JD

Negligence and Duty of Care – Study Notes (BSB250)

Overview and Key Concepts

  • Negligence is a major area within tort law focusing on civil wrongs where a person’s carelessness causes harm to another.
  • A tort is a civil wrong that gives the harmed party the right to sue for compensation; it is distinct from criminal liability (criminal law punishes the wrongdoer, tort law remedies the victim).
  • A single harmful act can give rise to multiple legal liabilities (e.g., tortious, criminal, contractual, statutory, vicarious, etc.). This helps explain why legal answers in one area may not feel “fair” on their own – other areas of law may address different aspects of fairness.
  • The tort of negligence is the central focus here; it covers a broad range of harm beyond a single interest or type of injury.
  • Core elements to prove in a negligence claim (the plaintiff must establish):
    • R_1: Duty of care owed by the defendant
    • R_2: Breach of that duty
    • R_3: Causation – breach caused harm
  • Defences may reduce or bar liability, including:
    • Voluntary assumption of risk
    • Contributory negligence
  • The law of negligence has evolved from pure case law to a combination of case law and statutory rules (notably in Queensland with the Civil Liability Act 2003 (Qld), which updates certain aspects but does not abolish the duty of care).
  • In practice, the duty of care framework is applied across both established categories and general principles, supplemented by negligent misstatement rules in specific contexts.

The Tort of Negligence: Key Definition and Scope

  • A person commits the tort of negligence if their carelessness causes harm to another person.
  • Negligence is the most common tort and is not confined to a particular type of harm or interest; unlike trespass (which involves a direct interference with land/property) or defamation (which targets reputation).
  • Negligence is more than mere carelessness; it is conduct that objectively falls short of what society expects and involves a failure to conform to a legal obligation to protect the interests of others.
  • Gleeson CJ in Tame v New South Wales (paraphrased): negligence involves a failure to conform to a legal obligation, not merely making a mistake.

Development of Negligence Law

  • Donoghue v Stevenson (1932): establishes the broad Duty of Care and the neighbour principle in the law of negligence; lay groundwork for modern duties to avoid harming others.
  • Grant v Aust Knitting Mills (1883/1936): adopts the neighbour principle in Australian law; helps embed the broad duty framework.
  • Heaven v Pender (1876): early broad attempt to establish a duty of care; not ultimately adopted as the controlling approach.
  • Major problems in affordability of public liability insurance (especially for professionals) due to large damages awards in the late 20th century.
  • Civil Liability Act 2003 (Qld): introduces statutory elements that modify how breach and causation are treated, while not removing the duty of care.

The Law of Negligence: From Case Law to Statutory Rules

  • Historically dominated by case law; today it is a hybrid of case law and statute.
  • In Queensland, the Civil Liability Act 2003 (Qld) governs certain aspects of negligence while acknowledging the continuing role of duty of care as a primarily common-law concept.

The Elements of Negligence and Defences in Practice

  • For a negligence action to succeed, the plaintiff must prove:
    • R_1: The defendant owed the plaintiff a duty of care
    • R_2: The defendant breached that duty
    • R_3: The defendant’s breach caused the plaintiff to suffer harm
  • Even when all three elements are proven, the defendant may have defences (e.g., voluntary assumption of risk, contributory negligence) that reduce or eliminate liability.

R1: A Duty of Care

A. Established Categories

  • Some relationships give rise to a duty of care as a straightforward matter (established categories), for example:
    • Motorists owe a duty to other road users
    • Doctors owe a duty to their patients
    • Manufacturers owe a duty to users of their products (Donoghue v Stevenson – consumer safety)
    • Occupiers owe a duty of care to entrants onto their premises (e.g., Australian Safeway Stores Pty Ltd v Zaluzna)
    • Professionals and clients
    • Employers owe a duty of care to employees
    • Directors owe a duty of care to the company
    • Agents owe a duty of care to their principals

B. Duty in Non-Established Categories (General Duty of Care)

  • If the relationship does not fall within an established category and is not a negligent misstatement, two tests are applied:
    • The plaintiff must show that it was reasonably foreseeable that the defendant’s carelessness could cause harm to someone in the plaintiff’s position (the foreseeability test) (e.g., Bourhill v Young).
    • The salient features of the case must be consistent with the existence of a duty of care (Perre v Apand). The High Court has used this approach in Sullivan v Moody; the set of salient features is not exclusive.

C. Negligent Misstatement (A Special Form of Duty)

  • A negligent misstatement occurs when someone provides information or advice that is inaccurate or misleading, potentially giving rise to a duty of care in limited contexts.
  • It is typically relevant to professionals (e.g., accountants, financial advisers, travel agents) and concerns potential pure economic loss, not limited to physical harm.
  • The courts have developed tests for two situations: direct misstatements to the plaintiff and misstatements that are supplied to a client who then communicates to a third party.

R1(B): Scope of the Duty of Care

  • The scope of duty is not unlimited; it is bounded by the circumstances of the case.
  • A classic example: an occupier owes a duty for the condition of the premises but not for every possible harm that could occur from every conceivable action or omission. The scope is tied to premises condition and major activities on the premises.

R1A. Duty of Care: Established Categories (Detailed)

  • Motorists owe a duty to other road users.
  • Doctors owe a duty to their patients.
  • Manufacturers owe a duty to users of their products (Donoghue v Stevenson).
  • Occupiers owe a duty to entrants (Australian Safeway Stores Pty Ltd v Zaluzna).
  • Professionals and clients.
  • Employers owe a duty to their employees.
  • Directors owe a duty to the company.
  • Agents owe a duty to their principals.

R1B. Duty of Care: General (Common Law Test)

  • If no established category applies and it’s not a negligent misstatement, the plaintiff must establish:
    • The defendant’s carelessness reasonably could cause harm to someone in the plaintiff’s position (R_1)
    • The salient features of the case support a duty of care (R_2, conceptually).
  • The approach emphasizes foreseeability and the contextual features of the relationship.

R1(B)(i). General duty of care - Reasonable Foreseeability

  • Reasonable foreseeability test:
    • It must be reasonably foreseeable at the time of the incident that the defendant’s careless conduct could harm someone in the plaintiff’s position.
    • You owe a duty to those you can reasonably foresee as likely to be affected by your conduct (e.g., drivers owe a duty to passengers, other road users, pedestrians, cyclists; subject to limits in Bourhill v Young).

The Pond Analogy for Reasonable Foreseeability

  • Reasonable foreseeability can involve a long chain of events and multiple harms, but the law balances the harms against reasonableness of accountability.
  • Proximity (closeness) is a key factor: the nearer the harm to the source of carelessness, the more likely it is reasonably foreseeable.
  • The concept is nuanced: foreseeability does not require actual foresight by the defendant; it requires what a reasonable person in the defendant’s position would foresee.

R1(B)(i) Further Details on Foreseeability

  • The test does not require the actual harm to have been foreseen; only that some form of harm to someone in the plaintiff’s position could be caused by the defendant’s carelessness.
  • The foreseeability test may vary with the element of negligence being considered.

R1(B)(ii). General duty of care: Salient Features

  • The salient features help determine whether a duty of care exists. Three commonly considered features:
    • The control the defendant has over the situation
    • The relative vulnerability of the plaintiff
    • The need for people to take responsibility for their own actions
  • These features are not exhaustive; the High Court has indicated the lists in cases are not exclusive.

R1(C) Negligent Misstatement

  • A negligent misstatement involves giving advice or information that is inaccurate or misleading, causing potential economic loss.
  • It is distinct from fraudulent misstatement; it concerns honest but careless information.
  • It is particularly relevant where professionals regularly give advice to clients (e.g., accountants, auditors, financial advisers, investment consultants, travel agents).

R1(C)(i) Duty of Care and Negligent Misstatement

  • A defendant giving advice or information to a plaintiff will owe a duty of care if all three conditions are met:
    • The advice was of a business or serious nature
    • The defendant knew or should have known that the plaintiff intended to rely on the advice
    • It was reasonable in the circumstances for the plaintiff to rely on the defendant’s advice
  • [Reference case: Mutual Life & Citizens Assurance Co. v Evatt]

R1(C)(ii) Duty of Care: Negligent Misstatement to a Third Party

  • If the harmed party is not the client but a third party who relies on the advice, a duty of care may still arise if:
    • The adviser gave advice to a client knowing the client would communicate the advice to the third party
    • The advice is likely to lead the third party to enter into a transaction
    • It is likely that the third party will suffer financial loss if the transaction goes ahead and the advice is wrong
  • Generally, a duty to a third party will not arise unless the adviser knew or should have known that the third party would rely on the advice.

Foundational Cases and Principles (Selected Examples)

  • Donoghue v Stevenson (1932): Manufacturer owes a duty of care to all consumers; no direct contract required.
  • Australian Safeway Stores v Zaluzna (1987): Occupiers owe a duty of care to entrants onto premises.
  • Bourhill v Young (1943): No duty of care where proximity and foreseeability do not align; pregnancy-related harm not sufficiently proximate.
  • Perre v Apand (1999): Duty of care recognized in some situations by considering not only foreseeability but salient features (knowledge of risk, control over the operation, vulnerability of the plaintiff).
  • Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964): Economic loss through negligent professional advice; disclaimer can limit liability, but damages for economic loss can arise in certain contexts of advice to clients.

Short Summary: Key Takeaways

  • Duty of care can arise from established categories or via general tests of foreseeability and salient features.
  • Foreseeability is about what a reasonable person would foresee, not necessarily what actually occurred; proximity matters for the scope of duty.
  • Salient features (control, vulnerability, responsibility) guide the application of the duty in non-traditional relationships.
  • Negligent misstatement creates a duty of care in professional-advice contexts, with specific criteria for direct and third-party reliance.
  • The law sits at the intersection of case law and statute; the Civil Liability Act 2003 (Qld) modernizes some aspects of negligence while preserving the core duty framework.