LAW 1507 Lecture Notes - Lecture 3: State Rail Authority, Safeway Inc., Special Relationship
23 May 2018
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The negligence enquiry process
5 main stages
○ 1. The defendant must owe the plaintiff a duty of care
a) What is the scope of this duty?
○ 2. The defendant must breach their duty
b) What is the standard of care?
○ 3. This breach must cause (causation) the plaintiff loss or personal injury
c) is the loss too remote from the breach? (Novus)
○ 4. Does the defendant have any Defences?
○ 5. What damages can the Plaintiff claim?
Answering questions for any question
IRAC structure
Use the facts as much as possible
State the law first. Then apply it to the facts. Never apply the rule without first stating it
Incorrect to cite a case to support a factual conclusion. A case is only stated after you have cited a legal
conclusion.
1. State the law. [A DOC will arise where a person knows or ought reasonably
foresee that physical harm is a likely result of his/ her conduct (Tabet v Gett)]
2. Now apply to the facts [JKL Ltd owed a DOC to Honi as it is reasonably
foreseeable that a student at the university where their shelters were
constructed would suffer physical harm if they were to collapse]
Further EG: directness can be established through related immediacy
Huthis M… This eleet is satisfied as the ad hih hit Ds a
folloed dietl fo As at.
o Legal test (authority) – Facts – legal conclusion
Legal test (authority) legal test (authority)- facts- conclusion
o Italicise all precedent and CLA
o Dot use headigs fo DBCDD if ou do, omit before handing up)
o Most recent authority- use what you have been given
find more resources at oneclass.com
find more resources at oneclass.com
Duty of care (step 1)
Types of harm
• physical: a duty of care will arise where a person knows or ought reasonably foresee
that physical harm is a likely consequence of his or her conduct.
o (Tabet v Gett 2010 HCA 12) – This precedent will usually be enough to
establish a duty when the physical harm was reasonably foreseeable.
When the facts fall into an established category of duty:
It is well established that a dut of ae aises etee…
• Manufacturers and builders to customers (RARE + OLD)
➢ Donoghue v Stevenson
• Doctor to patient
➢ Rogers v Whittaker
• Owner to occupier
➢ Australian Safeway Stores Pty Ltd v Zalunza
• Driver to passenger (regular)
➢ Imbree v McNeilly
• Gaoler to prisoner
➢ NSW v Bujdoso (rock spider case)
• Parents to children
• School to pupil
• Master to servant
Mental Harm (special duty situation)
Must be a recognised psychiatric illness. Pure (without physical injury) and consequential
(following an injury).
Given the psychiatric nature of harm, this becomes a special duty inquiry. s53(1) of the CLA is
satisfied as… s of the CLA… s CLA has been met as the defendant could have
reasonably foreseen that a person of normal fortitude, might in the circumstances, suffer a
recognised psychiatric injury in these circumstances.
Pure mental harm
➢ A situatio of dage eatig etee fea fo the plaitiffs self o ithi the
zone of physical risk;
➢ A situation where the plaintiff was safe from physical harm but feared for
their relative(s);
➢ A situation where a relative has been badly injured and the plaintiff saw or
heard about it or was in the immediate vicinity in the aftermath of the
accident;
➢ Witnessed a horrific scene take place where the victim was killed, injured or/
and was put in peril.
➢ Bearers of bad tiding have no liability; mere sorrow does not sound in
damages (Jaensch v Coffey)
find more resources at oneclass.com
find more resources at oneclass.com
Control mechanisms
Aied to stop the floodgates opeig fo lais. No loge a euieet. (Tame v
NSW; Annetts v Australian Stations)
Legislation for Mental Harm This is the process to use when establishing a DOC in a mental
harm enquiry. Process: s 53 THEN s 33
Civil Liability Act 1936 (SA)
33—Mental harm—duty of care
(1) A person (the defendant) does not owe a duty to another person (the plaintiff) to
take care not to cause the plaintiff mental harm unless a reasonable person in the
defendant's position would have foreseen that a person of normal fortitude in the
plaintiff's position might, in the circumstances of the case, suffer a psychiatric illness.
(2) For the purposes of this section—
(a) in a case of pure mental harm, the circumstances of the case to which the
court is to have regard include the following:
(i) whether or not the mental harm was suffered as the result of a
sudden shock;
(ii) whether the plaintiff witnessed, at the scene, a person being killed,
injured or put in peril;
(iii) the nature of the relationship between the plaintiff and any person
killed, injured or put in peril;
(iv) whether or not there was a pre-existing relationship between the
plaintiff and the defendant;
(b) in a case of consequential mental harm, the circumstances of the case
include the nature of the bodily injury out of which the mental harm arose.
(3) This section does not affect the duty of care of a person (the defendant) to
another (the plaintiff) if the defendant knows, or ought reasonably to know, that the plaintiff
is a person of less than normal fortitude.
53—Damages for mental harm
(1) Damages may only be awarded for mental harm if the injured person—
(a) was physically injured in the accident or was present at the scene of the
accident when the accident occurred; or
(b) is a parent, spouse or child of a person killed, injured or endangered in the
accident.
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
This breach must cause (causation) the plaintiff loss or personal injury: is the loss too remote from the breach? (novus) Never apply the rule without first stating it. Incorrect to cite a case to support a factual conclusion. A case is only stated after you have cited a legal conclusion: state the law. Further eg: directness can be established through related immediacy (cid:894)hut(cid:272)hi(cid:374)s (cid:448) m (cid:895) this ele(cid:373)e(cid:374)t is satisfied as the (cid:271)ad (cid:449)hi(cid:272)h hit d(cid:859)s a(cid:396)(cid:373) follo(cid:449)ed di(cid:396)e(cid:272)tl(cid:455) f(cid:396)o(cid:373) a(cid:859)s a(cid:272)t: legal test (authority) facts legal conclusion. Legal test (authority) legal test (authority)- facts- conclusion: italicise all precedent and cla, do(cid:374)(cid:859)t use headi(cid:374)gs fo(cid:396) dbcdd (cid:894)if (cid:455)ou do, omit before handing up, most recent authority- use what you have been given. When the facts fall into an established category of duty: It is well established that a dut(cid:455) of (cid:272)a(cid:396)e a(cid:396)ises (cid:271)et(cid:449)ee(cid:374) : manufacturers and builders to customers (rare + old) Donoghue v stevenson: doctor to patient.
