LAWS1203 Study Guide - Final Guide: Obiter Dictum, Determinative, Lord Advocate
P v D
FRAMING ISSUE/EXAM → “The central issue here is whether … / P would
commence legal proceedings against D for the damage he has suffered, through
the application of the legal principles of the CLA 2002 (NSW) to the facts of the
case, and by reference to common law High Court precedent/authority”
Liability for → …, …
Elements of negligence
P must show suffered actual loss / harm (that society considers is worthy of
protection), and …:
[Onus on plaintiff, must prove on balance of probabilities]
1. DUTY (by Defendant to class of Plaintiffs to which the Plaintiff
belongs)
a. Duty in law on such Ds to take reas. care to avoid that general
kind of harm to that class to which P belongs
b. Was the harm reasonably foreseeable
c. Could the defendant have reasonable foreseen that their acts or
omissions could cause damage of the general kind suffered by
the plaintiff or class of which the plaintiff is a member.
(Generally taken from Donoghue v Stevenson).
2. BREACH (s.5B and C) (question of fact)
a. This D did not in fact meet a reas. standard of care in the
circumstances, i.e. was ‘negligent’
3. CAUSATION (s.5D) (Defendant’s act a cause, in fact + law, of
Plaintiff’s harm)
a. D’s breach conduct a cause in fact of Ps’ harm + not too remote
• DEFENCE by D? (D must show, but some reverse onus in Act)
• VICARIOUS LIABILITY of D+ for D’s breach? (P must show)
‘Reasonable foreseeability’
• DUTY: = General / abstract
Did D’s class / type of activity carry some foreseeable (‘not
unlikely’) (Chapman v Hearse) risk of some harm (of that general
kind) to a general class of Ps of which P part?
• BREACH: = More particular but still prospective
Would average person [or expert etc] in D’s actual position have
foreseen this activity carried this risk of harm to P if reasonable
care not taken? A risk that is far-fetched or fanciful (Wyong v Shirt)
is not foreseeable; no precautions need be taken against a non-
foreseeable and insignificant risk (s.5B(1)).
• REMOTENESS: = Particular facts, actual harm in this case
Was the kind of harm P actually suffered here a foreseeable
outcome of careless conduct on the risk (even if exact manner, or
extent not RF?). If harm is too remote it might not be ‘appropriate’
s5D(1)(b) for liability…
1. DUTY OF CARE
First, define what is a duty of care = “for D to be liable in negligence P must
show that he/she belongs to a class of Ps of which D owes a duty of care to
prevent RF (‘not unlikely’) harm…” (Chapman v Hearse)
1. Established categories: = move swiftly to ‘breach’ issue
i. Duty of road users to exercise reasonable care to avoid
foreseeable physical harm to other road users: Chapman v
Hearse* [2.3.2C]
ii. Duty of manufacturers of consumer products intended for
consumption / use in the form in which they issue them with no
reasonable possibility of intermediate examination before
consumption, where foreseeable that lack of reasonable care in
the manufacturing process might injure the consumer’s person:
Donoghue v Stevenson* [2.2.7C]
iii. Duty of medical practitioners towards patients, to exercise
reasonable care and skill in diagnosis, advice and treatment:
Rogers v Whitaker* [3.2.19C]
find more resources at oneclass.com
find more resources at oneclass.com
iv. Duty of occupiers of premises, owed to lawful entrants, to
exercise reasonable care and skill to avoid foreseeable injury to
entrants arising from the physical state and condition of the
premises: Zaluzna v Safeway Stores [7.5.4C; you need not read
this case extract as such]; also (Week 9-10) Modbury Triangle
Shopping Centre v Anzsil* [7.5.17C, discussing Zaluzna]
v. Duty of care of employers to employees to take reasonable care
to ensure a safe workplace: various cases, none specifically
focussed on (see e.g. Paris v Stepney Borough Council).
2. New simpler cases (no category): = if clear positive act by a private
individual which directly causes physical harm to P, RF of damage of
that general nature to that class of P’s is enough
i. If the defendant made a clear positive act, reasonable
foreseeability is enough. Prove RF then move on to breach
▪ But difficult to show causation if clear positive act has
been shown
▪ Chapman v Hearse, Sydney Water v Turano
3. New complex cases (esp. omissions): =
If not established DoC → “There is no recognised established duty relationship
between P and D however it is RF that P was part of a class of Ps susceptible to a
RF risk of harm. Sullivan v Moody says that RF is not enough”
i. RF that kind of harm to that class of P’s, plus
▪ E.g. Sullivan v Moody – court accepts that harm to the
specific plaintiffs was reasonably foreseeable, but
needs to be more factors to establish DoC
▪ E.g. Sydney Water harm not reasonably foreseeable
ii. Sufficient relationship factors ‘salient features’, plus
▪ Salient features – factors about control; non-definitive;
e.g. is Plaintiff reliant on defendant to take reasonable
care? (Donoghue v Stevenson)
▪ D’s control (or not, or degree) Agar v Hyde, Sydney
Water, Stuart v KV
▪ D’s assumption of responsibility (or not, or degree)
Modbury Triangle
▪ P’s reliance on D Crimmins
▪ P’s vulnerability to D (i.e. to D exercising control)
Crimmins
▪ [D’s other conflicting duties] Graham Barclay Oysters
▪ [Other ‘policy’ and legal coherence issues] Graham
Barclay Oysters
▪ E.g. Sullivan v Moody – no sufficient relationship
factors, no DoC
iii. No legal policy reason not to recognize a duty
▪ (Pure mental harm Part 3 ss29-32) if RF, DoC
imposed
▪ Intoxication (s50); no DoC unless P shows that
intoxication was irrelevant to harm
▪ E.g. Sullivan v Moody – would create conflict in the
law, no DoC
▪ CLA limitation on duty? → “s5J-L D will not be
liable for harm suffered from obvious risk of
dangerous recreational activities, which arose from the
P-favoured ‘council cases’ pre-2002 to alleviate the D
from unreasonable liability.”
Concluding statement. “The court would find that D would probably/probably not
owe P a duty of care”
2. BREACH
1. Establish the breaching act/particularisation: “P will argue that D was
negligent in the following respects…”
a. “There are a number of things that P could argue that D
should’ve done, but these (2/3) are most foreseeable…”
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
P must show suffered actual loss / harm (that society considers is worthy of protection), and : Plaintiff"s harm: d"s breach conduct a cause in fact of ps" harm + not too remote, defence by d? (d must show, but some reverse onus in act, vicarious liability of d+ for d"s breach? (p must show) Reasonable foreseeability": duty: = general / abstract. A risk that is far-fetched or fanciful (wyong v shirt) is not foreseeable; no precautions need be taken against a non- foreseeable and insignificant risk (s. 5b(1)): remoteness: = particular facts, actual harm in this case. Was the kind of harm p actually suffered here a foreseeable outcome of careless conduct on the risk (even if exact manner, or extent not rf?). If harm is too remote it might not be appropriate" s5d(1)(b) for liability : duty of care. Duty of road users to exercise reasonable care to avoid foreseeable physical harm to other road users: chapman v.
