LWZ116 Lecture Notes - Lecture 3: Safeway Inc., William Gummow, The Neighbourhood
Lecture 3 - Torts
2017
The neighbourhood principle in Donogue v Stevenson gives us two guiding principles viz.
•Foreseeability: of damage to the plaintiff; and
•Proximity: which is the notion of a close and direct relationship or those who are so
closely and directly affected by the defendant’s act. The circumstances surrounding
the injury, including questions of closeness and nearness. Jaensch v Coffey (1984) 155
CLR 549 (Deane J)
Incremental approach - In Sutherland Shire Council v Heyman (1985) 157 CLR 424, Brennan
J. started laying down the groundwork for an incremental approach to deal with Novel
categories. He said that law should develop novel categories of negligence, incrementally
and by analogy with established categories……
Sullivan v Moody the court said that a people may owe multiple duties. The basic idea in
this case, what the High court was advocating was that where there is a conflict between an
existing duty and a putative new duty, may be a good reason not to impose a duty. In other
words the defendant must prioritise to whom it owes a duty of care more. Thus, ‘when
public authorities, or their officers, are charged with the responsibility of conducting
investigations, or exercising powers, in the public interest, or in the interests of a specified
class of persons, the law would not ordinarily subject them to a duty to have regard to the
interests of another class of persons where that would impose upon them conflicting claims
or obligations.’
Test for duty of care - If existing duty – then good. If novel duty – then look at the
Incremental approach – examining the relevant salient features, which have been
developed in other cases and include:
•Foreseeability
•Proximity
•Vulnerability
•Reliance
•Autonomy
•Control
•Coherence & Consistency
•Indeterminacy
•Statutory Obligations
•Implications
Or as given in caltex v stavar
Duty to Whom?
Duty for What? (Scope of duty)
Firstly, must carefully identify to WHOM the relevant duty may be owed. The duty must be
generalizable. It must be appropriate to apply in all similar situations.
•Not whether Bob owes a duty to Jim, but
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Lecture 3 - Torts
2017
•Does a defendant of class A (of which Bob is a member) owe a duty to a plaintiff of
class B (of which Jim is a member)
Secondly,
‘…duties of care are not owed in the abstract. Rather, they are obligations of a
particular scope, and that scope may be more or less expansive depending on the
relationship in question. Secondly, whatever their scope, all duties of care are to be
discharged by the exercise of reasonable care. They do not impose a more stringent or
onerous burden’ Road Traffic Authority of NSW v Dederer (2007) 234 CLR 330
•Jones v Bartlett (2000) 205 CLR 166, where the Appellant walked into a glass door
and it shattered, injuring him severely. The glass door was very thin. It complied with
regulations when it was installed (50 years before), but the regulations have since
changed and it did not presently comply. The Appellant alleged that the Respondent
(the landlord) was negligent in failing to have an expert examine the premises (and
replace the glass door) when the lease commenced.
Thus, in the above case, the question was, does a landlord owes a duty of care to a tenant?
Yes, clearly he does, but to what extent, That’s where we explore the SCOPE of the duty.
Gummow and Hayne JJ:
The landlord has a duty to repair defects that are known or that should
reasonably have been known.
An object will be defective if it is dangerous when being used in a regular
fashion, and ordinarily would not be dangerous when so used.
The landlord does not need to make regular inspections for defects during
the tenancy. The steps a landlord is required to undertake are only those that
would be taken in the course of "ordinary reasonable human conduct".
In regards to dangerous defects of which the landlord had known or
reasonably should should have known, the landlord will be responsible not only
for tenants but also third parties.
In this case, the glass door cannot be seen as a dangerous defect.
Similarly, In Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 write
facts
‘That an occupier of land owes a duty of care to a person lawfully upon the land is not in
doubt. It is clear that the appellant owed the first respondent a duty in relation to the
physical state and condition of the car park. The point of debate concerns whether the
appellant owed a duty of a kind relevant to the harm which befell the first respondent. That
was variously described in argument as a question concerning the nature, or scope, or
measure of the duty. The nature of the harm suffered was physical injury inflicted by a third
party over whose actions the appellant had no control. Thus, any relevant duty must have
been a duty related to the security of the first respondent. It must have been a duty, as
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Lecture 3 - Torts
2017
occupier of land, to take reasonable care to protect people in the position of the first
respondent from conduct, including criminal conduct, of third parties.’
After you have articulated the WHOM and WHAT part, then we can feed that as input into
our test to determine is that duty a pre-existing one or is it a novel duty? If a Novel duty
then we apply the incremental approach and salient features.
Estabished categories
1. Occupiers of Premises
Australian Safeway Stores Pty Ltd v Zaluzuna (1987) 162 CLR 479
Prior to 1987 courts looked very closely at how the person came to be on the land
when deciding how careful the occupier had to be. After the High Court decision
in Australian Safeway Stores Pty Ltd v Zaluzna, it is no longer important to classify the
injured person as a licensee or invitee. The court will still however take into account how
the person came to be on the land in deciding how careful the occupier should have been
for that person's safety.
If a person is a trespasser no duty of care is owed [Personal Injuries (Liabilities and Damages)
Act 2003 (NT) s 9]
When the occupier is a friend, he or she may be willing to admit negligence in order to help
an injured friend but the occupier must be careful not to breach the conditions of an
insurance policy. Many policies contain a term forbidding such admissions. In practice,
occupiers should get their own legal advice, even if they are insured.
2. Employers
At common law, an employer owes a duty to its employees to take reasonable care:
•Smith v Charles Baker & Sons [1891] AC 325
•Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18;
•Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
This involves:
1. Proper selection of skilled persons to manage and direct the business (Butler v Fife
Coal Co Ltd [1912] AC 149)
2. Provision and maintenance of proper plant and equipment (Wilsons & Clyde Coal Co
Ltd [1938] AC 57) and
3. Provision of a safe system of work (Neill v NSW Fresh Food & Ice Pty Ltd (1963) 108
CLR 362)
3. Road Users
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Document Summary
The neighbourhood principle in donogue v stevenson gives us two guiding principles viz. Proximity: which is the notion of a close and direct relationship or those who are so closely and directly affected by the defendant"s act. The circumstances surrounding the injury, including questions of closeness and nearness. Incremental approach - in sutherland shire council v heyman (1985) 157 clr 424, brennan: started laying down the groundwork for an incremental approach to deal with novel categories. He said that law should develop novel categories of negligence, incrementally and by analogy with established categories . Sullivan v moody the court said that a people may owe multiple duties. The basic idea in this case, what the high court was advocating was that where there is a conflict between an existing duty and a putative new duty, may be a good reason not to impose a duty.
