LWZ116 Lecture Notes - Lecture 1: William Gummow, Lord Advocate, Meddle
Notes – Summarized Version Lectures 1-11
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The Elements of Negligence - An action in negligence will lie where the following elements are present:
1) Duty: There must be a duty of care recognised by the law which would require the defendant to
avoid harming the plaintiff;
2) Breach: The defendant’s conduct must be negligent, that is breach the relevant standard of care;
3) Damage: The claimant must suffer a legally recognised injury;
4) Causation: The damage suffered must be caused by the negligent conduct of the defendant;
5) Remoteness: The damage must not be too remote from the conduct of the defendant; and
6) No Defence: The conduct of the plaintiff must not be a bar to recovery. The defendant might try to
establish a defence for e.g. contributory negligence, voluntary assumption of risk
Duty of Care
‘A defendant will only be liable, in negligence, for failure to take reasonable care to prevent a certain kind
of foreseeable harm to a plaintiff, in circumstances where the law imposes a duty to take such care.’
Sullivan v Moody (2001) 207 CLR 562
The duty of care, traditionally works, through recognised categories and is expanded incrementally
through analogy.
Applying the Test – Establishing a Duty of Care – in Road Traffic Authority of NSW v Dederer (2007) 234
CLR 330
1) Identify the Putative (acknowledged or accepted) Duty;
2) Articulate the test for establishing the duty;
3) Assess whether the Putative Duty would be imposed
TEST OF DUTY OF CARE – Sullivan v Moody – starts with the assessment of whether it is an established or
novel duty of care.
If established, then, Duty of Care exists, go straight into salient features. Duty is imposed by the law and
look at the relationship between P and D.
Duty to Whom?
Duty for What? (Scope of duty)
Identifying the Scope - ‘The scope or content of the duty must be determined before any inquiry into
breach can be made as otherwise assumptions may be made about the content of the duty of care which
may fail to take account of fundament aspects of the relationship between the parties.’ Koehler v Cerbos
(Australia) Ltd (2005) 222 CLR 44
Identifying the Possible Duty
• A Duty is imposed by operation of law – it must be generalisable and universalisible
A duty must be owed to a class of people – articulate to whom the duty is owed.
A duty must be concerned with regulating specific conduct – articulate what the duty is concerned with
• Specificity matters – but there is always a challenge in identifying the optimal level of generality
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More general – makes it easier to capture all possible breaches
Versus
More Specific – Duty may be denied on policy grounds
• Think about the breaches you wish to discuss – a reflective process
AND THEN ARGUE ON THAT.
If Novel – To establish duty, articulate the TYPE OF HARM, and whether it was FORSEEABLE. Apply
ANALOGY with cases and then apply the incremental approach and salient features. Salient features can be
found in CALTEX v STAVAR viz.
(a) Foreseeability of harm – A duty of care is only owed only to those whom the defendant might
reasonably foresee as being adversely affected by his failure to take care.
Perre v Apand (1999) 198 CLR 180 - Reasonable foreseeability satisfied: "The loses suffered by Perres
[Plaintiff] were a reasonably foreseeable consequence of Apand's conduct in supplying the diseased seed.
Chapman v Hearce (1961) 106 CLR 112 - The Appellant (Chapman) drove negligently and hit into another
car, flipping his own over and being knocked out of it into the road where he lay unconscious. Several cars
stopped by to help the victims of this accident. One was Dr. Cherry, who rushed towards the appellant.
Whilst he was attending to the unconscious Appellant, Dr. Cherry was struck by the Respondent (Hearse)
who was also driving negligently. Dr Cherry died as a result. Court decided that the Appellant owed money
to Dr. Cherry's estate.
The court held
The High Court held that the precise sequence need not be reasonably foreseeable - instead, it needs
to be a consequence of the same general character. It was reasonably foreseeable as one not unlikely
to follow a collision between two vehicles on a dark wet night upon a busy highway[1]."
The particular sequence here was of a class that should have been anticipated when driving negligently
- driving negligently could very easily result in someone being run over.
Intervening act (for Remoteness of Damages)
In this case, the subsequent act was a reasonably foreseeable consequence of the first one - in the
ordinary course of things, the very kind of thing likely to happen as a result of the defendant’s
negligence.
It can be said that the first act act exposed the plaintiff to negligence by third party, and therefore the
chain of causation is not broken.
Establishes the idea that an intervening act does not cut off liability as long as the intervening act was
a reasonably foreseeable result of the original act.
Plasgraf v long island Railway co. (1928) 162 NE 99
Issues
1. How is the duty of due care that is owed determined?
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2. To whom does a party owe the duty of due care?
Holding and Rule (Cardozo – “Zone of Danger” rule)
1. A duty that is owed must be determined from the risk that can reasonably be foreseen under the
circumstances.
2. A defendant owes a duty of care only to those who are in the reasonably foreseeable zone of danger.
The court held that the conduct of Long Island Railroad’s guard was wrongful in relation to the man
carrying the parcel, but not in relation to Palsgraf standing far away. No one was on notice that the
package contained fireworks which when dropped could harm a person as far from the zone of danger as
Palsgraf.
To find negligence there must first be a finding that a duty was owed and breached, and that the injury
could have been avoided if the defendant had been following that duty. The orbit of the danger or risk
associated with a danger or risk is that which a reasonable person would foresee.
Even if the guard had intentionally taken the package and thrown it he would not have threatened
Palsgraf’s safety from the appearances of the circumstances to a reasonable person. Long Island Railroad’s
liability for an inadvertent or unintentional act cannot be greater than it would be if the act had been
intentional.
Hay (or Bourhill) v Young
Facts
A pregnant lady (Bourhill), upon disembarking from a tram, went to collect her luggage from the
luggage storage area
At the luggage storage area, she heard a motorcyclist crash (50ft away); the motorcyclist was killed by
the crash. She later saw blood on the road
The pregnant lady suffered nervous shock and later gave birth to a stillborn child
Issue
Could the claimant recover from the estate of the motorcyclist? The Court held NO, because There was
no foreseeable harm or relationship between the motorcyclist and Bourhill, nor was there a close
relationship (PROXIMITY). The court held, that it is clear that the motorcyclist owed some duty of care,
to the driver, to the other road users but he did not owe duty of care to the mere passer-by on the
street as harm cased to the person is unforeseeable.
In Sydney Water v Tuarano the High Court held, in considering whether Sydney Water owed a duty of care
to Mrs Turano it was relevant to consider the interval between the installation of the water main and the
accident. In the intervening 20 years the tree grew on land owned by Liverpool Council and the risk of its
failure was one over which the Council and not Sydney Water had control. The Court found that the trial
judge had been correct to conclude that Sydney Water did not in the circumstances owe a duty of care to
Mrs Turano.
The question of foreseeability is asked at every stage - 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. i.e. Duty - 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 former may result in
damage of some kind to the person or property of the latter:… … [BREACH] The breach question requires
proof that it was reasonably foreseeable as a possibility that the kind of carelessness charged against the
defendant might cause damage of some kind to the plaintiff's person or property … [Remoteness] Of
Document Summary
The defendant might try to establish a defence for e. g. contributory negligence, voluntary assumption of risk. The duty of care, traditionally works, through recognised categories and is expanded incrementally through analogy. Applying the test establishing a duty of care in road traffic authority of nsw v dederer (2007) 234. Clr 330: identify the putative (acknowledged or accepted) duty, articulate the test for establishing the duty, assess whether the putative duty would be imposed. Test of duty of care sullivan v moody starts with the assessment of whether it is an established or novel duty of care. If established, then, duty of care exists, go straight into salient features. Duty is imposed by the law and look at the relationship between p and d. Identifying the possible duty: a duty is imposed by operation of law it must be generalisable and universalisible. A duty must be owed to a class of people articulate to whom the duty is owed.
