LAWS1203 Chapter Notes - Chapter 1: Shoal, Culvert, Blood Bank
Starred cases: know the basic factual context in which the legal issue arose, the issue before the court, the principle
developed or applied by the court, the rationale for that principle, and the way in which it was applied in the facts of that
case.
Just remember that the exam is a set of problem questions: the emphasis will be on identifying the parties, isolating and
articulating the contentious issues so as to emphasise treatment of those, engaging with the legal rules and principles
relevant to those issues (by reference to applicable case or statute law), and applying those rules and principles to the facts
of the question so as to offer an 'answer' of what a court would be likely to conclude.
Established categories
1. Duty of road users to exercise reasonable care to avoid foreseeable physical harm to other road users: Chapman v
Hearse* [2.3.2C]
2. 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 i the aufacturig process ight ijure the cosuer’s perso: Donoghue v Stevenson* [2.2.7C]
3. Duty of medical practitioners towards patients, to exercise reasonable care and skill in diagnosis, advice and treatment:
Rogers v Whitaker* [3.2.19C]
4. 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]
5. 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).
1. Duty of care
The first element in establishing a cause of action in Negligence is for the plaintiff P to show that the defendant D owed P a legal
duty of care to avoid the sort of harm that P suffered. Western societies value autonomy and freedom of individual action
(generally free from duties to others). We are not legally responsible for all the consequences of our unintended acts or omissions,
even if we acted unreasonably. So the fact that D is careless has no legal consequences unless the law accepts that D owed a duty
to people such as P not to be careless: "[D] is entitled to be as negligent as he pleases towards the whole world if he owes no duty
to them..."
A legal duty of care is not empty and open: it is always a duty not to do something that might harm P or (more rarely) to positively
do something to avoid P suffering harm. Whether a duty of care exists is always a question of law (whether the duty has been met
or not met (breached) in P's particular case is partly a factual question). P always bears the burden of showing why D should be
under a duty to that P.
Nature, history and foundations of the Duty of Care concept
Textbook 2.1.1 - 2.1.2; 2.1.5; 2.2.6
Elements of the tort of negligence
• Duty of care – reasonable foreseeability of harm to the plaintiff or to a class of which the plaintiff is a member
a) Reasonable foreseeability of harm to the plaintiff
b) Proximity of the relationship
c) Rules operating to preclude the implication of a duty of care
• Breach of duty
• Causation
• Damage
• Remoteness
The concept of duty of care
• Serves to distinguish between liability and non-liability for non-physical damage i.e. ‘pure economic loss’
• Lord Atkin of Donaghue v Stevenson 1932
o Endorsed the notion of a general principle underlying the particular instances of negligence thus far recognised.
Atkin converted the notion of geographical ‘contiguity or neighbourhood’ in Le Lievre v Gould into a far more
conceptual ‘proximity’
A defendant will owe the plaintiff a duty of care in two situations:
• Where the relationship falls within an established category: employer/employee (Hamilton v Nuroof),
manufacturer/consumer (D v S), doctor/patient (Rogers v Whitaker), owner/occupier, solicitor/client, parent/child
(Robertson v Swincer)
• Where the court adopts the incremental approach based on salient features.
Donoghue v Stevenson* 2.2.7C
• ***
• Duty of care established: the duty to take reasonable care in the process of manufacture so as to avoid reasonably
foreseeable risks of injury to consumers / users where the consumer has no reasonable opportunity to inspect the quality
or integrity of the product before consumption / use. The court was very careful not to simply assert a broad open-ended
duty of care on manufacturers.
'Reasonable foreseeability' and the foreseeable plaintiff
Chapman v Hearse* 2.3.2C
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• Chapman, while driving his car, negligently collided with the rear of a vehicle in front of him driven by Emery, who had
slowed down while signalling an intention to turn right. The door of Chapman’s vehicle was flung open and Chapman
himself was deposited on the road, this being long before vehicles were fitted with seatbelts. Dr Cherry stopped his car
and went to the aid of Chapman. The drivers of the other cars that stopped went to assist the occupants of the other
vehicle, which had overturned as a result of the collision. While Dr Cherry was attending to Chapman, Hearse, who was
travelling in the same direction as Chapman had been, negligently ran down Dr Cherry, killing him.
• The widow of Dr Cherry successfully brought an action in negligence against Mr Hearse. The present case arose out of
an action of contributory negligence by Hearse against Chapman.
• Held: it is not necessary that the precise sequence of events leading to the injury is foreseeable
• It is sufficient that the plaintiff belongs to a class of persons to whom the damage could have been foreseen
Caterson v Commissioner for Railways 2.3.7
• The plaintiff had boarded an express train for the purpose of assisting a departing passenger with his luggage. The train
started moving without warning before the plaintiff had time to disembark. The plaintiff’s young son was alone on the
platform 64km from home. The plaintiff jumped from the train and was injured in doing so. A jury found a verdict in
favour of the plaintiff. Quoting Lord Atkin’s ‘neighbour dictum’, the Court of Appeal stressed the words “likely to
injure”. The decision that there was no duty of care owed to the plaintiff in the circumstances was reversed by the High
Court, who resorted to the jury’s verdict. The leading judgement of Gibbs J runs the questions of duty of care and breach
of duty together and holds that there was evidence on which the jury could be satisfied with regard to both issues.
• Degree of probability/test for reasonable foreseeability: “not unlikely to occur”
Textbook 2.3.4-2.3.9
• Level of abstraction: consider whether it was reasonable to foresee only in a general way the kind of event that happened;
there is no need to foresee the precise sequence of events.
• The question is not what the defendant personally could reasonably have foreseen, but what a reasonable person in the
position of the defendant could reasonably have foreseen.
• “A recognition has emerged that the foreseeability inquiry at the duty, breach and remoteness stages raises different
issues which progressively decline from the general to the particular. The proximity upon which a Donoghue type duty
rests depends upon proof that the defendant and plaintiff are so placed in relation to each other that it is reasonably
foreseeable as a possibility that careless conduct of any kind on the part of the defendant may result in damage of some
kind to the person or property of the plaintiff.
• Where the relationship between the plaintiff and defendant does not fall within an established category, the court will
examine the relevant indicia to decide whether or not to impose a duty of care on the defendant. Although reasonable
foreseeability of the plaintiff is a significant salient feature, it is not sufficient alone to establish a duty of care. The
plaintiff is required to prove that a reasonable person in the position of the defendant would recognise that negligent
conduct may cause injury to the plaintiff.
Sydney Water v Turano* 2.3.10C
• Turano was driving his wife and children along a road when a tree was blown down on to the car. Turano was killed and
the family members were injured. The wife brought an action against the local council on whose land the tree had stood
and against Sydney Water. About 20 years earlier, Sydney Water had installed a water main in the vicinity close to a
culvert. It was alleged that the water main had caused water from the culvert to dam up and spread to the roots of the
tree. This had allowed pathogens to infect the tree and over time weaken its support.
• The trial judge held that the local council was liable bu that Sydney Water was not. Both sides of these decisions were
reversed by the NSW Court of Appeal, but Sydney Water appealed to the High Court and was found not liable.
• Sydney Water had no duty of care, and the event was not reasonably foreseeable. Turano not a ‘neighbour’.
Chester v Waverley Council 2.3.13
• The plaintiff’s young son was drowned in an excavation in the street which had been left inadequetly fenced by the
defendant council and that had filled with water over a weekend. After she became aware that her son was missing, the
plaintiff searched unsuccessfully for some hours for him and was present when the trench was dragged and the body was
brought out by the police. She suffered a severe mental illness. The trial judge directed the jury to return to a verdict for
the defendants and appeals were dismissed.
Bourhill v Young 2.3.14
• FACTS: the plaintiff heard a motorcyclist being involved in an accident which resulted in his death. She suffered a
nervous shock and sued the estate of the negligent motorcyclist for negligence.
• HELD: the defendant’s duty of care does not extend to the world at large. The defendant’s duty of care was confined to
other road users whom he could reasonably foresee would be harmed by his negligence.
• No doubt that the motorcyclist owed a duty of care to whom he collided with and the other road users, but not to the
plaintiff.
• “She was not so placed that there was any reasonable likelihood of her being affected by the cyclist’s careless driving”.
The Seltsam cases 2.3.15 (briefly)
• The principle of the ‘unforeseeable plaintiff’ was applied.
• The plaintiff’s husband was exposed to large quantities of asbestos at the defendant company’s workplace. The plaintiff
contracted mesothelioma as she breathed in the dust brought home by her husband. She brought an action in negligence
against the defendant.
• The plaintiff was awarded damages, but the defendant appealed successfully.
• A defendant will not owe a duty of care to an unforeseeable plaintiff.
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'Foreseeability is not enough': the limitation devices
The search for a 'test' for imposing a duty: 2.2.13 to 2.2.16; 2.6.1 (briefly)
• In order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of the situation
within those of previous situations in which a duty of care has been held to exist.
• ‘Two-stage approach’ requires the establishment of a ‘sufficient relationship of proximity’ and, consideration of any
reasons why that relationship should not give rise to a duty of care.
• Three-stage framework comprising (a) foreseeability; (b) proximity; (c) whether the imposition of a duty of care of the
scope contended was fair, just and reasonable.
• The current Australian approach in deciding whether a duty of care arises in novel situation was enunciated in the context
of claims by parents for harm that they had suffered when child protection workers and health professionals investigated
allegations of sexual abuse of their children.
• ‘Proximity’ is required but not sufficient – something more needed (salient features).
Sullivan v Moody* 2.2.17C
• Dealt with the problem of conflicting legal duties
• FACTS: (1) the plaintiff was alleged to have committed child sexual assault. (2) The plaintiff brought an action in
negligence against the government officials who charged the plaintiff for child sexual assault when he had not committed
the alleged offence
• HELD: (1) government officials investigating allegations of child abuse do not owe a duty of care to a parent who may
be a suspect to conduct their investigations carefully so as to avoid psychological harm to the parent. (2) to impose a duty
of care would be contrary to the statutory scheme that existed to protect the interests of children rather than parents.
• The duty of care for which the appellants contend does not exist.
• The court indicated that it was reasonably foreseeable that if one conducts a child sex investigation negligently, it may
cause harm to suspects under investigation, but very clearly held that this alone was not conclusive of the existence of a
duty of care. The mere existence of reasonable foreseeability of harm is not enough, said the court, to warrant imposing a
duty of care. Plaintiffs need also show the existence of sufficient relevant or salient relationship factors or features
pointing towards why a duty to them should be recognised, and the court will decline to recognise a duty where it creates
incoherence in the law including incompatible duties.
Intro to the 'salient features' approach: 2.2.21-2.2.23 (see Weeks 9 and 10)
• In many well-settled areas of the law of negligence, the existence of a duty of care presents no challenge. After D v S it
was accepted that manufacturers of mass produced goods intended for human consumption owed a duty of care to
ultimate consumers.
• In these ‘well-settled’ areas, reasonable foreseeability of harm to the plaintiff will ordinarily give rise to a duty of care.
• In other areas, including the prevention of harm not directly caused by the defendant and instances of non-physical loss,
something more than reasonable foreseeability is required. Although the phrase does not appear in the judgement in the
principle case, the courts now look for the ‘salient features (or factors)’ of the relationship between the plaintiff and
defendant to see whether if ‘something more’ is present.
2. Breach of duty
If P successfully shows that D owed a duty of care in law to avoid injury of that general nature to persons such as P, we move to
the second step in establishing whether D is liable overall.
In most cases D will not dispute the existence of a DoC, but will very much dispute whether that duty was met or not. That is, D
will deny that she was negligent.
The content of a duty is only one to take reasonable care to do or avoid foreseeable harm connected to the activity to which the
duty relates. It is not a duty to insure P against any injury or to guarantee against or prevent harm at all costs.
P fails unless P can show that D's conduct -- in managing or neglecting foreseeable risks related to their activity -- in fact fell
below the (objective) standard of care that society would expect of a reasonable person or organisation in D's position.
How do we decide what steps a 'reasonable' person should take in order to meet their DoC in any one case? Is it a question of law
or fact, or a mix of these? How do we balance the reasonable expectation that D will act to prevent or guard against foreseeable
harms, with D's freedom of action? What factors are taken into account?
What or who is the 'reasonable person'? Does the law ever make allowance for defendants, such as children or the mentally ill,
who may be incapable of showing the same level of care as an average member of society? What about those with special
professional skills -- are they held to a higher standard of care? What about those learning such special skills -- can a learner D
escape liability to P by pleading their inexperience?
If Duty of Care is the body or framework of the negligence action, Breach is its engine room. It is during the Breach enquiry that
we ask the basic question 'Was D negligent?'
1. The Standard of Care
3.1.1 to 3.1.6
• Relationship between s5B and the common law
• One first needs to determine whether the defendant would be liable at common law
• “A person is not negligent unless the three conditions in a, b, and c are satisfied”
• The onus rests on the plaintiff to prove the three conditions are satisfied
• Common law duty to take care
• Liability for negligence is based on a general public sentiment of moral wrongdoing for which the offender must
pay
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