant 2, Hearse is driving along the road too fast – he strikes and kills Dr Cherry

• Plaintiff’s family bring action to claim compensation for wrong to their family member

• Plaintiff originally sues Hearse

• Hearse sues Chapman whose original driving caused the chain of events

Was injury to Dr Cherry reasonably foreseeable to Chapman?

Decision: the risk was reasonably foreseeable 

‘In order to establish the prior existence of a duty of care with respect to a plaintiff subsequently injured as the result of a sequence of events following a defendant’s carelessness it is not necessary for the plaintiff to show that the precise manner in which his injuries were sustained was reasonable foreseeable; it is sufficient if it appears that injury to a class of persons of which he was one might reasonably have been foreseen as a consequence.’

Donohue v stevenson

• Defendant, Stevenson, is the manufacturer of opaque bottles of ginger beer -these are sold to distributors and then shopkeepers

• Plaintiff, Mrs Donoghue was given a ginger beer by her friend bought from a shop

• Mrs Donoghue consumes ginger beer, pouring it into a cup – she comes across a decomposed snail

•  Plaintiff suffers from gastroenteritis + sues for negligence

Decision: P successful in the appellate court

Lord Atkin’s ‘neighbour principle’ “you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”

Your neighbour: “persons who are so closely and directly affected by my act that I ought reasonable to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in to question.”

Duty of care can arise without a contractual relationship

Sydney water corporation v turano

• Plaintiff, Mrs Turano. Defendant 1 – Sydney Water. Defendant 2 – Council

• 1980s – Sydney water lays water pipe across a culvert (ditch) running parallel to the road

• In 2000s - plaintiff and their family driving on the road and tree falls directly on their car – Mr Turano is killed

• Reason for tree falling: water pipe blocked water + hence, caused water to gather

•  led to the rotting of the tree roots

• Tree was growing on land owned by the council

• Trial judge found local council liable – these decisions revered by NSW Court of Appeal – Sydney Water found liable

• Sydney water appealed to the High Court

Was the council responsible, based on their conduct, for the eventual injury of the Turano family?

Decision: Sydney Water had not legal duty of care to the Turanos “Reasonably foreseeability of the class of injury is an essential condition of a legal obligation to take care for the benefit of another.”

“The point to be made is that the laying of the water main in this location did not create an immediate risk of harm to road users. The temporal relation between Sydney Water’s conduct and Mrs Turano’s injury was relevant to the determination of whether the relationship between them gave rise to a duty.”

When to refer to complex duty

1. It is D’s omission (failure to act/take precautions to avoid harm to P) AND/OR

2. The source of risk is not D’s own conduct but that of another person/s, where P says that D had some special responsibility to protect P from harm from that other source AND/OR

3. Harm is not physical in nature, but rather derivative/indirect or pure - pure mental harm: go to statute

Sullivan v moody

Facts Plaintiffs were suspected of abusing their children; investigated and ultimately no charges were laid Claimed that Ps suffered shock, distress, psychiatric injury, financial loss Sued the investigators Decision: Plaintiffs unsuccessful in claiming D owed Duty of care Key points Established that ‘foreseeability is not enough’ (salient features needed) “But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists.” - investigators already have duties aimed at child protection; a negligence duty to suspects would pull this duty in the opposite direction

Godfrey v nsw

Facts

• Prisoner escaped jail and entered news agency where pregnant P was working

• Prisoner held P at gunpoint and demanded money

• P suffered shock and 8 days later gave birth to child who suffered disabilities brought about by his premature birth

Key points

Decision: no established duty of care owed by a prison authority to prevent harm caused by an escaped prisoner beyond the immediate vicinity of a jail

“the duty it would appear is owed to the public at large”

Modbury triangle v anzil

•  P went out to his car at end of shift at night (where lights were turned off in the car park) and was brutally beaten by three people

•  P sued proprietor of shopping centre

• P successful in trial and appeal to SA Full Court

• Did D (the proprietor of the shopping centre) owed a duty of care relevant to the kind of harm suffered by P?

Decision: D successful in appeal to High Court – Modbury was not liable because they cannot control a third party

• “The control and knowledge which form the basis of an occupier’s liability in relation to the physical state or condition of land are absent when one considers the possibility of criminal behaviour on the land by a stranger.”

• “The unpredictability of criminal behaviour is one of the reasons why, as a general rule, and in the absence of some special relationship, the law does not impose a duty to prevent harm to another from the criminal conduct of a third party, even if the risk of such harm is foreseeable.”

Sydney water corporation v turano

• Plaintiff, Mrs Turano

• Defendant 1 – Sydney Water

• Defendant 2 – Council

• 1980s – Sydney water lays water pipe across a culvert (ditch) running parallel to the road

• In 2000s - plaintiff and their family driving on the road and tree falls directly on their car – Mr Turano is killed

• Reason for tree falling: water pipe blocked water + hence, caused water to gather – led to the rotting of the tree roots. Tree was growing on land owned by the council

• Trial judge found local council liable – these decisions revered by NSW Court of Appeal – Sydney Water found liable

• Sydney water appealed to the High Court

Is it reasonable for Sydney Water to have in mind the kind of risk which eventuated?

Decision: Sydney Water had no legal duty of care to the Turanos because they could not control the risk

• “the temporal relation between Sydney Water’s conduct and Mrs Turano’s injury was relevant to the determination of whether the relationship between them gave rise to a duty.”

• “in the absence of control over any risk posed by the tree in the years after the installation of the water main there was not a sufficiently close and direct connection between Sydney Water and Mrs Turano...for her to be a ‘neighbour’”

Stuard v kirkland-veenstra

• Two police officers saw P’s husband in his car with a hose leading from the exhaust pipe to the interior of the vehicle

• P’s husband questioned and said he was going to do something stupid but change his mind – sounded rational and responsive

• D’s did not believe P’s husband to be mentally ill

• Later that morning, P’s husband commit suicide in the car at home with engine running and a hose connected between exhaust pipe and interior of the car

• P (wife) sued police officers + State of Victoria

• Appeal to the High Court found that police officers had not found P to be mentally ill and therefore, did not have the power to apprehend him under the Mental Health Act 1986 s 10

• Premise for P’s argument that officers owed duty because of their power to intervene as members of the police force

Did the officers have control over the risk?

Decision: NO DUTY OF CARE because D did not control or create the risk. 

• Reference to Smith v Leaurs (1945) 70 CLR 256: 

• “the general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third”

• “the general rule that there is no duty to prevent a third party from harming another is based in part upon a more fundamental principle, which is that the common law does not ordinarily impose liability for omissions”

• “The value described as personal autonomy leaves it to the individual to decide whether to engage in conduct that may cause that individual harm.

Annets

D had assumed responsibility for 16-year-old son of plaintiffs who went missing and was found dead for months later  D assured plaintiffs that the primary victim would be supervised.  Plaintiffs suffered psychiatric injury and brought an action against their son’s employer.

Agar v hyde

• Rugby player suffered a severe spinal injury; unsuccessful in suing organisation responsible for the rules of Rugby

• Found that the player was aware of the risks, and volunteered anyway

“there were too many intervening levels of decision making between the promulgation by the IRFB of laws of the game and the conduct of the individual matches in which the respondents were injured”

Tapp v ABCRA

P was 19yo experience horserider Participating in Campdrafting competition 4 riders had already slipped on unsafe ground Tapp suffered severe spinal injuries On appeal to high court, was found that risk was not known to Tapp;  D liable

Graham barclay

Consumers contract HAV from contaminated oysters in a lake  D were growers and suppliers of oysters, local council + State of NSW Consumers sued the government because they should have done more to prevent the breakout of HAV Did the state government owe a duty of care to regulate the oyster industry to prevent the outbreak of HAV? Decision: State government has no duty of care “The risk of injury which eventuated in this case was not far-fetched or fanciful; it was real and was therefore foreseeable..

Wyong shire council v shirt

•  Plaintiff was a water skier

• Defendant: Wyong council

• Council placed sign in waters saying ‘Deep Water’

• P misled by signs + water-skied in shallow area –he fell off, struck his head on the bottom of the lake and became a quadriplegic

• P sued 3 defendants

• Trial judge found only the council under duty of care + breached it (because the sign was unclear)

• Court of Appeal argued waterski club also have duty of care + breached such

Could the council have foreseen that the sign would cause risk of injury to the plaintiff/ class of plaintiffs?

• Decision: Council found to have breached duty of care because the sign was “ambiguous” (unclear to where the zone of deep water would be)

• Mandates the approach of balancing factors which a reasonable person would consider in determining whether and what precautions should be taken for a foreseeable risk

• The magnitude of the risk, the degree of probability of the risk, and the difficulty or inconvenience it takes for the defendant to alleviate risk must be considered.

A ‘foreseeable’ risk is a risk that is ‘not far-fetched or fanciful’

RTA v dederer

PROBABILITY. BURDEN. UTILITY.

• P, 14-year-old boy dived from a bridge; water was too shallow + he was partially paralysed

• Common for diving and jumping from the bridge among youths – no reported injuries before Dederer) 

• ‘No diving’ pictograms had been erected 

• low probability but high seriousness

•  Putting signs up everywhere would disrupt the aesthetic/views - negatively affected social utility

• Suggested changes: differently designed railing/fence, different warning sign: high burden

Did the RTA exercise reasonable care? Was the duty of care breached by the RTA?

Decision: RTA found not to have breached their duty of care because it is not about preventing harm, but taking reasonable steps to limit harm

• “the risk faced by Mr Dederer was of a very low probability and a reasonable response to that risk did not demand the measures suggested by him”

Bolton v stone

PROBABILITY. BURDEN

• Defendant, cricket club, had small strip taken off one end of the ground for a road, bringing the pitch closer to the fence

• Fence was over 5 metres above the pitch

• Plaintiff, Miss Stone standing outside her house was injured by a ball which travelled 90m

LOW PROBABILITY

• Evidence from a neighbour that the balls had hit his house or come into his yard ⅚ times over the previous few years

• Members of club testified that over 30 years, balls had rarely been hit out of the ground

HIGH BURDEN

• Suggested that needed higher fences, to move the cricket club or get rid of it altogether:

Was the risk of injuring P was significant/large enough for a reasonable man to take steps to prevent the danger?

Decision: cricket club was not found negligent

• “In order that the act may be negligent there must not only be a reasonable possibility of its happening but also of injury being caused.”... “the risk was so small that... a reasonable man would have been justified in disregarding it and taking no steps to eliminate it”

Wagon mound (2)

PROBABILITY. BURDEN.

• Defendant – owner of the Wagon Mound (a ship docked at a wharf)

• Ship's employees were careless with fuelling the ship + it spilled into the harbour

• Oil spilled was very difficult to ignite – tends not to burn when deposited on water

• But spark on the other ship ignited + caught fire

• Damages to the Corrimal ship + dock area (plaintiffs

Was the risk of heavy oil catching fire reasonably foreseeable?

• If so, what was a reasonable response?

Decision:

• Low probability of oil catching fire on the water does not justify the burden of avoiding the risk (stopping the welding of the Corrimal + clearing away the oil)

• “He would weigh the risk against difficulty in elimination of it”

• “If a real risk is one which would occur to the mind of a reasonable man in the position of the defendant’s servant and which he would not brush aside as far-fetched, and if the criterion is to be what that reasonable man would have done in the circumstances... he would not neglect...a risk if [eliminating] it presented no difficulty, involved no disadvantage and required no expense.

Paris v stepney council

• Plaintiff blind in one eye

• During maintenance work, he was struck by a bolt + blinded in his good eye, making him fully blind

• P claimed D was negligent in failing to supply him with goggles that would protect him against the foreseeable risk

Did D have a duty of care to P, considering he was at risk of worse consequences than two- eye employees?

Decision: D was in breach of his duty to P

•  The seriousness of the harm which might be caused to P is relevant to how a reasonable person would behave

• “the more serious the damage... the more thorough are the precautions which an employer must take”

• “this duty of reasonable care can be discharged without regard to the gravity of the harm which is likely to fall on the workman concerned.”

vairy v wyong shire council

• P dived off a rock ledge at a popular beach and became a quadriplegic

• Trial judgment against council found them liable

• NSW Court of Appeal reversed – plaintiff appealed to High Court but was dismissed

• Suggested council needed warning or prohibition signs

Did the council breach a duty of care owed to the appellant by not having warning or prohibition signs regarding diving on the rock?

Decision: council did not breach duty of care

Burden of putting up signs and fences was too high (even though it was foreseeable that people would dive)

E v australian red cross

OCIAL UTILITY

• P underwent surgery, faced post-operative bleeding + was given a blood transfusion from Red Cross

• On date of blood donation, there was no test available for HIV

• Transfusion transmitted HIV + then developed into AIDs

• P sued Red Cross + hospital

  • Red Cross failed to adopt system of testing for hepatitis antibodies which was in place when the blood was donated

• Social utility:

  • Introduction of anti hepatitis antibodies testing would lead to wasting 5% of all donations

• HIGH BURDEN – expensive through wasting donations of blood

• LOW PROBABILITY – no AIDs case had appeared yet

• HIGH SERIOUSNESS – AIDs stays with you for life

Issue: Whether a prudent person would have determined that a concern for blood contamination outweighed the complications caused by blood loss, and hence, if the respondents were negligent in failing to surrogate test the blood?

Decision: concerns of blood contamination did not outweigh concerns of blood loss

• No AIDs case had appeared yet

• Would have been a “serious effect on the blood supply” if the testing was brought in

McHale v Watson

AGE: STANDARD OF CARE REDUCED

12-year-old boy, Watson threw a 15cm piece of steel rod which he had sharpened + it accidentally struck a 9-year-old girl, McHale in the eye

Watson had intended to throw the dart at a post, but it struck McHale instead.

McHale sued Watson for negligence, claiming damages for the injury

By what standard of care should an infant defendant be judged?

Decision: defendant was not negligent (due to his age)

“it is the standard to be expected of a child, meaning any ordinary child, of comparable age...not that which is to be expected of an adult”

Carrier v Bonham

In attempting suicide, Bonham (D) jumped in front of passing bus driven by Carrier (P)

P suffered from nervous shock as a result

D was schizophrenic who had gotten away from the Royal Brisbane Hospital

Decision:

Mental state has no bearing on the standard of care owed to P

“there is no such thing as a ‘normal’ condition of unsound mind in those who suffer that affliction”

Imbree v McNeily

• Plaintiff allowed the defendant (friend of one of his son’s) to drive his car without a learner’s permit

• Car tipped, catastrophically injuring the plaintiff

• Trial judge found defendant negligent

• Plaintiff was awarded damages which were reduced by 30% for contributory negligence

• NSW Court of Appeal – reduction of the plaintiff's damages was increased to 60%

What standard of care did the driver owe to the passenger?

• Are there different standards of care if the person suffering damage was a supervisor or just another passenger?

• Standard of care is to “to take reasonable care to avoid injury to others”

“Objective standard...does not vary with the particular aptitude or temperament of the individual” 

Rogers v Whitaker

PROFESSIONALS: SOC INCREASED

• P had surgery on her right eye to fix lost sight

• Surgery failed to fix, gave permanent sight loss in the eye

• Condition occurs once every 14k procedures

• P sued and was awarded damages as D failed to disclose the risks of this occurring

Did the appellant’s failure to advise and warn the respondent of the risks of the procedure constitute a breach of duty?

•  Adhering to peer professional standards under 5O(1) of the Civil Liability Act

• “The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment.”

Standard of proof for burden

The type of harm was forseeable should care not be taken

Strong v Woolworths

• D operated a food court that opened at 8am

• 12:30, plaintiff on crutches in the food court slips on a French fry

• D accepted duty of care to plaintiff + breach of not having an adequate system for detection/removal of slippery substances

• D’s argument :

  • Far more probable that the chip fell between 12:10-12:30pm because french fries are often eaten at lunch time

  • Hence, reasonable system of inspection would not have detected the chip

• P’s argument :

  •  Far more probable the chip fell between 8am-12:30pm 

  • System of inspection would detect the chip + she would not have been injured

• Failure to introduce system of inspection was a necessary condition of the harm

• Would P’s slip-on D’s food court not have happened but for D’s breaching omission (no system to regularly inspect floor for risk)

Decision: High Court ruled in favour of Strong

• D’s breach was a necessary condition of the harm

“The determination of factual causation under s5D(1)(a) is a statutory statement of the ‘but for’ test of causation: the plaintiff would not have suffered the particular harm but for the defendant’s negligence”

Adeels Palace v

Moubarak(2009)

• Dispute arose on New Year’s Day leading defendant to shoot Mr Moubarak and Mr Bou Najem

• Plaintiff (Moubarak) shot by a gunman on the defendant’s premises

• High Court prepared to assume the defendant was negligent in failing to provide sufficient security staff

• Court held that the plaintiff failed to prove the shooting would not have happened 

• Would shooting of P on D’s premises ‘more probably than’ not have happened but for D’s supposed breaching conduct (not providing security guards)?

Decision: High Court ruled in favour of Adeels Palace

• Court found that providing security would not definitely stop the assailant from entering the premises

• “failures to have bouncers at the door was not causative of plaintiffs being shot”

The wagon mound (1)

• Sydney Harbour (1951) - Overseas Tankship negligently allowed oil to spill from their ship (the Wagon Mound) into the harbour

• Oil spread through water + reached P’s wharf

• Welding at the dock caused sparks to come into contact with cotton waste floating in the oil – resulted in fire, damaging the dock and vessels being repaired there 

• Was the harm unforeseeable, and thus, too remote to find the defendant liable?

Decision: Defendants (Overseas Tankship) successful

• Even though foreseeable oil spillage could cause pollution, the fire was not a foreseeable consequence (type of harm was too remote)

• This case introduced principle that liability is limited to damage that is a foreseeable consequence of the negligent action

“it is not the act but the consequences on which tortious liability if founded”

“Liability for a consequence has been imposed on a ground that it was reasonably foreseeable, or alternatively on the ground that it was natural or necessary or probable.”

“the essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen.”

A defendant is liable only for damage of a kind that was reasonably foreseeable

Hughes v lord advocate

Workers left an open manhole in a public street unattended with kerosene lamps and a tent around it Two young boys took the lamps, entered the manhole – one fell into the hole with a lamp which exploded leading to severe burns Was the kind of injury from the situation foreseeable? Decision: ruled in favour of Hughes (P)  Exact way/cause/manner of the injury occurring does not need to be foreseeable (the D’s argued the explosion was unforeseeable) Rather – nature of the injury was within the range of foreseeable risks “He can only escape liability if the damage can be regarded as differing in kind from what was foreseeable....”

Kavagnagh v akhtar

• P injured by employees of D + subsequently, cut her hair short because her injury prevented her from brushing it with ease

• Husband divorced her due to haircut + P suffered depression and suicidal tendencies

• Trial judge did not believe psychiatric illness to be foreseeable to D

Whether the plaintiff’s depression was foreseeable to a shopkeeper?

Decision: held that psychiatric injury was foreseeable to D

“In any event, the possibility that a person will desert a partner

Nader v urban transit authority

• 10-year-old plaintiff developed rare psychological syndrome called Ganser after minor physical injuries in a road accident

• Defendant argued cause of syndrome was overprotectiveness of the P’s parents (with evidence that no harm would have occurred had he been removed from his parents)

Decision: D not found liable but tbh thats not relevant

“When a defendant takes a plaintiff as he finds him, he does not take him as a naked human being divorced from his environment. Clearly enough taking the plaintiff as you find him involves taking him in at least his social and earning capacity setting.”

Mahoney v Kruschich

Plaintiff sued employer for damages for personal injury suffered during employment Employer argued the negligence of P’s doctor contributed to the injury Did the doctor’s negligence contribute to P’s injury? Decision: found that the Doctor’s negligence did not break the chain of causation or remove additional injury from scope of the first tortfeasor’s liability “In such a case, it is proper to regard the exacerbation of a plaintiff’s condition as resulting solely from the grossly negligent medical treatment or advice.”